## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist DRAKE S. McANINCH

United States Army, Appellant

ARMY 20170091

Headquarters, United States Army Alaska Jeffrey Lippert and Lanny J . Acosta, Military Judges

Colonel Erik L. Chris tiansen, Staff Judge A dvocate (pretrial)

Colonel Roseanne M. B ennett, Staff Judge Adv ocate (recommendati on)

Lieutenant Colonel Ste phen W. McGaha, Acti ng Staff Judge Advoca te (addendum)

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Zachary Spilman, Esquire (on motion for remand).

For Appellee: Lieutenant Col onel Eric K. Stafford, JA.

13 March 2018

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

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

Per Curiam:

A military judge sitti ng as a general court-martial convicted appellant, contrary to his pleas, of three specifications of rape of a chi ld, one spec ification of sexual abuse of a child, and on e specification of production of child pornography,

in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b, 934. The military judge sentence d the accuse d to a dishonorable discharge, confinement for twenty -four years, forfeiture of all pay and allowances, and reduction to the grade of E -1. The acting staff judge advo cate’s addendum to the post-trial recommendation (addendum) agreed w ith defense as sertions that the post-trial proces sing delay of app ellant’s case wa s unreasonabl e and recommended disapproving one month of confinement. The convening authority approved the findings and all of t he sentence except f or one month of confin ement.

This case is before us for Arti cle 66, UCMJ, rev iew. Although this case has yet to be briefed on any assignment of err or, it is before us p ursuant to appellant’s unopposed “Motion For Remand For A New Convening Authority’s Ac tion.”McANINCH—ARMY 20170091

2 Appellant asserts th at the addendum conta ined new ma tters in th e form of a Rule for Courts-Martial (R.C.M.) 1105A l etter from the ch ild victim’s mo ther and that

neither the addendum no r the R.C.M. 1105A l etter were served on either appellant or appellant’s counsel.

Granting the motion w ould return jurisdictio n over the case to the convening authority. We see no issue in raising this assignment of error as a motion because, if such relief is required, resolvin g the issue early serves the n eeds of judicial economy. Appellant serv ed the motion along w ith supporting aff idavits on 6 March 2018. Government ap pellate counsel inform ed the court on 9 Mar ch 2018 the government did not o ppose the motion.

LAW AND DISCUSSION

Appellant was convic ted of numerous offenses occurring between on or about

3 June 2013 and on or about 31 Jul y 2014. The limitation to th e convening authority’s discretion as to act ion on the finding s and sentenc e does not apply where

“at least one offens e resulting i n a finding of guilty occurred prior to 24 June 2014,” in which case the pr ior version of R.C .M. 1107 applies. See R.C.M. 1107, note. Thus, the convening authority ha d the discretion in taking acti on on appellant’s case to disapprove some or all of appe llant’s findings and sentence. See R.C.M. 1107(c), (d)(1) (2012 ed.).

We will not speculate as to what action the convening authority would have taken in this case if appellant had been allowed to submit mate rials to address the

new R.C.M. 1105A matters. We th erefore grant relief as directe d in our decretal paragraph.

CONCLUSION

The convening author ity’s action, dated 4 January 2018, is set aside. The

record of trial is returned to the Judge Advocate General for a new SJAR, Addendum, and action by the same or a diffe rent conve ning autho rity in accordance with Article 60(c)-(e), UCMJ. We also note, the promulgating o rder date d 4 January 2018 incorrectly lists “Charge I” as a vio lation of “Article 12 0” rather than Article

120b and should be corrected in a new promulgati ng order upon i ssuance of the new

action.

FOR THE COURT:

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