## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before

MULLIGAN, LEVIN, 1 and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class ALEXANDER E. DENSON United States Army, Appellant

ARMY 20150137

Headquarters, United States Army Alaska Douglas Watkins, Militar y Judge (arraignment) Andrew Glass, Milit ary Judge (trial)

Colonel Erik L. Christia nsen, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Majo r Christopher D. Coleman JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).

18 August 2017

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

LEVIN, Judge:

Appellant raises four errors, three of which merit di scussion and relief. First, appellant asks that we set aside his convic tions for sexual assau lt and abusive sexual contact in light of United States v. Hills , 75 M.J. 350 (C .A.A.F. 2016) and United

States v. Hukill , 76 M.J. 219 (C.A.A.F . 2017). Here, the fact finder – over defense objection – was permitted to consider ap pellant’s propensity to commit the charged

offenses based on the factfinder’s assessment of the evidence with respect to three other charged offenses. 2 This was error and warrants relief. Second, appellant

1 Judge LEVIN took final act ion while on active duty.

2 The military judge de nied the motion with respect to one specificat ion of sexual assault and ultimately acqu itted appellant of that particular specification.DENSON—ARMY 20150137

2 alleges, and the government concedes in part, that several of the assault charges

amounted to an unreasonable multiplication of charges. We agree with some, but not all, of appellant’s aver ments in that regard. Fina lly, appellant asks that we provide sentencing reli ef because it took 303 days for the convening authority to

take action on his case. Beca use we find a due pr ocess violation, we agree and grant

relief. 3

This case is before us fo r review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012) [hereinafter UCMJ]. A military judg e sitting as a general court-martial co nvicted appellant, contrary to his pleas, of one specification of false official statement, two specifications of sexual as sault, two specifications of abusive sexual contact, one specification of aggravated assault, seven specifications of assault consummated by a battery, a nd two specifications of communicating a threat, in violatio n of Articles 107, 1 20, 128, and 134, UC MJ. The convening authority approved th e adjudged sentence to a bad-conduct discharge, confinement for sixty-eight months, forfei ture of all pay and allowanc es, and reduction to Private E-1. Appellant was credited with three days against the sentence to confinement.

LAW AND DISCUSSION

A. The Admission of Mi litary Rule of Evidence 413 Propensity Evidence

1. Factual Backgrou nd for the Article 120 , UCMJ, Offenses

With respect to the allegations involv ing sexual offenses, appellant’s crimes fall into four categories : misconduct relating to AK; misconduct relating to AS; misconduct relating to LR; and misconduct relating to EC. All of the misconduct

occurred within a sixteen-month period.

3 Pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appellant personally asserts a number of issues. Among th ose issues, appellant claims that the record of trial is incomplete because his appellate defense couns el were unable to view Prosecution Exhibit 9, a video of appe llant’s interview with the United States Army Criminal Investigation Co mmand (CID). This statemen t, in part, served as the basis for appellant’s convicti on for the Specification of Charge I, making a false

official statement. As neit her counsel nor appellant submitted an affidavit, there is

no evidence before this court that appellate defens e counsel were no t able to view the exhibit. Furthermore, as part of our own statutory ma ndate to conduct a de novo review of the factual and lega l sufficiency of a conviction, United States v. Walters

, 58 M.J. 391, 395 (C.A.A .F. 2003), we have re viewed the record of trial and find this

issue to be without merit. To the exte nt the other issues personally raised by appellant are not mooted by our resolution of other assignments of error, they merit

neither discussi on nor relief.DENSON—ARMY 20150137

3 On 13 May 2013, a ppellant and AK met in person after having previously met online. While together in appellant’s car, appellant pulled out a knife and poked AK’s upper thigh, asking if it hurt. The record is silent as to whether AK responded to appellant’s questi on. The next day, si tting in appellant’s car, appellant again pulled out a knife and poked AK, asking if it hurt. AK responded, “Yeah, you already knew that would hurt because you had do ne it before.” That same evening, appellant placed a burning end of his ci garette on the middle of AK’s foot. AK pulled away and appellant resp onded, “I’m abus ive, get used to it.” Apparently not heeding his warning, AK moved to appellant’s lap and the two started kissing. After first kissing AK’s breast in a playful way, appellant then bit down hard despite AK’s pleas for him to stop. Shortly thereafter, AK advised appellant she no longer wished to see him and, within an hour, reported the incident to the Anchorage Police Department.

On 11 September 2013, ap pellant and AS met in person after having previously met online. While appellant and AS were watching a movie in AS’s apartment, appellant exposed his penis and asked AS to perform oral sex on him. AS complied. Later that ni ght, AS was voluntarily guid ed onto “all fours” and appellant started to penetrat e her anus. AS directed a ppellant to stop, explaining that it hurt. Although he stopped briefly, appellant bega n to thrust his penis into AS’s anus again. Later, appe llant acknowledged to a CID agent that at the time of his statement, he felt like he had sexually assaulted AS. Signifi cantly, appellant told the agent that at the time of the intercourse , he “figured it would be okay” and AS had given him permission to perform anal sex on her previously.

In December 2013, appell ant was with LR, whom he had previously met

online and then married. Afte r initially consenting to anal intercourse, LR told appellant to stop, explaining that “it really hurts.” Instead of stopping, appellant applied more pressure on her back, pushed her face down into a pillow, and stated, “No. You’ll be fine, ta ke it. It’ll get better after a minut e or two.”

Finally, in August 20 14, appellant was with EC, wh om he had previously met

online and with whom he ha d engaged in a sexual rela tionship the year before. 4
While in EC’s home, appellant became aggr essive with EC, grabbing her breasts, vagina and buttocks without her permission. Althou gh EC struggled with appellant and managed to get away momentarily, ap pellant grabbed her a nd held her by the throat against a door. Appellant releas ed EC when EC’s roommate awoke and

interceded.

Prior to trial, the government gave th e defense notice it in tended to offer the charged offenses as prop ensity evidence under M ilitary Rule of Evidence

4 Trial defense counsel argued that these particular we bsites were “h ook-up sites.”

A reasonable infe rence, no doubt.DENSON—ARMY 20150137

4 [hereinafter Mil. R. Evid.] 413 and moved the co urt to make a preliminary ruling on admissibility. The defense opposed the government’s motion to admit evidence

under Mil. R. Evid. 4 13. Although the milita ry judge deferred ru ling, he ultimately granted the government’s motion.

2. Hills and Hukill Ap plied to this Case

After appellant's court-mar tial, our superior court held it is constitutional error for a military judge to give an instru ction to a panel that permits Mil. R. Evid. 413 to be applied to evidence of charged sexual misconduct. Hills , 75 M.J. at 352. Our superior court reasoned:

The instructions in this ca se provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to disc ard the accused' s presumption of innocence, and with two different burdens of proof - preponderance of the evidence and beyond a reasonable doubt. Evaluating th e instructions in to to, we cannot say that Appellant's right to a pr esumption of innocence and to be convicted only by proof be yond a reasonab le doubt was not seriously muddled an d compromised by the

instructions as a whole.

Id . at 357. Recently, in Hukill , the Court of Appeals for the Armed Forces (C.A.A.F.) explained that the Hills reasoning applies to tr ials by military judge

alone. Hukill , 76 M.J. at 220. In appellant's court-martial, the military judge allowed the propensity evidence involving ch arged offenses to be used against each charged offense for which appellant was convicted and, therefore, created

constitutional error. Id

.

If instructional error is found when there are cons titutional dimensions at play, this court tests for prejudice under the standard of harmless beyond a

reasonable doubt. United States v. Wolford , 62 M.J. 418, 420 (C .A.A.F. 2006). The inquiry for determining whethe r constitutional error is ha rmless beyond a reasonable doubt is whether, beyond a re asonable doubt, the error di d not contribute to the

defendant's convicti on or sentence. United States v. Kreutzer , 61 M.J. 293, 298 (C.A.A.F. 2005). An error is not harmless beyond a reasonable doubt when there is

a reasonable possibility the error comp lained of might have contributed to the

conviction. United States v. Moran , 65 M.J. 178, 187 (C.A.A.F. 2007); United

States v. Chandler , 74 M.J. 674, 685 (Arm y Ct. Crim. App. 2015).

Here, not only did the m ilitary judge’s admission of propensity evidence provide for the lessening of the burden of proof, the government's cl osing argumentDENSON—ARMY 20150137

5 also drew attention to the propensity evid ence. On at least three occasions, trial counsel urged the factfinder to consider the accused’s propensity to commit sexual acts of violence agains t several othe r victims.

Having reviewed the evidence, given that this is a case of preserved error, we are not convinced beyond a reasonable doubt the propen sity instruction did not contribute to the findings of guilty or appellant's senten ce. Thus, the findings for these specifications and char ges and the sentence cannot stand. We grant relief in our decretal paragraph.

B. Unreasonable Multiplication of Charges

With respect to this assignment of erro r, which appellant ha s couched in terms of unreasonable multiplicat ion of charges, appellant’ s charges fall into three categories: assault charges in volving LR in Janu ary 2014; as sault charge s involving LR in February 2014; and assault charges i nvolving AK in Ma y 2013. We first address the assault charges involving LR.

1. Specifications 1 and 2 of Charge III and Specific ations 3 and 4 of Charge III

Appellant was found guilty, inter alia , of the following violations of the

UCMJ:

CHARGE III: Article 128:

SPECIFICATION 1: [In that appellant] [d ]id at or near

Joint Base Elmendorf-Richard son, Alaska, between about 1 January 2014 and 30 Janu ary 2014, commit an assault upon Mrs. L.R. by putting hi s arm around her neck and applying force likely to pro duce death or grievous bodily harm, to wit: strangul ation with his arm.

SPECIFICATION 2: [In that appellant] [d ]id at or near

Joint Base Elmendorf-Richard son, Alaska, between about 1 January 2014 and 30 Januar y 2014, unlawfully strike

Mrs. L.R. on the head with his hand.

These specifications stem from appellant's conduc t during a single incident in late January 2014.DENSON—ARMY 20150137

6 Appellant was also found guilty, inter alia , of the following violations of the

UCMJ:

CHARGE III: Article 128:

SPECIFICATION 3: [In that appellant] [d ]id at or near

Joint Base Elmendorf-Richard son, Alaska, between about 1 February 2014 and 16 February 2014, unlawfully strike

Mrs. L.R. on the face with his knee.

SPECIFICATION 4: [In that appellant] [d ]id at or near

Joint Base Elmendorf-Richard son, Alaska, between about 1 February 2014 and 16 Februa ry 2014, unlawfully pull

the hair of Mrs. L.R. with his hands.

These specifications stem fr om appellant's conduct duri ng a single incident in February 2014.

After the military judge ruled that he would merge Specifications 1 and 2 of Charge III for sentencing purposes, as well as merge Specifications 3 and 4 of Charge III for sentencing purposes, he asked trial de fense counsel if there was “[a]nything else?” Counsel responded, “N o, Your Honor. Th ank you.” Defense

counsel did not file a motion or otherwis e raise the issue of the unreasonable multiplication of charges for findings.

Here, the government has conceded the i ssue. Therefore, we need not decide whether this is a “unit of prosecution” or unreasonable multip lication of charges

issue. We also need not decide whether ap pellant has preserved th e issue for appeal. As the government conc edes that the specifications ar e unreasonably multiplied and we have no reason to reject this conce ssion, we provide appellant relief below.

2. Unreasonable Multiplicatio n of Charges as Applied to Specifications 1 and 2 of Additional Charge II

With respect to Specifications 1 and 2 of Additional Charge II, we find no error. Appellant was found guilty, inter alia , of the following violations of the

UCMJ:

ADDITIONAL CHARGE II: Article 128:

SPECIFICATION 1: [In that appellant] [d ]id at or near Anchorage, Alaska, on or about 16 May 2013, unlawfully

burn Ms. A.K.’s foot wi th a cigarette.DENSON—ARMY 20150137

7 SPECIFICATION 2: [In that appellant] [d ]id at or near Anchorage, Alaska, on or about 16 May 2013, unlawfully poke Ms. A.K.’s leg with a knife.

Here, the Quiroz factors on balance weigh in favor of the government. See

United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001). First, defense counsel, after findings, ma de a motion to merge thes e specifications - only for sentencing purposes - on the grounds that they constituted an unreasonable multiplication of charges. This factor weighs in favor of the government.

Regarding the second Quiroz factor, it appear s that Specificat ions 1 and 2 of Additional Charge II were aimed at separa te criminal acts. First, appellant used separate objects to assault AK: a knife and then a lit cigarette. Second, there was a break between incidents, rather than a continuous assault. This factor weighs in favor of the government.

Regarding the thir d factor, findings of guilty ag ainst appellant for all of the language in the specificati ons delineated above do not exaggerate appellant's criminality. This factor weig hs in favor of the government.

Regarding the fourth factor, appellant's punitive exposure was not unreasonably increased becaus e the court merged the spec ifications for sentencing purposes. This factor weighs in favor of the government.

Finally, because the two ac ts addressed separate act s of criminal conduct, there is no evidence of prosecutorial ove rreaching or a buse in the dr afting of the charges. Thus, the fifth factor we ighs in favor of the government.

On balance, we find the Quiroz factors with respect to these specifications weigh in favor of the government and, thus, no relief is warranted.

C. Speedy Post-Trial Processing

Appellant requests relief for dilatory post-t rial processing, where the convening authority took action 303 days after the court-mar tial concluded. Of that period, none was attributab le to defense delay. See United States v. Banks , 75 M.J. 746, 748 (Army Ct. Crim. App. 2016). Appellant requests relief pursuant to this court's statutory authority. See Article 66(c), UCMJ; United States v. Collazo , 53 M.J. 721 (Army Ct. Crim. Ap p. 2000) (recognizing the statutory authority of Courts of Criminal Appeals to grant relief for dilatory post-trial processing).

However, given appellant's meritorious issue regarding the improper use of propensity evidence of charge d misconduct, we must determ ine if the post-trial delay violated appellant's due process rights to timely post-trial processing. See Toohey v.DENSON—ARMY 20150137

8 United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (“An app eal that need lessly takes ten years to adjudicate is un doubtedly of little use to a defendant who has been wrongly incarcerated on a te n-year sentence.”) (quoting United States v. Smith, 94 F.3d 204, 207 (6th Cir. 1996)). Appellant does not gr ound his post-tri al processing claim as a due process violation. Howeve r, we are compelled to determine whether appellant has suffered a due process violation for several reasons.

We previously articulated th e analysis to be conducted in such a situation in

United States v. Jackson , 74 M.J. 710, 718 (Army Ct. Cr im. App. 2015). First, in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our supe rior court established a “presumption of unreasonable dela y that will serve to trigger the full
[ Barker v. Wingo, 407 U.S. 514 (1972),] analysis where the action of the convening authority is not taken within 120 days of the completion of trial.” Second, our superior court in Moreno further urged this co urt to exercise “ins titutional vigilance”

in this area of law. Moreno , 63 M.J. at 143. Lastly, our statut ory authority under Article 66(c) requires us to review the “entire record.” See United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 200 2) (“Our Court has consistently recognized the broad power of the Courts of Crimin al Appeals to protect an accu sed.”) (citation omitted). These reasons sufficiently establish our authority to review whether appellant suffered a due process violation in the post-t rial processing of his case, even though

he did not raise this issue be fore this court. We do so while acknowledg ing that the record may be less developed given th e lack of litigation on this issue.

As noted above, in determining whether post-tri al delay resu lts in a due process violation, we apply the four-factor test announced in Barker . 407 U.S. at 530; see also Moreno, 63 M.J. at 135. These factors include (1) length of the delay, (2) reasons for the delay, (3 ) assertion of the right to a timely review and appeal, and (4) prejudice. Id. “Once this due pr ocess analysis is tr iggered by a facially unreasonable delay, the four factors are balanced, wi th no single factor being required to find that post-trial dela y constitutes a due pr ocess violation.” Moreno,

63 M.J. at 136. These f actors ultimately weigh in favor of appellant.

First, the length of the delay – 303 days - is facially unre asonable under any

standard. Id. at 142 (establishing a presumption of unreas onable delay when the convening authority takes acti on more than 120 days after the trial ends). This 794- page record, while le ngthy, was not particularly comple x or unusual. This factor weighs in favor of appellant.

Second, the government's ex planations for the delay involve a 14-d ay defense delay for errata, a 45 -day delay for the m ilitary judge to authen ticate the record of trial, a 58-day delay for the record to be transcribed, and 135-day delay for defense counsel to submit clemency on behalf of his client. With respect to the defense delay to submit cl emency, it is the gover nment’s responsibility to hold individuals accountable for the performance of their du ties in the military justice system. SeeDENSON—ARMY 20150137

9 Banks , 75 M.J. at 748-51 (holdi ng defense counsel to their statutory allowed time for post-trial). Still , we recognize that the defense re quested this dela y, and that the delay presumably benefited a ppellant. Thus, we consider these facts when deciding prejudice. With respect to the 58-day de lay for the record to be transcribed, our superior court has held “t hat personnel and administ rative issues ... are not legitimate reasons justif ying otherwise unreasonab le post-trial delay.” United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F . 2011) (“To allow caselo ads to become a factor in determining whether appellate delay is excessive would allow administrative factors to trump the Article 66 and due process ri ghts of appella nts.”) (citing
Moreno, 63 M.J. at 137) (additi onal citations and quotations omitted). The reasons for delay weigh in fa vor of ap pellant.

Third, there is no evidence before us that appellant asse rted his right to speedy post-trial processing at any time before transcri ption was comp lete, before the military judge authenticated the record of trial, or before th e convening authority took action. This factor weig hs in favor of the government.

Fourth, we apply three fact ors when analyzing prejud ice in the context of a due process violation for post-trial delay:

(1) prevention of oppres sive incarceration pending appeal;

(2) minimization of anxi ety and concer n of those convicted awaiting the outcom e of their appeals; and

(3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.

Moreno, 63 M.J. at 138-39 (citing Rheuark v. Shaw, 628 F.2d 297, 303 n. 8 (5th Cir. 1980)) (additional c itations omitted).

The first sub-factor is “dir ectly related to the success or failure” of appellant's substantive appeal. Id. at 139. “If the substantive grounds for the ap peal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive.” Id. (citing Cody v. Henderson, 936 F.2d 715, 720 (2d Cir. 1991)).

Appellant's remedy for the Mi l. R. Evid. 413 is sue is for this court to set aside appellant's sexual miscondu ct convictions and the sentence. Put another way, appellant served confinement as part of a sentence we canno t affirm. “[I]f an appeal is not frivolous, a person convicted of a cr ime may be receivi ng punishment the

effects of which can ne ver be completely reversed or living under the opprobrium ofDENSON—ARMY 20150137

10 guilt when he or she has not been properly proven guilty and may indeed be innocent

under the law.” Id. (quoting Rheuark, 628 F.2d at 304). This sub-factor weighs in favor of ap pellant.

The second sub-factor requires “an appella nt to show particularized anxiety or concern that is distinguishab le from the normal anxiet y experienced by prisoners awaiting an appella te decision.” Id. at 140. Our superior court in Moreno concluded sex-offender registration fo llowing release from confinem ent sufficiently established this sub-factor, where appellant's ultimate ly-successful appeal was still pending at the time of registration. Ap pellant has not established a factual predicate that he has been released yet from c onfinement and been placed on a sex-offender registry. Cf. United States v. Bush, 68 M.J. 96, 100 (C .A.A.F. 2009) (requiri ng an appellant to produce corroborating evidence of employment prejudice). At the same time, we are cognizant sex-offender registration is an “automatic result” after some sex crime

convictions. United States v. Riley, 72 M.J. 115, 121 (C.A .A.F. 2013) (citations omitted); see also Dep't of Def. Inst r. 1325.07, Administ ration of Military

Correctional Faciliti es and Clemency and Parole Authority, a pp'x. 4 to enclosure 2 (March 11, 2013) (est ablishing offenses requiring se x offender registration within three days of releas e from confinement, including abusive sexual contact with a child). Because appellant has not establis hed whether he has registered as a sex offender yet, this factor weighs sl ightly in favor of the government.

