## 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 20 1 104 00

Seventh U.S. Army Joint Multinational Training Command Jeffery Nance and Wendy P. Daknis , Military Judge s 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 201 3

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

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

Per Curiam:

A panel composed of officer s and enlisted members sitting as a general court

martial convicted appellant, contrary to his pleas, of one speci fication 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

Article s 90, 120a, and 134, Uniform Code of Military Justice, 1 0 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 tw enty

eight 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 20 110400

2

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

raise d one issue to this court and appellant personally rais ed matters pursuant to
United States v. Grost efon, 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. Fosle r , 70 M.J. 225 (C.A.A.F. 2011), but the convening authority’s

acti on did not reflect th at 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 addend um 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 twenty

four months of confinement but approve the remainder of the adjudged sentence. Finally, the SJA advised the convening authority that if the recommendations were

app roved, 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 Bad

Con duct 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 erroneousDRUMMOND

– ARMY 20 110400

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

intende d 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 re commended by the SJA for the legal error. Additionally,

“ i n 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 prej udice appellant and will ad equately 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 specification s 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 U nited States v. Sale s, 22 M.J. 305 (C.M.A. 1986) and U nited States v. Moff eit

, 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 finding s 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: