UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, MORAN, and GALLAGHER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist ANTHONY M. RABY 

United States Army, Appellant 

ARMY 20110395 

Headquarters, U.S. Army Garrison Fort Meade 

Denise R. Lind, Military Judge 

Lieutenant Colonel Elizabeth G. Marotta, Staff Judge Advocate 

For Appellant: Captain John L. Schriver, JA; Captain Ian M. Guy, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief). 

18 December 2012 

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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 aggravated sexual abuse of a child and sodomy of a child 

who had not attained the age of twelve years, in violation of Articles 120 and 125, 

Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006 & Supp. III 2009) 

[hereinafter UCMJ]. Contrary to appellant’s pleas, the military judge convicted him 

of rape of a child who had not attained the age of twelve years1

 and failure to obey a 

                                                           

1

 Subsequent to announcing the findings, the military judge amended the rape of a 

child specification by reducing the charged time period to reflect the facts. When 

restating the amended specification, she erroneously characterized the victim as “a 

child who had attained the age of twelve years.” This was simply a misstatement by 

the military judge that went unnoticed by all the trial participants. In this case, the 

clear intent of the military judge, and the understanding of the parties, was that the 

amendment of the specification did not affect the finding as to the victim’s age—a 

(continued . . .) 
RABY—ARMY 20110395 

2

lawful order, in violation of Articles 120 and 92, respectively. Appellant was also 

convicted, contrary to his plea, of failing to comply with a protective order in 

violation of a state criminal law, assimilated into federal law pursuant to 18 U.S.C. 

§ 13, in violation of Clauses 2 and 3 of Article 134, UCMJ. The military judge 

sentenced appellant to a dishonorable discharge, confinement for thirty-one years, 

and reduction to the grade of E-1. The convening authority approved the adjudged 

sentence.2

This case was submitted to us for review on its merits under Article 66, 

UCMJ. However, although not raised, we conclude the staff judge advocate (SJA) 

failed to correctly advise the convening authority concerning the Article 134, UCMJ, 

offense. This error necessitates relief. 

A convening authority’s action implicitly approves the findings as reported by 

the SJA in her post-trial recommendation (SJAR). United States v. Diaz, 40 M.J. 

335, 337 (C.M.A. 1994). See UCMJ art. 60(d); Rule for Courts-Martial 1106(d)(3). 

In this case, the SJAR, upon which the convening authority relied to approve the 

findings and sentence, included a result of trial that erroneously reported appellant 

was acquitted of Additional Charge II, the Article 134, UCMJ, offense mentioned 

above. “[A]bsent contrary evidence, when a convening authority does not address 

findings in his action, he approves only the findings of guilty as correctly stated in 

[the SJAR].” United States v. Henderson, 56 M.J. 911, 912–13 (Army Ct. Crim. 

App. 2002). As was the case in Henderson, we are faced with a scenario wherein the 

SJAR “omits or misstates a finding of guilty.” Id. Applying Henderson to the 

present case, we have no jurisdiction to affirm the Article 134, UCMJ, offense. 

Because we may act “only with respect to the findings and sentence as 

approved by the convening authority,” UCMJ art. 66(c), we can “either affirm only 

those findings of guilty (or portions thereof) that are correctly and unambiguously 

stated in the SJAR, or return the case to the convening authority for a new SJAR and 

action.” Henderson, 56 M.J. at 913. In the interest of judicial economy, we will set 

aside the findings of guilty of the Article 134, UCMJ, offense. 

 

(. . . continued) 

child who had not attained the age of twelve years. Accordingly, no corrective 

action is warranted. Cf. United States v. Perkins, 56 M.J. 825, 827 (Army Ct. Crim. 

App. 2001). 

2

 The convening authority waived appellant’s automatic forfeitures for six months, 

with direction that they be paid to appellant’s spouse.
RABY—ARMY 20110395 

3

CONCLUSION 

We have considered the record of trial and appellant’s assertions of error 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which 

warrant discussion or relief. The findings of guilty of the Specification of 

Additional Charge II and Additional Charge II are set aside. The remaining findings 

are AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire 

record, and in accordance with the principles of United States v. Sales, 22 M.J. 305 

(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include 

the factors identified by Judge Baker in his concurring opinion in Moffeit, the 

approved sentence is AFFIRMED.3 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

                                                           

3

 In order to reassess, we must be confident “that, absent any error, the sentence 

adjudged would have been of at least a certain severity.” Sales, 22 M.J. at 308. 

See Moffeit, 63 M.J. at 43 (Baker, J., concurring in the result). In this case, the 

penalty landscape did not change, as appellant still faces a maximum punishment of 

life without the eligibility for parole for the remaining offenses. In addition, the 

aggravating circumstances of appellant’s crimes are unchanged. Therefore, in light 

of the remaining charges and their serious nature, we are confident the court would 

have adjudged a sentence of at least a dishonorable discharge, confinement for 

thirty-one years, and reduction to the grade of E-1. 

MALCOLM H. SQUIRES, JR.                          

Clerk of Court

FOR THE COURT: