## UNITED STATES ARMY COUR T 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 Access ions Command and Fort Knox (trial) Headquarters, United States Army Cadet Command and Fort K nox (new action) Timothy Grammel, Military Judge Colonel Robert J. Cotell, Staff Judge Advocate (trial and new recommendation) Lieutenant Colonel Christopher B. Burg ess, 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

--------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REVIEW

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

Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of three specific ations of absence withou t leave in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge,
confinement for eleven months , and forfeiture of $978.00 pay per mont h for eleven months. The convening authority (CA) a pproved eight months of confinement, sixty-two days of co nfinement credit, and the remainde r of the adjudg ed sentence. In addition, the CA approved appellant’s request to defer adjudged and automatic forfeitures and, at action, wa ived automatic forf eitures 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 Ru le 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-t rial recommendation (SJAR) and action.
United States v. Pearce , ARMY 20110107, 2012 WL 1899 332 (Army Ct. Crim. App. 16 May 2012) (sum.dis p.). In addition, our opini on noted the CA had waived automatic forfeitures in his action, but, in this same actio n, 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). Be cause the case was bein g sent back for a new
recommendation and acti on, we did not take action to correct this obvious ambiguity. Pearce , 2012 WL 1899332, at *1.

A new SJAR and action has no w been completed. The original assignment of
error has been addressed a nd is no longer an issue. However, in approving appellant’s sentence to a bad-conduct disc harge, confinement fo r eight months, and forfeiture of $978.00 pay pe r 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 th is issue as an assignment of error and asks this court to disapprove the adjudged forfeitu res. The government concedes the issue and also asks this court to disapprove th e adjudged forfeiture s. We will take appropriate action in our decretal paragraph to remedy this issue.

CONCLUSION

On consideration of the entire record, an d the matters personal ly 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 ba d-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. 19 82), were found to be without merit.

2 The CA also credited appe llant 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 waiveris disapproved.” We interpret this sentence to mean the CA has approved the sixmonth waiver of automatic fo rfeitures, effectiv e 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, pr ivileges, and property, of wh ich 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: