UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, TELLITOCCI, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class ESGAR RUIZFERNANDEZ 

United States Army, Appellant 

ARMY 20140358 

Headquarters, Fort Stewart 

John T. Rothwell, Military Judge 

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

Lieutenant Colonel Peter R. Hayden, Acting Staff Judge Advocate 

(addendum & supplemental addendum) 

For Appellant: Major Amy E. Nieman, JA; Captain Payum Doroodian, JA (on brief). 

For Appellee: Major Daniel D. Derner, JA (on brief). 

24 November 2014 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to his plea, of one specification of absence without leave for more than 30 

days and terminated by apprehension, in violation of Article 86, Uniform Code of 

Military Justice, 10 U.S.C. § 886 [hereinafter UCMJ]. The military judge sentenced 

appellant to a bad-conduct discharge, to be confined for 60 days, and to be reduced 

to the grade of E-1. The convening authority (CA) approved the adjudged sentence 

and granted 19 days of confinement credit. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

submitted a merits pleading to this court, and personally raised matters pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the issues appellant 

personally raised, the CA’s failure to take action on appellant’s request for 

deferment of automatic forfeitures, merits discussion and relief in the form of a new 
RUIZFERNANDEZ—ARMY 20140358 

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recommendation and action. None of the remaining matters personally raised by 

appellant warrant discussion or relief. 

FACTS 

 As part of the post-trial process, appellant’s trial defense counsel, Captain M, 

submitted a timely request for deferment and waiver of automatic forfeitures on 

appellant’s behalf. The Acting Staff Judge Advocate recommended the CA 

disapprove the request for deferment but approve the request for waiver. The CA 

approved the waiver request for a one-month period, but failed to take action in 

regards to the deferment request. The Staff Judge Advocate (SJA), in his post-trial 

recommendation, noted that the CA had approved a one-month waiver of forfeitures, 

but had “not take[n] action on [appellant’s] request for deferment of automatic 

forfeitures.” 

 The acting SJA, in his addendum to the recommendation, failed to identify 

this issue. In his initial action, the CA failed to act on appellant’s deferment request 

and also failed to note his earlier approval of the waiver request. The acting SJA, in 

a supplemental addendum to the recommendation, recommended the new CA 

withdraw the “initial Action” and substitute an action that noted the prior CA’s 

decision to waive forfeitures. Nonetheless, no mention is made of appellant’s 

deferment request in this supplemental addendum. The new CA’s subsequent action 

was apparently created to address the omitted reference to the approved waiver, but 

the record still lacks CA action in regards to appellant’s deferment request. 

 

DISCUSSION 

 Rule for Courts-Martial [hereinafter R.C.M.] 1101(c)(3) states in pertinent 

part: 

Action on deferment request. The authority acting on a 

deferment request may, in that authority’s discretion, 

defer service of a sentence to confinement, forfeitures, 

or reduction in grade. . . . . The decision of the authority 

acting on the deferment request shall be subject to judicial 

review only for abuse of discretion. The action of the 

authority acting on the deferment request shall be in 

writing and a copy shall be provided to the accused. 

 

 In this case, the CA inexplicably failed to take action on appellant’s 

deferment request. The CA failed to take action although the Acting SJA presented 

the CA with a recommendation in response to the deferment request and an action to 

effectuate the CA’s decision was presented to the CA. The CA’s failure to act is 
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captured not only on the incomplete deferment action, but also on the SJA 

recommendation. 

 

 Pursuant to R.C.M. 1101(c)(3), while the decision to grant or deny appellant’s 

deferment request is clearly within the discretion of the CA, we find the CA abused 

his discretion by declining to take action on appellant’s request. 

CONCLUSION

The CA’s action, dated 9 September 2014, is set aside. The record of trial is 

returned to The Judge Advocate General for a new SJA recommendation and a new 

action by the same or a different convening authority in accordance with Article 60, 

UCMJ. This remedy will afford appellant an additional opportunity for the CA to 

act on his request for deferment of automatic forfeitures. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: