United States v. Ord

UNITED STATES, Appellee

v.

Peter A. ORD, Private First Class
U.S. Army, Appellant

No. 05-0651
Crim. App. No. 20020961

United States Court of Appeals for the Armed Forces

Argued April 18, 2006

Decided July 3, 2006

PER CURIAM

Counsel

For Appellant: Captain Doug J. Choi (argued); Colonel John T.
Phelps II, Lieutenant Colonel Kirsten V.C. Brunson, and Major
Billy B. Ruhling II (on brief); Captain Charles L. Prichard Jr.

For Appellee: Captain Michael Friess (argued); Lieutenant
Colonel Theresa A. Gallagher, Major Natalie A. Kolb, and Captain
Edward E. Wiggers (on brief); Lieutenant Colonel Mary M.
Foreman.

Military Judge: Stephen R. Henley

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ord, No. 05-0651/AR

PER CURIAM:

At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of desertion, larceny (five specifications), and forgery, in

violation of Articles 85, 121, and 123, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 885, 921, 923 (2000). He was

sentenced to a bad-conduct discharge, confinement for twenty-

seven months, and reduction to the grade of E-1.

The staff judge advocate (SJA) provided the convening

authority with a post-trial recommendation under Rule for

Courts-Martial (R.C.M.) 1106. Although Appellant had been

convicted of seven different offenses, the SJA’s recommendation

omitted one of the seven -- the finding concerning forgery. The

SJA recommended reduction of the period of confinement to

eighteen months pursuant to a pretrial agreement, 154 days of

confinement credit, and approval of the balance of the sentence.

The SJA did not make a specific recommendation with respect to

the findings.

The convening authority’s action approved the SJA’s

recommendation on the sentence. The convening authority’s

action did not expressly address the findings. On the same date

as the action, the 1st Armored Division issued an initial

promulgating order that, like SJA’s recommendation, omitted the

finding concerning forgery.

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United States v. Ord, No. 05-0651/AR

The command forwarded the record of trial, including the

initial promulgating order, for appellate review by the United

States Army Court of Criminal Appeals. Subsequently, the

command issued a “corrected” promulgating order that included

the missing finding. According to a stipulation of fact entered

into by the parties, the “corrected” promulgating order was

occasioned by a request by someone in the lower court’s clerk’s

office for a corrected order to reflect the omitted finding.

The Office of the Clerk of the Court of Criminal Appeals

received the corrected promulgating order and filed it in the

record of trial. Neither the parties nor the court, however,

relied on the “corrected” promulgating order, which had been

issued by the command at a time when the case had not been

returned to the command for further action. See R.C.M. 1107(g).

On October 14, 2004, the court set aside the convening

authority’s action and returned the record for a new SJA

recommendation and convening authority’s action. United States

v. Ord, No. ARMY 20020961 (A. Ct. Crim. App. Oct. 14, 2004)

(unpublished). The order returning the case to the command led

to new submissions to the convening authority by the SJA and the

defense, as well as a new convening authority’s action that was

predicated upon a correct recitation in the SJA’s post-trial

recommendation of all seven findings adjudged by the court-

martial, including the forgery offense. On May 31, 2005, the

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United States v. Ord, No. 05-0651/AR

Court of Criminal Appeals affirmed the findings and sentence as

approved in the new convening authority’s action, including the

forgery offense. United States v. Ord, No. ARMY 20020961 (A.

Ct. Crim. App. May 31, 2005).

Upon Appellant’s petition, we granted review of the

following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED BY RETURNING THE CASE FOR A NEW POST-
TRIAL RECOMMENDATION AND ACTION TO ALLOW THE
CONVENING AUTHORITY TO APPROVE A GUILTY
FINDING WHEN THAT FINDING HAD BEEN OMITTED
FROM THE INITIAL POST-TRIAL RECOMMENDATION
AND ACTION.

Under United States v. Diaz, 40 M.J. 335, 345 (C.M.A.

1994), when the convening authority does not act expressly on

the findings, and the SJA’s recommendation omits a finding of

guilty adjudged by the court-martial, the Court of Criminal

Appeals may not presume that the convening authority approved

the omitted finding. In such a case, the court may return the

record for a new SJA recommendation and convening authority

action. See id.; United States v. Alexander, 63 M.J. ___ (18)

(C.A.A.F. 2006). Here, the court followed the procedure

outlined in Diaz. Accordingly, the decision of the United

States Army Court of Criminal Appeals is affirmed.

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