## UNITED STATES ARMY COUR T 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. Hayde n, Acting Staff Judge Advocate (addendum & supple mental addendum)

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

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

24 November 2014

---------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specificati on of absence without leave for more than 30 days and terminated by apprehension, in vi olation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 [her einafter 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 author ity (CA) approved th e adjudged sentence and granted 19 days of confinement credit.

This case is before us for review pursuant to Ar ticle 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 appe llant’s request for

deferment of automatic forfeitu res, merits discussion and re lief in the form of a newRUIZFERNANDEZ—ARMY 20140358

2 recommendation and action . None of the remaining ma tters personally raised by appellant warrant discussion or relief.

FACTS

As part of the post-trial process, appe llant’s trial defense counsel, Captain M, submitted a timely request fo r deferment and waiver of automatic forfeitures on appellant’s behalf. Th e Acting Staff Judge Advo cate recommended the CA disapprove the re quest for defe rment but approve the requ est 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 St aff Judge Advocate (SJA ), in his post-trial recommendation, noted th at 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 appella nt’s deferment request and also failed to note his earlier approval of the waiver request. The acting SJA, in a supplemental addendum to the reco mmendation, recommended the new CA

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

decision to waive forfeiture s. Nonetheless, no mentio n is made of appellant’s deferment request in this s upplemental addendum. The ne w CA’s subsequent action was apparently created to address the omit ted reference to the approved waiver, but

the record still la cks CA action in regards to appellant’s defe rment request.

DISCUSSION

Rule for Courts-Martial [hereinafter R.C.M.] 1101(c)(3) st ates 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 decisi on of the authority acting on the deferm ent request shall be subject to judicial review only for abuse of di scretion. The ac tion 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 ac tion on appellant’s deferment request. The CA failed to take action alth ough the Acting SJA presented

the CA with a recommendation in response to the defermen t request and an action to effectuate the CA’s decision was presented to the CA. The CA’s failure to act isRUIZFERNANDEZ—ARMY 20140358

3 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 appell ant’s request.

CONCLUSION

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

returned to The J udge Advocate General for a ne w SJA recommendation and a new action by the same or a diffe rent convening authority in accordance with Article 60, UCMJ. This remedy will afford appellant an additional opportunity for the CA to act on his request fo r deferment of auto matic forfeitures.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: