UNITED STATES ARMY COURT 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. Christiansen, Staff Judge Advocate (pretrial) 

Colonel Roseanne M. Bennett, Staff Judge Advocate (recommendation) 

Lieutenant Colonel Stephen W. McGaha, Acting Staff Judge Advocate (addendum) 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman, 

Esquire (on motion for remand). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA. 

13 March 2018 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

contrary to his pleas, of three specifications of rape of a child, one specification of 

sexual abuse of a child, and one 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 sentenced the accused 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 advocate’s addendum to 

the post-trial recommendation (addendum) agreed with defense assertions that the 

post-trial processing delay of appellant’s case was unreasonable and recommended 

disapproving one month of confinement. The convening authority approved the 

findings and all of the sentence except for one month of confinement. 

 This case is before us for Article 66, UCMJ, review. Although this case has 

yet to be briefed on any assignment of error, it is before us pursuant to appellant’s 

unopposed “Motion For Remand For A New Convening Authority’s Action.” 
McANINCH—ARMY 20170091 

2 

Appellant asserts that the addendum contained new matters in the form of a Rule for 

Courts-Martial (R.C.M.) 1105A letter from the child victim’s mother and that 

neither the addendum nor the R.C.M. 1105A letter were served on either appellant or 

appellant’s counsel. 

Granting the motion would return jurisdiction 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, resolving the issue early serves the needs of judicial 

economy. Appellant served the motion along with supporting affidavits on 6 March 

2018. Government appellate counsel informed the court on 9 March 2018 the 

government did not oppose the motion. 

LAW AND DISCUSSION 

Appellant was convicted of numerous offenses occurring between on or about 

3 June 2013 and on or about 31 July 2014. The limitation to the convening 

authority’s discretion as to action on the findings and sentence does not apply where 

“at least one offense resulting in a finding of guilty occurred prior to 24 June 2014,” 

in which case the prior version of R.C.M. 1107 applies. See R.C.M. 1107, note. 

Thus, the convening authority had the discretion in taking action on appellant’s case 

to disapprove some or all of appellant’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 materials to address the 

new R.C.M. 1105A matters. We therefore grant relief as directed in our decretal 

paragraph. 

CONCLUSION 

The convening authority’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 different convening authority in accordance 

with Article 60(c)-(e), UCMJ. We also note, the promulgating order dated 4 January 

2018 incorrectly lists “Charge I” as a violation of “Article 120” rather than Article 

120b and should be corrected in a new promulgating order upon issuance of the new 

action. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: