United States v. Sergeant LESTER M. ENCALADE, JR. ( 2014 )

CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant LESTER M. ENCALADE, JR.
United States Army, Appellant
ARMY 20120642
Headquarters, Eighth Army
Thomas M. Kulish, Military Judge
Colonel Jeffrey C. McKitrick, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle; JA, Lieutenant Colonel Peter Kageleiry, Jr.
JA; Major Amy E. Nieman, JA; Captain James S. Trieschmann, Jr., JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sam Gabremariam, JA; Captain Nathan S. Mammen, JA (on brief).
22 July 2014
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SUMMARY DISPOSITION
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TELLITOCCI, Judge:
A general court-martial composed of a panel of officers and enlisted members
convicted appellant, contrary to his pleas, of one specification of violating a lawful
general regulation, one specification of aggravated sexual assault, one specification
of wrongful sexual contact, and one specification of forcible sodomy, in violation of
Articles 92, 120, and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920,
and 925 (2006 & Supp. IV 2011) [hereinafter UCMJ]. The panel sentenced appellant
to a bad-conduct discharge, twenty-one months of confinement, total forfeiture of all
pay and allowances, and reduction to the grade of E-1. *The convening authority
approved only the bad-conduct discharge and twenty months of confinement.
This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief. Those matters raised
*Corrected
ENCALADE – ARMY 20120642
personally by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) are without merit.
Appellant was charged with and convicted of, inter alia, a violation of Army
Regulation 600-20 for a relationship he had with a female soldier in the rank of
Private E2. The specific section which appellant was convicted of violating
prohibits relationships between soldiers of different ranks if they “[c]ompromise, or
appear to compromise, the integrity of supervisory authority or the chain of
command.” Army Reg. 600-20, Army Command Policy, para. 4-14b(1) (18 Mar.
2008) (Update 20 Sept. 2012). This provision does not strictly prohibit relationships
between lower enlisted soldiers and noncommissioned officers unless they actually
compromise, or appear to compromise, supervisory authority or the chain of
command. See United States v. Bourne, ARMY 20120481, 2013 WL 6797602, at *4
(Army Ct. Crim. App. 19 Dec. 2013) (mem. op.).
The record is bereft of evidence of a supervisory or chain of command
relationship between appellant and the junior soldier. Nor does the record contain
evidence of compromise of any other person’s supervisory authority or any relevant
chain of command. As the relationship in question is not a per se regulatory
violation, the absence of any evidence of the aggravating element is fatal to this
particular specification. As the government counsel at trial argued, albeit with a
different perspective in mind, “this is a no brainer.”
We therefore find the conviction of Charge I and its Specification legally and
factually insufficient and will take action in our decretal paragraph.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, appellant was sentenced by members, but because the remaining
offenses are not based on customs of the service, this factor has less weight. Third,
we find the nature of the remaining offenses still captures the gravamen of the
original specifications, and the evidence of the disparity in rank between appellant
and his victim, at the heart of the dismissed offense, was properly admitted for
consideration as aggravation for the remaining offenses. Finally, based on our
experience, we are familiar with the remaining offenses so that we may reliably
determine what sentence would have been imposed at trial.
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ENCALADE – ARMY 20120642
Accordingly, the findings of guilty as to Charge I and its Specification are set
aside and that charge and its specification are dismissed. The remaining findings of
guilty are AFFIRMED. In reassessing the sentence, based on the noted error and the
entire record, we AFFIRM the sentence as approved. We find this reassessed
sentence is not only purged of any error but is also appropriate. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings and sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).
Senior Judge COOK and Judge HAIGHT concur.
FOR THE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH.H.SQUIRES, JR.JR.
SQUIRES,
Clerk
ClerkofofCourt
Court
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