UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 KEVIN M. PEARCE 

United States Army, Appellant 

ARMY 20110107 

Headquarters, United States Army Accessions Command and Fort Knox (trial) 

Headquarters, United States Army Cadet Command and Fort Knox (new action) 

Timothy Grammel, Military Judge 

Colonel Robert J. Cotell, Staff Judge Advocate (trial and new recommendation) 

Lieutenant Colonel Christopher B. Burgess, Acting Staff Judge Advocate (new 

addendum) 

For Appellant: Major Richard E. Gorini, JA; Captain Robert N. Michaels, JA (on 

brief). 

 

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on 

brief). 

15 March 2013 

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SUMMARY DISPOSITION ON FURTHER REVIEW 

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Per Curiam: 

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

pursuant to his pleas, of three specifications of absence without leave in violation of 

Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for eleven months, and forfeiture of $978.00 pay per month for eleven 

months. The convening authority (CA) approved eight months of confinement, 

sixty-two days of confinement credit, and the remainder of the adjudged sentence. 

In addition, the CA approved appellant’s request to defer adjudged and automatic 

forfeitures and, at action, waived automatic forfeitures for a period of six months, 

directing those funds be paid to appellant’s spouse. This case was then sent to this 

court for review pursuant to Article 66, UCMJ. 
PEARCE—ARMY 20110107 

2 

On 16 May 2012, we issued an opinion agreeing with appellant’s sole 

assignment of error.1 We found a document included in appellant’s Rule for CourtsMartial [hereinafter R.C.M.] 1105 submission was not submitted to the CA prior to 

his taking action in appellant’s case as required by R.C.M. 1107(b)(3)(iii) and 

United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). Accordingly, we 

returned the case to the CA for a new post-trial recommendation (SJAR) and action. 

United States v. Pearce, ARMY 20110107, 2012 WL 1899332 (Army Ct. Crim. App. 

16 May 2012) (sum.disp.). In addition, our opinion noted the CA had waived 

automatic forfeitures in his action, but, in this same action, approved adjudged 

forfeitures. We further noted the effect of these contrary actions was to prevent 

appellant’s spouse from receiving funds. See United States v. Emminizer, 56 M.J. 

441 (C.A.A.F. 2002). Because the case was being sent back for a new 

recommendation and action, we did not take action to correct this obvious 

ambiguity. Pearce, 2012 WL 1899332, at *1. 

A new SJAR and action has now been completed. The original assignment of 

error has been addressed and is no longer an issue. However, in approving 

appellant’s sentence to a bad-conduct discharge, confinement for eight months, and 

forfeiture of $978.00 pay per month for eleven months,2 the convening authority still 

has not corrected the issue involving appellant’s adjudged and automatic 

forfeitures.3 Appellant now raises this issue as an assignment of error and asks this 

court to disapprove the adjudged forfeitures. The government concedes the issue 

and also asks this court to disapprove the adjudged forfeitures. We will take 

appropriate action in our decretal paragraph to remedy this issue. 

CONCLUSION 

On consideration of the entire record, and the matters personally raised by the 

appellant pursuant to Grostefon, we hold the findings of guilty correct in law and 

fact and are AFFIRMED. In the interests of judicial economy, we affirm only so 

much of the sentence that includes a bad-conduct discharge and confinement for 

                                                           

1

 Those matters personally raised by appellant, pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982), were found to be without merit. 

2

 The CA also credited appellant with sixty-two days of confinement against the 

sentence to confinement. 

3

 In the new action, the CA states “[t]he automatic forfeiture of two-thirds pay 

required by Article 58b, UCMJ, was waived on 16 June 2011. Any additional waiver 

is disapproved.” We interpret this sentence to mean the CA has approved the sixmonth waiver of automatic forfeitures, effective on 16 June 2011, as previously 

granted by the prior CA. We, therefore, are still faced with the scenario wherein the 

CA has attempted to waive automatic forfeitures, but negates this attempt by 

approving adjudged forfeitures. 
PEARCE—ARMY 20110107 

3 

eight months. All rights, privileges, and property, of which appellant was deprived 

by virtue of that portion of his sentence being set aside by this decision, are hereby 

ordered restored. See UCMJ arts. 58(b) and 75(a).

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                          

Clerk of Court

FOR THE COURT: