UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class BRANDEN G. WHITFIELD
United States Army, Appellant
ARMY 20110578
Headquarters, 3rd Infantry Division and Fort Stewart
Tiernan P. Dolan, Military Judge
Lieutenant Colonel John S. Frost, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Kent Herring, Acting Staff Judge Advocate (recommendation)
Colonel Randall J. Bagwell, Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Robert A. Feldmei er, JA (on brief).
For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain T. Campbell Warner, JA (on brief).
30 September 2013
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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 pleas, of disrespect to a non-commissioned officer, extortion, and
two specifications of assault consummated by battery in violation of Articles 91,
127, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 891, 927, 928 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and confinement for fourteen months. Pursuant to a pretrial agreement,
the convening authority approved only so much of the sentence exte nding to a bad-
conduct discharge and confinement for two hundred seventy days. The convening
authority also credited appellant with 187 days of confinement credit against the
sentence to confinement. This case is now before this court for review under Article
66, UCMJ.
Appellant raises four assignments of error. Two of these alleged errors,
regarding Article 12, UCMJ, confinement credit and an improvident plea to Charge
WHITFIELD—ARMY 20110578
III and its Specification, are without merit. A third, alleging improper modification
of a convening authority action, has merit and warrants relief. Our relief, which sets
aside the convening authority’s action and return s the case for a new staff judge
advocate recommendation and action, makes appellant’s fourth assignment o f error
regarding dilatory post-trial processing premature for this court’s resolution.
DISCUSSION
Appellant’s trial concluded on 11 July 2011. On 25 July 2011 and effective
that date, the convening authority approved a two month waiver of the automatic
forfeiture of all pay and allowances required by Article 58b, UCMJ. Because of the
significant amount of confinement credit awarded appellant, he was released from
confinement on 1 September 2011 after serving fifty-three days. On 26 October
2011, appellant’s defense counsel submitted post-trial matters pursuant to Rules for
Court-Martial [hereinafter R.C.M.] 1105 and 1106, requesting that the convening
authority disapprove the adjudged bad-conduct discharge or, in the alternative,
waive an additional four months of forfeitures. However, this latter requested relief
was meaningless because appellant was already out of confinement, and, therefore,
there were no automatic forfeitures subject to waiver . R.C.M. 1101.
On 26 September 2011, the staff judge advocate recommended that the
convening authority approve the extended waiver of automatic forfeitures .
Consistent with the staff judge advocate’s recommendation, on 22 November 2011,
the convening authority approved an extended waiver of automatic forfeitures from
two to six months – an action which, as previously noted, had no meaningful effect
because appellant had already been released from confinement. Afterwards, in an
apparent attempt to eliminate the meaningless and potentia lly confusing waiver
extension, the convening authority signed a modified action on 9 January 2012
ordering that automatic forfeitures be waived for only two months. This modified
action was then published in a new promulgating order.
Appellant now alleges that the convening authority violated R.C.M.
1107(f)(2) by modifying an already-published action with an action less favorable to
appellant. Appellant argues this second action is impermissible and the modified
action must be set aside for a new staff judge advocate recommendation and
convening authority action. The government counters that because appellant did not
serve confinement for more than two months, any action waiving automatic
forfeitures for more than two months was a legal nullity and therefore in appellant’s
case, modifying a six month waiver to two months was not less favorable. However,
the government also concedes that the convening authority’s action extending the
R.C.M. 1101(d) discussion: “Forfeitures resulting by operation of law, rather than
those adjudged as part of a sentence, may be waived for six months or for the
duration of the period of confinement, whichever is less.”
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WHITFIELD—ARMY 20110578
waiver of forfeitures to six months shows that he intended to grant some form of
clemency, and therefore, a new staff judge advocate recommendation and action are
appropriate.
Without presuming the intent of the convening authority or deciding whether
or not the convening authority’s modified action was actually less favorable to
appellant, we nonetheless grant the request of both the defense and government to
remand this case for a new staff judge advocate recommendation and action. We do
so because it has been requested by both parties and it is apparent under the facts in
this case, that both the defense counsel ’s relief request in his R.C.M. 1105
submission and the staff judge advocate’s addendum led to an uninformed and
ambiguous recommendation to the convening authority for his clemency
consideration.
DECISION
The convening authority’s action, dated 9 January 2012, is set aside, except
for that portion of the action withdrawing the convening authority’s initial action
dated 22 November 2011. The record of trial is returned to The Judge Advocate
General for a new staff judge advocate recommendation and a new action by the
same or different convening authority in accordance with Article 60(c) -(e), UCMJ.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRE S, JR.
Clerk
Clerk of
of Court
Court
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