UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 LIBAN H. ABDIRAHMAN
United States Army, Appellant
ARMY 20150216
Headquarters, Seventh Army Joint Multinational Training Command
Joshua S. Shuey, Military Judge
Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate (pretrial and
recommendation)
Lieutenant Colonel Eugene Y. Kim, Staff Judge Advocate (addendum)
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew D. Bernstein, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Tara E. O’Brien, JA (on brief).
2 August 2016
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SUMMARY DISPOSITION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WOLFE, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of being absent without leave, striking a noncommissioned
officer, being disrespectful to a noncommissioned officer (two specifications),
violating a lawful general regulation by using Spice, assault consummated by
battery (two specifications), simple assault, and disorderly conduct, in violation of
Articles 86, 91, 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
886, 891, 892, 928, 934 (2012) [hereinafter UCMJ]. The military judge sentenced
appellant to be discharged with a bad-conduct discharge and to be confined for
four months.
The convening authority approved the adjudged sentence. In addition to
approving the sentence, however, the convening authority awarded appellant ninety
ABDIRAHMAN—ARMY 20150216
days of confinement credit. It is the convening authority’s award of sentencing
credit that requires both discussion and relief in this case.
This case was referred to us for review pursuant to Article 66(b), UCMJ.
Appellant raises one assignment of error. Because we find a new staff judge
advocate recommendation (SJAR) and a new action are required under the
assignment of error, we do not address, at this time, the matters raised personally by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
BACKGROUND
On 1 April 2013, appellant assaulted a German woman by punching her face
and assaulted a German man by head-butting him. For this misconduct, appellant
was issued non-judicial punishment. See UCMJ, art. 15. The battalion commander
initially suspended some of the punishment, but vacated the suspension when
appellant conducted additional misconduct. Specifically, appellant assaulted his
roommate and another soldier after finding them having sexual intercourse in his
room. Appellant assaulted them by throwing a beer bottle at them and hitting them
with a Swiffer mop. For this, appellant was again punished under Article 15, UCMJ.
Upon committing additional misconduct, appellant was court-martialed. The
charges referred to court-martial included offenses for which appellant had already
been punished under Article 15. At the court-martial, the military judge had an
extensive discussion regarding Pierce credit. United States v. Pierce, 27 M.J. 367
(C.M.A. 1989). In announcing the sentence, the military judge explained:
When arriving at the adjudged sentence in this case, I took
into account the non-judicial punishment, or NJP, the
accused has already received under Article 15 of the
UCMJ. As a result of the NJP that was imposed by this
battalion commander for the assaults that he was charged
with and found guilty of in Specifications 1 and 2 of
Charge V, as well as vacated due to the conduct which
formed the basis for Specification 3 of Charge V, he
should receive credit. If the accused had not received
prior NJP for these offenses, I would have adjudged an
additional three months of confinement in addition to what
I just announced.
In other words, in determining the adjudged sentence, the military judge
accounted for Pierce by reducing the adjudged sentence. The military judge did not
order any other sentence credit.
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ABDIRAHMAN—ARMY 20150216
However, the SJAR states that appellant received a four month sentence and
that the military judge had awarded sentencing credit, stating: “Sentence Credit: 90
days of other judge ordered credit, for a total presentence credit toward post-trial
confinement of 90 days.” Thus the SJA erroneously advised the convening authority
that the military judge had awarded sentencing credit.
In his matters submitted under Rule for Courts-Martial [R.C.M.] 1105
appellant did not raise any error. *
Nor was the error corrected in the addendum to the SJAR, which stated:
I recommend that you disapprove the Soldier’s request for
discharge in lieu of trial by court-martial, approve the
findings, the sentence and, except for the part of the
sentence extending to a bad-conduct discharge, order it
executed. The Soldier will be credited with 90 days of
confinement against the sentence of confinement.
The convening authority’s action approved the sentence and stated, “the
accused will be credited with 90 days of confinement against the sentence to
confinement.”
By the time of the convening authority’s action, appellant had been released
from confinement having served the adjudged sentence of confinement. Because he
served the entire adjudged sentence, appellant now alleges he served ninety days of
confinement that were not authorized. The convening authority’s action is silent as
to whether the ninety days of confinement credit given by the convening authority
was intended as an act of clemency or was given for some other reason.
LAW AND DISCUSSION
Article 60(c)(2), UCMJ allows the convening authority to “approve,
disapprove, commute, or suspend the sentence in whole in or part.” In this case, the
convening authority “approved” the adjudged sentence. The sentence was not
commuted, suspended, or disapproved. The approval of the sentence would appear
to foreclose any clemency action by the convening authority on the sentence. See
R.C.M. 1107(f)(4) (A)(“The action shall state whether the sentence adjudged by the
convening authority is approved. If only part of the sentence is approved, the action
shall state which parts are approved.”).
*
By failing to object to the SJAR, appellant forfeited the error. R.C.M. 1106(f)(7).
In an exercise of our discretionary authority under Article 66(c), we notice the error
notwithstanding that it does not amount to plain error.
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ABDIRAHMAN—ARMY 20150216
However, in addition to approving the sentence, the convening authority also
directed the appellant be given ninety days of confinement credit that was not
directed by the military judge or otherwise raised by the record of trial. While
R.C.M. 1107(f)(4)(F) requires the convening authority to credit an accused’s
sentence whenever the military judge orders credit for illegal pretrial confinement,
that was not the case here. Therefore, as the sentence credit was not required by
law, it would appear to be that the credit may have been intended as a clemency
action. If so, the convening authority would appear to have both approved the
sentence as adjudged, but also directed clemency.
Accordingly, we find the convening authority’s action ambiguous. While the
government–and to a lesser extent, the defense–appear to assume that the convening
authority’s action was premised on the SJA’s faulty advice, we cannot be sure.
Here, the convening authority appears to have both approved the sentence, and
appears to have directed that the sentence not actually be served. That the sentence
had already been served at the time of action makes the convening authority’s action
all the less clear. If the convening authority’s intent was to disapprove or commute
some portion of the sentence–as authorized under Article 60–our only means of
ensuring appellant’s opportunity for that relief is to return the case to the convening
authority.
When the action of a convening authority is incomplete, ambiguous, or
contains clerical error, this court may instruct the convening authority who took the
action to withdraw the original action and substitute a corrected action, R.C.M.
1107(g), and the convening authority shall modify the action accordingly. R.C.M.
1107(f)(2). United States v. Mendoza, 67 M.J. 53, 54 (C.A.A.F. 2008).
We find that the convening authority’s action is ambiguous as to whether the
convening authority intended to approve the sentence as adjudged, or intended to
grant clemency. Accordingly, we return the case for a new action to resolve the
ambiguity. As the staff judge advocate’s initial recommendation erroneously
advised the convening authority that appellant was entitled to “judge ordered”
credit, we will also direct a new SJAR, thereby ensuring appellant has the complete
opportunity to submit R.C.M. 1105 matters anew.
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CONCLUSION
The convening authority’s action, dated 13 August 2015, is set aside. The
record of trial is returned to The Judge Advocate General for a new SJAR and action
by the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.
Senior Judge CAMPANELLA and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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