UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E-1 JOSEPH A. WARREN 

United States Army, Appellant 

ARMY 20150602 

Headquarters, 2d Infantry Division/ROK-US Combined Division 

Tiernan P. Dolan, Military Judge 

Colonel Lance S. Hamilton, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Captain Christopher D. Coleman, JA 

(on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief); Major Anne C. Hsieh, JA;. 

17 November 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

Appellant pleaded guilty at a general court-martial to one specification each 

of use, possession, and distribution of marijuana, in violation of Article 112a, 

Uniform Code of Military Justice, 10 U.S.C. § 912a (2012). The military judge 

sentenced appellant to a bad-conduct discharge and confinement for 135 days. 

Pursuant to a pretrial agreement the convening authority reduced the confinement to 

three months, but otherwise approved the punitive discharge. 

On appeal, appellant’s sole assignment of error is that the military judge erred 

when he allowed the government to elicit from appellant’s commander specific acts 

of appellant’s poor duty performance.1

 As appellant failed to preserve this issue for 

appeal, and as we do not find plain error, we do not grant appellant relief. 

 

1

 Appellant personally asserts, pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), that the military judge erred when he failed to find, sua sponte, that 

(continued . . .) 
WARREN—ARMY 20150602 

2

During sentencing the government elicited from appellant’s commander 

Captain Smith that appellant “did not want to be there, did not adhere to haircut 

standards, I thought he was just there passing the time.” The military judge 

overruled the defense relevance objection. The government then, without defense 

objection, elicited that appellant was “[n]ot somebody that really held up to the 

values that the Army represents, in my opinion. You could tell he didn’t want to be 

there, tell he was doing the bare minimum . . . so he wasn’t a stellar Soldier.” 

On appeal, appellant asserts that the elicited testimony was impermissible 

under R.C.M. 1001(b). We agree with appellant. The government also agrees, but 

argues that the defense failed to preserve the error at trial by either not objecting or 

objecting only on relevance.2

 We also agree with the government, and accordingly 

test for plain error. We find none. 

The findings of guilty and the approved sentence are AFFIRMED. 

FOR THE COURT: 

 JOHN P. TAITT 

Chief Deputy Clerk of Court 

 

(. . . continued) 

the specifications were unreasonably multiplied. Even assuming error, in the 

context of a guilty plea in which appellant specifically agreed to plead guilty to all 

three offenses in exchange for a more than ninety-eight percent reduction in his 

confinement exposure, we do not exercise our Article 66(c) authority to notice 

waived and forfeited error. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 

2001) (A court of criminal appeals is “well within its authority to determine the 

circumstances, if any, under which it would apply waiver or forfeiture. . . .”). Under 

Rule for Court-Martial [hereinafter R.C.M.] 907(b)(3)(B), a specification may be 

dismissed for multiplicity “upon timely motion” by the accused. On appeal, 

appellant asks us to disapprove one or more of the specifications, even though he did 

not move to dismiss them at trial. Of course, had appellant asked for this relief at 

trial, appellant would have been breaking his agreement to plead guilty to all three 

specifications–with uncertain results. 

2

 Evidence may be relevant, but not admissible under other rules. See Military Rule 

of Evidence 402 (“All relevant evidence is admissible except as otherwise provided 

by . . . this Manual . . . .”). 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: