UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist GARETH A. DRUMMOND

United States Army, Appellant

ARMY 20110400

Seventh U.S. Army Joint Multinational Training Command

Jeffery Nance and Wendy P. Daknis, Military Judges

Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate (pretrial)

Lieutenant Colonel David E. Mendelson, Staff Judge Advocate (post-trial)

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA: Major Richard E. Gorini, JA; Captain James S. Trieschmann, JA (on 

brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain T. Campbell Warner, JA (on brief).

22 July 2013

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SUMMARY DISPOSITION

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Per Curiam: 

A panel composed of officers and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification of disobeying 

a superior commissioned officer, one specification of stalking, one specification of 

communicating a threat, and two specifications of indecent language, in violation of 

Articles 90, 120a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 

920a, 934 (2006) [hereinafter UCMJ]. Pursuant to his plea, the military judge 

convicted appellant of assault in violation of Article 128, UCMJ, 10 U.S.C. § 928. 

The panel sentenced appellant to a bad-conduct discharge, confinement for twentyeight months, forfeiture of all pay and allowances, and reduction to the grade of E-1. 

The convening authority approved only so much of the sentence as provided for a 

bad-conduct discharge, confinement for twenty-four months, forfeiture of all pay and 

allowances, and reduction to the grade of E-1.
DRUMMOND – ARMY 20110400

2

This case is before us for review under Article 66, UCMJ. Appellate counsel 

raised one issue to this court and appellant personally raised matters pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issue raised by 

appellate counsel merits discussion and relief. The matters personally raised by 

appellant are without merit. 

Appellant asks this court to dismiss Specifications 3, 4, and 5 of Charge V

because “[t]here is clear evidence that the convening authority accepted the SJA’s 

advice” to dismiss the specifications because they failed to state an offense under 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), but the convening authority’s 

action did not reflect that dismissal. The government agrees and also requests this 

court dismiss the relevant specifications. 

On 9 November 2011, appellant submitted matters to the convening authority 

pursuant to Rules for Courts-Martial [hereinafter R.C.M] 1105 and 1106. As part of 

his request for clemency, appellant, through counsel, requested the convening 

authority dismiss Specifications 3, 4, and 5 of Charge V because the specifications 

failed to state an offense under Fosler. In the second addendum to his post-trial 

recommendation, the staff judge advocate (SJA) advised the convening authority the 

Article 134, UCMJ, specifications failed to include the terminal elements of the 

offense and recommended they be dismissed for failing to state an offen se. He also 

recommended the convening authority “reassess the sentence using the principles of 

United States v. Reed, 33 M.J. 98, 99-100 (C.M.A. 1991), United States v. Sales, 22 

M.J. 305, and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006).” In light of the 

reassessment, the SJA recommended the convening authority approve only twentyfour months of confinement but approve the remainder of the adjudged sentence. 

Finally, the SJA advised the convening authority that if the recommendations were 

approved, the action would read:

In the case of Specialist Gareth A. Drummond . . . only so 

much of the sentence extending to reduction to the grade 

of Private (E-1), forfeiture of all pay and allowances, 

confinement for twenty-four (24) months and a BadConduct Discharge is approved . . . . 

The recommended action did not disapprove any findings of guilty. The 

convening authority subsequently signed a memorandum stating “. . . the 

recommendation of the staff judge advocate is approved.” However, the conv ening 

authority’s action only reflected the language set forth in the SJA’s addendum and 

did not specifically address the dismissal of Specifications 3, 4, and 5 of Charge V. 

Here, the action failed to effectuate the convening authority’s clear intent. 

See United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988) (ordinarily an erroneous 
DRUMMOND – ARMY 20110400

3

action requires remand to the convening authority for a new action). However, it is 

clear the convening authority agreed with the recommendation of the SJA and 

intended to dismiss the Article 134, UCMJ, offenses. Most notably, the convening 

authority signed a memorandum wherein he agreed with the recommendation of the 

SJA and he subsequently reduced appellant’s sentence to confinement by four 

months–the exact number recommended by the SJA for the legal error. Additionally, 

“in the absence of contrary evidence, a convening authority who does not expressly 

address findings in the action impliedly acts in reliance on the statutorily required 

recommendation of the SJA and thus effectively purports to approve implicitly the 

findings as reported to the convening authority by the SJA.” United States v. Diaz, 

40 M.J. 334, 337 (C.M.A. 1994). Accordingly, we find dismissing “the problematic 

findings . . . cannot in any way prejudice appellant and will adequately vindicate the 

interests of military justice in these proceedings” Diaz, 40 M.J. at 345. 

CONCLUSION

Upon consideration of the entire record, submissions by the parties, and those 

matters personally raised by appellant pursuant to Grostefon, the findings of guilty 

of Specifications 3, 4, and 5 of Charge V and Charge V are set aside and those 

specifications and Charge V are dismissed. The remaining findings of guilty are 

AFFIRMED.

Reassessing the sentence on the basis of the error noted, the entire record, and 

in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.

1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F.2006), to include the factors 

identified by Judge Baker in his concurring opinion, the court affirms the sentence. 

All rights, privileges, and property, of which appellant has been deprived by virtue 

of that portion of the findings and sentence set aside by this decision, are ordered 

restored. See Articles 58b(c) & 75(a), UCMJ. 

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: