## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s RANDALL A. WIECK United States Army, Appellant

ARMY 20110707

Headquarters, I Corps (Rear) (Provisional) David L. Conn, Military Judge
Colonel Kurt A. Didier , Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Sasha N. Rutizer, JA (on brief).

27 February 2013

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

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

Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of two specifications of ab sence without 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 five months , forfeiture of $978 .00 pay per month for five months, and reduction to the grade of E-1. The convening authorit y approved a sentence to a bad-conduct discharge, confinement for four months, forfeiture of $978.00 pay per month for five months, and re duction to the grade of E-1. Appellant was credited with eighty-six days of confinement against his sentence to confinement.

Appellant’s sole assignmen t of error for our review under Article 66, UCMJ,
is that he was denied the opportunity to request that the conv ening authority defer
his reduction in rank and his adjudged and automatic forfeitures.

On a standard post-trial and appella te rights adviseme nt form, appellant indicated that he wanted to request defe rral of his reducti on in rank, adjudgedWIECK—ARMY 20110707

2 forfeitures, and automatic forfeitures. Ho wever, contrary to appellant’s expressed desires, the record fails to reveal that any such deferment requests were ever presented to the conv ening authority. As a result, appellant claims that he was prejudiced and requests that this cour t order a new review and action. The government concedes the propriety of a ne w review and action. In light of the government’s concession, we will gr ant appellant’s requested relief. See United States v. Fordyce , 69 M.J. 501 (Army Ct. Cr im. App. 2010) (en banc).

While not raised, we also note that Appellate Exhibit V, whic h should consist of “a copy of the Secretar y of the Army’s designation action [designa ting I Corps (Rear) (Provisional) as a GCMCA], as well as the assump tion of command by General Miles, the co nvening authority,” is missing from the record. Considering the relief granted herein, the government w ill be afforded the op portunity to address
the omitted exhibit.

The convening author ity’s initial action, dated 16 Fe bruary 2012, is set aside.
The record of trial is retu rned to The Judge Advocate General fo r a new staff judge
advocate recommendation and a new action by the same or di fferent convening authority in accordance with Article 60(c)– (e), UCMJ. In add ition, appellant will
receive assistance from a new defense counsel.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: