UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, BURTON, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant ADONIS L. FITZPATRICK 

United States Army, Appellant 

ARMY 20140725 

Headquarters, Fort Stewart 

John T. Rothwell, Military Judge 

Lieutenant Colonel Daniel D. Grieser, Acting Staff Judge Advocate 

For Appellant: Captain Scott A. Martin, JA (argued); Lieutenant Colonel Charles D. 

Lozano, JA; Captain Heather L. Tregle, JA; Captain Scott A. Martin, JA (on brief). 

For Appellee: Captain Samuel E. Landes, JA (argued); Colonel Mark H. Sydenham, 

JA; Lieutenant Colonel A.G. Courie III, JA; Lieutenant Colonel Daniel D. Derner, 

JA; Captain Samuel E. Landes, JA (on brief). 

7 December 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of disobedience of a lawful order, two 

specifications of indecent acts, and one specification of adultery, in violation of 

Articles 92, 120, and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 

and 934 (2006 & Supp. II 2009; 2006 & Supp. IV 2011; 2006 & Supp. V 2012) 

[hereinafter UCMJ]. The military judge also convicted appellant, contrary to his 

pleas, of one specification of indecent acts, and three specifications of incest, in 

violation of Articles 120 and 134, UCMJ. The military judge sentenced appellant to 

a dishonorable discharge, confinement for eight years, forfeiture of all pay and 

allowances, and reduction to E-1. The convening authority approved only seven 

years and eleven months of confinement and the remainder of the adjudged sentence. 
FITZPATRICK—ARMY 20140725 

2

This case is before us for review under Article 66, UCMJ. Appellate defense 

counsel assigns five errors to this court, one of which warrants discussion and relief. 

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982) that we find, after due consideration, to be without merit.1

Appellant alleges that Specifications 1 and 4 of Charge III and Specification 3 

of Additional Charge III are legally and factually insufficient with respect to clause 

1, Article 134, UCMJ, because the government presented no evidence that the 

charged conduct took place within the exclusive or concurrent jurisdiction of the 

United States. Appellant argues and the government concedes that this court should 

set aside that portion of the findings alleging a clause 3 offense but affirm the 

specifications as general disorders under clause 2 of Article 134, UCMJ. 

 

 

1

 In his personally assigned errors appellant asserts, pursuant to a sworn declaration, 

his trial defense counsel was ineffective because he failed to call Ms. MB, appellant’s 

girlfriend, as a witness. Appellant alleges Ms. MB could have testified that the events 

underlying Specification 2 of Charge I did not take place during the alleged time 

frame. On 29 August 2016, we granted a request by government counsel by ordering 

affidavits from trial defense counsel in response to appellant’s personally assigned 

errors alleging ineffective assistance of counsel. After this court received affidavits 

from trial defense counsel, appellate defense counsel submitted additional Grostefon 

matters in response to those affidavits. Appellant himself submitted no additional 

documentation in support of the aforementioned assertions. 

Upon review of the entire record of trial in conjunction with the affidavits submitted 

by trial defense counsel in response to the order, we disagree with appellant’s 

assertions of ineffective assistance of counsel and conclude an evidentiary hearing is 

not warranted under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 

(1967). The facts in appellant’s allegations, even if true, “would not result in 

relief.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Further, “the 

appellate filings and the record as a whole ‘compellingly demonstrate’ the 

improbability of [appellant’s allegations].” Id. Applying the first, second, and 

fourth Ginn principles, we reject appellant’s ineffective assistance claims. See Id. 

As articulated in their affidavits, the tactical decisions made by defense counsel are 

not decisions we would second guess, and we are convinced appellant has not met 

his burden of establishing ineffective assistance of counsel as required by United 

States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland v. Washington, 

466 U.S. 668, 687 (1984)). 
FITZPATRICK—ARMY 20140725 

3

LAW AND DISCUSSION 

On consideration of the entire record, we agree that Specifications 1 and 4 of 

Charge III and Specification 3 of Additional Charge III are legally and factually 

insufficient because the record omits evidence that appellant’s conduct occurred at a 

place of exclusive or concurrent federal jurisdiction. Therefore, we set aside that 

portion of the findings alleging a clause 3 offense and affirm Specification 3 of 

Additional Charge III as a general disorder under clause 2 of Article 134, UCMJ in 

our decretal paragraph. 

After removing the portion of the finding alleging a clause 3 offense for 

Specification 1 of Charge III, we find that it constitutes the same conduct alleged as 

Specification 1 of Charge I.2 Accordingly, we dismiss Specification 1 of Charge III, 

the lesser-included offense, in our decretal paragraph. 

After removing the portion of the finding alleging a clause 3 offense for 

Specification 4 of Charge III, we find that it constitutes the same conduct alleged as 

Specification 3 of Charge I.3 We note the date ranges as charged for both 

specifications are exactly the same: “on or about 1 September 2011, and on or about 

8 January 2012.” However, appellant pleaded guilty and was convicted by 

exceptions and substitutions to Specification 3 of Charge I “between on or about 1 

January 2012, and on or about 27 June 2012.” Thus, Specification 4 of Charge III 

 

2

 Appellant pleaded guilty and was convicted of Specification 1 of Charge I, in 

violation of Article 120, UCMJ, as follows: 

[Appellant], U.S. Army, did, at or near Ft. Carson, 

Colorado, between on or about 1 July 2009, and on or 

about 30 June 2010, wrongfully commit indecent conduct, 

to wit: engaging in sexual intercourse with Ms. [FS], his 

daughter. 

3

 Appellant pleaded guilty and was convicted of Specification 3 of Charge I, in 

violation of Article 120, UCMJ, as follows: 

[Appellant], U.S. Army, did, at or near Ft. Stewart, 

Georgia, between on or about 1 January 2012 and on or 

about 27 June 2012, on divers occasions wrongfully 

commit indecent conduct, to wit: engaging in sexual 

intercourse with Ms. [FS], his daughter. 
FITZPATRICK—ARMY 20140725 

4

and Specification 3 of Charge I allege the same misconduct over the date range of 

“1 January 2012 to 8 January 2012.” 

In light of our “duty” under Article 66(c), UCMJ, to “affirm only such 

findings of guilty . . . as [we] . . . determine, on the basis of the entire record should 

be approved,” we will exercise this “highly discretionary power” here and dismiss 

Specification 4 of Charge III.4

 United States v. Butcher, 56 M.J. 87, 93 (C.A.A.F. 

2001). 

Having considered our superior court’s guidance in both United States v. 

Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), and United States v. Sales, 22 M.J. 305 

(C.M.A. 1986), a rehearing is warranted. The military judge found the maximum 

punishment for each specification of assimilated incest to be twelve years, the 

greatest maximum sentence of any of the offenses of which appellant was convicted. 

See United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). Our dismissal of 

two specifications initially charged as assimilated incest, coupled with amending the 

third incest specification to encompass a clause 2 violation, causes a significant 

impact on the sentencing landscape of this case. Under these unique circumstances, 

we are not “convinced that . . . [appellant’s] sentence would have been at least of a 

certain magnitude.” United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986). 

CONCLUSION 

On consideration of the entire record, the findings of guilty of Specification 1 

of Charge III and Specification 4 of Charge III are set aside and dismissed. We 

AFFIRM only so much of the findings of guilty of Specification 3 of Additional 

Charge III as finds that: 

[Appellant], U.S. Army, did, at or near Ft. Stewart, 

Georgia, on divers occasions between or about 1 March 

2012 and between on or about 1 August 2013, commit the 

crime of incest by engaging in sexual intercourse with Ms. 

[FS], a person whom he knows he is related to, and that 

said conduct was of a nature to bring discredit upon the 

armed forces. 

The remaining findings of guilty are AFFIRMED. 

After analyzing the totality of circumstances presented by appellant’s case in 

accordance with the principles and factors articulated by our superior court in 

Winckelmann, we set aside the sentence. A rehearing on the sentence may be 

 

4

 The military judge’s merger of Specification 3 of Charge I with Specification 4 of 

Charge III for sentencing purposes influenced this decision.
FITZPATRICK—ARMY 20140725 

5

ordered by the same or a different convening authority. All rights, privileges, and 

property, of which appellant has been deprived by virtue of that portion of his 

findings set aside by this decision, are ordered restored. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: