UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ISRAEL GARCIA
United States Army, Appellant
ARMY 20130884
Headquarters, U.S. Army Maneuver Center of Excellence
Jeffery R. Nance, Military Judge
Colonel Robert F. Resnick, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Captain Robert H. Meek, III, JA.
For Appellee: Lieutenant Colonel James L. Varley, JA.
19 May 2014
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of attempting to violate a lawful general
regulation and one specification of violating a lawful general regulation, in violation
of Articles 80 and 92 of the Uniform Code of Military Justice, 10 U.S.C. §§ 880 and
892 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge and confinement for six months. The convening authority
approved “only so much of the sentence as provides for reduction to the grade of
Private (E-1), confinement for 5 months, and a Bad-Conduct Discharge . . . .”
(emphasis added). The convening authority also waived the automatic forfeitures of
pay required by Article 58b, UCMJ, for a period of six months, directing the funds
to be paid to appellant’s spouse.
Pursuant to a pretrial agreement, the convening authority agreed to disapprove any
confinement in excess of five months.
GARCIA—ARMY 20130884
This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and personally raised issues pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issues raised
by appellant to be without merit.
Though not raised by appellant or counsel either in the post-trial clemency
submission or in an assignment of error to this court, we find the convening
authority erroneously approved a sentence that was more harsh than the sentence
adjudged at appellant’s court-martial. We find this issue warrants discussion and
relief.
LAW AND DISCUSSION
Upon the conclusion of appellant’s court-martial, pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 1101, a document was generated to report the
result of appellant’s court-martial. This result of trial annotated the sentence
adjudged by the military judge was “[t]o be reduced to the grade of Private (E-1);
to be confined for 6 months; and to be discharged from the service with a BCD.”
(emphasis added). However, the military judge did not sentence appellant to a
reduction in grade.
This mistaken augmentation of the adjudged sentence was repeated in the
staff judge advocate’s recommendation (SJAR) to the convening authority, in the
addendum to the SJAR, as well as in the clemency matters submitted by appellant to
the convening authority pursuant to R.C.M. 1105.
Convening authorities use SJARs and addenda in deciding what action to take
on the findings and sentence of a court-martial. See R.C.M. 1106(d); R.C.M.
1107(b). It has been stated on numerous occasions that it is “imperative that the
convening authority be provided accurate and complete information in the post-trial
recommendation [and] addenda thereto . . . .” United States v. Godfrey, 36 M.J.
629, 630 (A.C.M.R. 1992); see also United States v. Wellington, 58 M.J. 420, 427
(C.A.A.F. 2003). Because of the incorrect SJAR and addendum to the SJAR, the
convening authority incorrectly approved a sentence greater than that which was
adjudged. As such, we will correct this error in our decretal paragraph.
CONCLUSION
The findings of guilty are AFFIRMED.
The part of the convening authority’s action which approves the sentence to
reduction to the grade of Private (E-1) is void ab initio. Only so much of the
sentence as provides for a bad-conduct discharge and confinement for five months
is AFFIRMED. All rights, privileges, and property, of which appellant has been
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GARCIA—ARMY 20130884
deprived by virtue of that portion of the sentence set aside by our decision, are
ordered restored. See UCMJ arts. 58b(c) and 75(a).
Senior Judge COOK and Judge HAIGHT concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM
MALCOLM H.H.
SQUIRES, JR.JR.
SQUIRES,
Clerk of of
Clerk Court
Court
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