United States v. Specialist NEAL C. PELACCIO ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, MORAN, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist NEAL C. PELACCIO
United States Army, Appellant
ARMY 20130815
Headquarters, Fort Bliss
Timothy P. Hayes, Jr., Military Judge
Colonel Edward K. Lawson IV, Staff Judge Advocate
For Appellant: Major Vincent T. Shuler, JA; Captain Michael A. Millios, JA (on
brief).
For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).
24 June 2014
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SUMMARY DISPOSITION
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Per curiam:
Upon review of the entire record pursuant to Article 66(c), Uniform Code of
Military Justice, we note that appellant was charged with and found guilty of, on
divers occasions, without proper authority, selling military property of the United
States of a value greater than $500. * The government alleged and appellant was
found guilty of selling this military property of the United States “to persons who
responded to his ads . . .” However, the evidence in the record does not establish
that the value of the military property of the United States sold to the persons
responding to appellant’s ads exceeded $500 in any instance. As such, we do not
affirm “a value greater than $500.00” and instead affirm “some value.” Our action
does not change the penalty landscape because appellant was tried at a special court-
martial. Our action also does not change the admissible aggravation evidence
available to the sentencing authority. In addition, appellant was sentenced by a
*
Appellant personally raised this issue pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). His other Grostefon submissions do not warrant relief.
PELACCIO—ARMY 20130815
military judge and, as a matter of logic, we are more likely to be certain of what a
military judge would have done as opposed to members. Lastly, we have the
experience and familiarity with the offense to reliably determine what sentence
would have been imposed at trial. See United States v. Winckelmann, 73 M.J. 11(C.A.A.F. 2013) (establishing a nonexhaustive framework to aid in reassessing
sentences); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
Accordingly, we only affirm so much of the Specification of Charge II as
finds that appellant:
did, at or near Fort Bliss, Texas, between on or about 1
December 2012 and on or about 12 February 2013, on
divers occasions without proper authority, sell to persons
who responded to his ads, M4 magazines of some value,
military property of the United States.
The finding of guilty of Charge II is AFFIRMED. Considering the modified finding,
we find the sentence as approved by the convening authority is appropriate and is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the finding set aside by this decision, are
hereby ordered restored.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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