The third sub-factor is relevant when a rehearing is authorized, as is the case

here. Moreno, 63 M.J. at 140. “In order to prev ail on this factor an appellant must be able to specifically iden tify how he would be prej udiced at rehearing due to delay. Mere speculat ion is not enough.” Id. at 140-41 (citation omitted). Because appellant did not raise a due process claim, his brief does not address th is issue. However, we also acknowledge the difficulty on appeal “in identifying problems that would hinder an appellant' s ability to present a defe nse at a re hearing.” Id. at 141 n.

19. This factor also weighs slightly in fa vor of the government.

In balancing the Barker factors, we have an appellant who, fo r nearly one year of post-trial processing from sentenci ng to action, had a meritorious appeal warranting a rehearing. As a result of the post-trial delay, appellant served oppressive incarceration. The government 's reasons for this delay are unavailing given the constitutional rights at issue. These factors outweigh appellant's failure to assert his right to sp eedy post-trial proces sing, establish partic ularized anxiety or articulate any prejudi ce he would suffer at a rehearing. For the same reasons, we cannot conclude that the post-trial delay was harmless beyond a reasonable doubt. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2 006) (“If we conclude that an appellant has been denied the due process right to sp eedy post-trial review and appeal, ‘we grant relief unle ss this court is convince d beyond a reas onable doubt that the constitutional error is harmless.’”) (quoting Toohey, 63 M.J. at 363).DENSON—ARMY 20150137

11 Having found a due process violation, we must determin e an appropriate remedy. In Moreno, our superior court listed a range of available remedies:

(a) day-for-day reduction in confinement or confinement credit; (b) reduction of forf eitures; (c) set aside of portions of an approved se ntence including punitive discharges; (d) set aside of th e entire sentence, leaving a sentence of no punishment ; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of th e charges and specifications with or without prejudice.

63 M.J. at 143.

As in Moreno, our range of available remedi es is limited because we are authorizing a rehearing. Give n that appellant has not dem onstrated any prejudice he would face at that rehearing, dismissal of the charges and sp ecifications is not appropriate at this stage of the proceedings.

Since we are setting aside the sentence, we cannot as a matter of logic only approve certain portions of the sentence, a common reme dy when we grant relief pursuant to Arti cle 66, UCMJ.

Appellant has already served nearly half of his conf inement. In our view, the appropriate remedy is to limit the possibl e punishment that the convening authority may approve to a bad-conduct discharge, sixt y-six months confinem ent, forfeiture of all pay and allowances, and reduction to th e grade of E–1, unle ss the government tries appellant for ad ditional offenses not tried at the first court-martial. See Article 63, UCMJ.

CONCLUSION

The findings of guilty as to Charge II and its spec ifications and Additional Charge I and its specifications are set aside in light of our superior court’s decisions

in Hills and Hukill . 75 M.J. 350; 76 M.J. 219.

Specifications 2 and 4 of Charge III are conditionally dismissed based on an unreasonable multiplicat ion of charges. See United States v. Britton , 47 M.J. 195, 203 (C.A.A.F. 1997) (J. Effron concurring); United States v. Hines , 75 M.J. 734, 738 n.4 (Army. Ct. Crim. App. 2016); United States v. Woods , 21 M.J. 856, 876 (A.C.M.R. 1986). Our dismissa l is conditioned on Specific ations 1 and 3 of Charge III surviving the “f inal judgment” as to the le gality of the proceedings. See Article 71(c)(1), UCMJ (definin g final judgment as to the lega lity of the proceedings). The remaining findings of guilty are AFFIRMED.DENSON—ARMY 20150137

12 Additionally, the sentence is set aside. The case is returned to the same or a different convening authority. A rehear ing is directed on Charge II and its specifications, Additional Char ge I and its specifications, and the sentence. If the convening authority determines that a reh earing on those charge s is impr acticable, he may dismiss the charges and order a rehear ing on the sentence only. If the convening authority determines that a re hearing on the sentence likewise is impracticable, he may take an y other lawful action. In any event, the convening authority shall not approve a sentence in ex cess of a bad-conduct discharge, sixtysix months confinemen t, forfeiture of al l pay and allowances, and reduction to the grade of Private E–1, unless the government tries appe llant for additional offenses

not tried at the fi rst court-martial.

Senior Judge MULLIGAN and Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: