United States v. Private E1 JASON N. PHILLIPS ( 2011 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, SIMS, and GALLAGHER
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 JASON N. PHILLIPS
United States Army, Appellant
ARMY 20100484
Headquarters, Fort Drum
Andrew Glass, Military Judge
Colonel Michael O. Lacey, Staff Judge Advocate
For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain
Stephen J. Reuter, JA.
For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.
15 March 2011
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted
appellant, pursuant to his pleas, of one specification of absence without
official leave and one specification of missing movement, in violation of
Articles 86 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and
887 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for eight months, and forfeiture of $964 per
month for eight months. Pursuant to a pretrial agreement, the convening
authority approved only so much of the sentence as provided for 120 days of
confinement and otherwise approved the adjudged sentence.
Appellant was charged with and pled guilty to, inter alia, “on or
about 9 December 2008, without authority, absent[ing] himself from his
unit, to wit: [642d] Engineer Support Company, 7th Engineer Battalion,
10th Sustainment Brigade, located at Fort Drum . . . .” in violation of
Article 86, UCMJ. The military judge conducted a legally sufficient
inquiry under United States v. Care, 18 U.C.M.A. 535, 40 C.M.R. 247 (1969)
and ascertained that appellant’s unit was located at Fort Drum, New York,
although appellant was physically located in Huguenot, New York at the time
he decided not to return to his unit. The military judge found appellant
“Guilty, except for the words, ‘at or near Fort Drum, New York,’
substituting therefore [sic] the words ‘at or near Fort Drum, New York and
Huguenot, New York.’ Of the substituted words, Guilty.” In this case, the
language, “and Huguenot, New York” was added by the military judge and was
not contained in the specification, appellant did not plead to it, and the
charge was not so amended. The additional language was surplusage and
erroneous and had no effect on the providence of appellant’s plea, the
validity of the finding, or the sentence adjudged.
CONCLUSION
The court affirms only so much of the findings of guilty of The
Specification of Charge I as finds that appellant did on or about 9
December 2008, without authority, absent himself from his unit, to wit:
642d Engineer Support Company, 7th Engineer Battalion, 10th Sustainment
Brigade, located at Fort Drum, New York, and did remain so absent until on
or about 1 April 2010. The remaining finding of guilty and the sentence
are affirmed.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court