## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class DEONTRAY D. COLEMAN United States Army, Appellant

ARMY 20170013

Headquarters, 1st Cavalry Div ision (Rear) (Provisional) Jacob D. Bashore, Military Judge
Lieutenant Colonel Scott E . Linger, Staff Judge Advocate

For Appellant: Colonel Mary J. B radley, JA; Major Julie L. Bor chers, JA; Captain Zachary A. Szilagyi, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Meredith M. Picard, JA; Captain Jessika M. Newsome, JA (on brief).

5 October 2018

--------------------------------- SUMMARY DISPOSITION

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

FLEMING, Judge:

In this appeal, we p rovide appella nt relief by dismissing, as r ecommended by the military judge, one specifica tion of failure to obey an ord er.

A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to hi s pleas, of one specifi cation of failure to go to his place of duty, two specifications of disrespect towa rd a superior commissioned off icer, one specification of insubordinate c onduct toward a noncommissioned officer, and one specification of failure to obey an order, i n violation of Arti cles 86, 89, 91 and 92, Uniform Code of Military Justic e [UCMJ], 10 U.S .C. §§ 886, 889, 891, and 892 (2012). The military j udge convicted appellant, contrary to hi s pleas, of one specification of attempted unpreme ditated murder, one specifica tion of failure to obey an order, and two specifica tions of willfull y discharging a firearm under
circumstances to end anger human life, in violation of Articles 80, 92, and 134, UCMJ, 10 U.S.C. §§ 880, 892, and 934. The con vening authority approved theCOLEMAN – ARMY 20170013

2 adjudged sentence of a dishonorable discharge, ten years and ei ght months confinement, and a re duction to the grade of E-1. Appellant wa s credited with two hundred and fifty-five days of confinement against the sentence to confinement.

This case is before us for rev iew pursuant to A rticle 66, UCMJ. Appellant raises two assignments of error w hich do not warr ant discussion or relief. Appellant personally raises three matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), one of which wa rrants discussion and relief.

BACKGROUND The military judge convicted appel lant, contrary to his pleas, of disobeying an order from his First Sergeant (1SG) not to leave a building (Sp ecification 2 of Charge V).

Appellant’s 1SG testif ied appellant was hav ing emoti onal issues during a counseling session with his comp any commander. P rior to the co unseling session, appellant expressed a desire to go to the hospital to receive b ehavioral health
assistance. In the mi ddle of the counselin g session, 1SG took appellant to a separate conference room so appellant co uld calm down. Whi le talking to the 1SG, appellant expressed a desire to see a mental health doctor. After appell ant expressed this desire, he attempted to leave the conference room. Appellant’s 1SG ordered appellant not to lea ve the building, but a ppellant departed and went to the hospital
for mental health assistance.

Immediately after an nouncing findings , the military judge state d “[t]o the
extent that the convening author ity or any other authority has the authority to dismiss Specificati on 2 of Charge V, I reco mmend that such auth ority dismiss Specification 2 of Charge V.” T he military judg e did not provi de a reason for his
recommendation.

During the post-trial phase, the staff j udge advocate’s recomme ndation (SJAR) to the convening authori ty did not mention the military judge’s
recommendation to dismi ss Specification 2 of Charge V. Appella nt’s submission
under Rules for Courts-Martial 1105 and 1106 references the mil itary judge’s
recommendation and requests the c onvening authority to dismiss the specification. The staff judge advoc ate’s addendum to the SJAR states “Defense Counsel requests . . . you dismiss Specifi cation 2 of Charge V ,” but fails to st ate the mil itary judge
recommended dismissal of the specification.

On the basis of this record, where the mi litary judge, the find er-of-fact,
recommended the dismissal of a s pecification and the government failed in writing twice to notify the convening authority of the military judge’s recommendation, we
exercise our aut hority under Article 66(c ), UCMJ to dismiss the specification.COLEMAN – ARMY 20170013

3 CONCLUSION

On consideration of the entire record, the find ing of guilty of Specification 2 of Charge V, failure t o obey an order, in vi olation of Article 92, UCMJ, is SET ASIDE and that sp ecification is D ISMISSED. The remaining findi ngs of guilty are

AFFIRMED.

We reassess the sentence in accordance with the principles of United States v.
Wincklemann , 73 M.J. 11 (C.A. A.F. 2013) and United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986). We are c onfident the military judge woul d have adjudged a sentence at least as severe as the approved sentence absent the error. An attempted unpremeditated murder conviction alone carries a maximum senten ce of a dishonorable discharge , confinement for li fe with the eligibili ty of parole, and
reduction to E-1 . The maximum punishment for Specification 2 o f Charge IV is a bad-conduct discharge, six months of confinement, and reduction to E-1. In light of
the sentence receive d and the gravamen of t he remaining offense s of which appellant was convicted, we AFFI RM the approve d sentence. All rights, pr ivileges, and property of which appellant has b een deprived by v irtue of that portion of the findings set aside by this decision, are ordered restored. See UCMJ art. 58b(c) and 75(a).

Senior Judge BURTON an d Judge HAGLER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: