United States v. Private First Class SAMIR ZUBAIR ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class SAMIR ZUBAIR
United States Army, Appellant
ARMY 20110433
Headquarters, 82d Airborne Division
Patrick Parrish, Military Judge (motions hearing)
Karin Tackaberry, Military Judge (arraignment and trial)
Colonel Lorianne Campanella, Staff Judge Advocate
For Appellant: Major Richard Gorini, JA; Captain Susrut A. Carpenter, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad Fisher, JA;
Captain Kenneth Borgnino, JA (on brief).
31 December 2013
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
LIND, Judge:
A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of two specifications of attempted distribution of hashish; one
specification of making a false official statement; one specification of distribution of
hashish on divers occasions; and one specification of use of hashish on divers
occasions, in violation of Articles 80, 107, and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 880, 907, 912a (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge, confinement for three years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
This case is before the court for review under Article 66, UCMJ. Appellant
alleges, and the government concedes, that: the military judge abused his discretion
by denying the defense’s motion to suppress appellant’s confession , and
ZUBAIR—ARMY 20110433
consequently, the false official statement findings of guilty should be set aside ; that
the evidence was factually and legally insufficient to support the findings of guilty
of the two specifications of attempted distribution of hashish; that the staff judge
advocate failed to comment on legal errors raised in appellant’s post -trial matters;
and that the excessive post-trial delay in this case warrants relief under United
States v. Collazo, 53 M.J. 721 (Army Ct. Crim. App. 2000). We accept the
government’s concessions and will grant relief in our decretal paragraph. We have
also considered those matters personally raised by appellant pursuant t o United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find that they lack merit.
FACTS
In early April 2010, appellant’s first sergeant (1SG), 1SG MH, reassigned
appellant from Camp Stone, Afghanistan to Combat Outpost (COP) Ricketts,
Afghanistan. Prior to appellant’s arrival at COP Ricketts, a number of soldiers
bought hashish from local nationals in the Afghan National Army and Afghan
National Police (ANA/ANP). The soldiers at COP Ricketts used and distributed the
hashish among themselves. Appellant spoke Dari and Pashto and performed duties
as an interpreter. While assigned to COP Ricketts, appellant bought hashish from
ANA/ANP local nationals, and on divers occasions, appellant both used the hashish
with other soldiers and distributed the hashish to other soldiers. Appellant’s unit at
Camp Ricketts suspected appellant of drug offenses, and on or about 21 June 2010
transferred appellant back to Camp Stone.
LAW AND DISCUSSION
I. Military Judge’s Denial of Motion to Suppress Appellant’s Statement
A. Background
Upon appellant’s arrival at Camp Stone from COP Ricketts on or about
21 June 2010, appellant was summoned to 1SG MH’s office. Several other non-
commissioned officers were present. First sergeant MH asked appellant, “what’s
going on?” When appellant did not respond, 1SG MH left the room, called
appellant’s first sergeant from COP Ricketts, and learned that appellant was returned
to Camp Stone because he had been identified at COP Ricketts as having used
hashish. First Sergeant MH became “angry” and “upset,” returned to his office, and
without advising appellant of his Article 31(b), UCMJ, rights, asked appellant:
“Why would you do something like this?” or words to that effect. First sergeant MH
spoke to appellant for approximately fifteen to twenty minutes, telling appellant,
among other things, that he was “personally upset [appellant] had done this.”
Appellant “began to show obvious signs of stress,” including “tearing up a little bit.”
At that point, 1SG MH and another non-commissioned officer both asked appellant:
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“what’s going on?” Appellant eventually stated “there was drug use going on” and
that appellant had “smoked hashish.”
First sergeant MH stopped questioning appellant and went to the unit’s legal
advisor for advice as to how to proceed. They decided to have Captain (CPT) JF
advise appellant of his Article 31(b), UCMJ, rights and take a sworn statemen t from
appellant. Appellant was escorted by a non -commissioned officer to this meeeting
with CPT JF. Captain JF advised appellant of his Article 31(b), UCMJ, rights, but
did not administer a cleansing statement. Appellant waived his Article 31(b),
UCMJ, rights and denied involvement in any use or distribution of hashish at COP
Ricketts. This meeting lasted approximately ten to fifteen minutes.
After 1SG MH learned appellant had denied any wrongdoing in his statement
to CPT JF, appellant was escorted back to 1SG MH’s office. First Sergeant MH was
“angry,” “upset,” and “disappointed” because appellant was “lying to somebody.”
Once again, in the presence of other non -commissioned officers, and without reading
appellant his Article 31(b), UCMJ, rights, 1SG MH asked appellant: “why are you
doing this?” and “why are you lying?” First sergeant MH informed appellant that
the soldiers at COP Ricketts who are using hashish are also “guarding the firebase,”
and that if appellant did not tell the truth, “somebo dy is going to get killed.” First
sergeant MH then told appellant, “you need to go in [t]here and you need to tell the
truth.” Appellant began crying and shaking his head, stating, “no, no, no.” First
sergeant MH repeatedly urged appellant “to tell the truth.” The meeting with 1SG
MH concluded when 1SG MH ordered appellant to “go back to [CPT JF].” This
second meeting with 1SG MH lasted approximately thirty minutes. A non -
commissioned officer escorted appellant back to the building where he had
previously met with CPT JF.
Shortly thereafter, CPT JF returned to the same building in order to ask
appellant whether he would consent to a urinalysis. Appellant consented to the
urinalysis. Captain JF also decided to ask appellant whether he wished to gi ve
another statement. Appellant told CPT JF that he wanted to give another statement
because he “want[ed] to get something off [his] chest.” Captain JF then reminded
appellant of his right to counsel (although not to silence), and appellant made the
statement in Prosecution Exhibit 3: “I did not give hashish to anyone to include
American Soldiers,” which is the basis for the sole false official statement
specification of Charge II. Appellant also admitted in the statement that he “smoked
[hashish]” on one occasion in either April or June 2010. This second meeting with
CPT JF lasted at most thirty minutes.
At trial, defense filed a pretrial motion to suppress Prosecution Exhibit 3.
During the Article 39(a), UCMJ, hearing, both 1SG MH and CPT JF testified to the
facts outlined above. The military judge concluded appellant’s statement was
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voluntary, and denied the motion to suppress. At trial, the government entered
Prosecution Exhibit 3 into evidence.
B. Law and Analysis
Appellant contends the military judge abused his discretion by denying the
motion to suppress his second statement to CPT JF. Appellant argues the military
judge erred when he ruled that appellant’s statement to CPT JF was voluntary; that
the statement should therefore not have been admissible at trial; and that the false
official statement conviction (Charge II and its specification) should be overturned
because appellant’s involuntary statement was the sole basis for the false official
statement charged. The government concedes that at trial, the government did not
prove by a preponderance of the evidence that appellant’s statement was voluntary.
The government also concedes that Charge II and its specification should be set
aside and dismissed.
“We review a military judge’s ruling on a motion to suppress for abuse of
discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing
United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000)). “In reviewing a
military judge’s ruling on a motion to suppress, we review factfinding under the
clearly-erroneous standard and conclusions of law under the de novo standard.”
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus on a mixed
question of law and fact . . . a military judge abuses his discretion if his findings of
fact are clearly erroneous or his conclusions of law are incorrect.” Id.Our superior court has looked at the Supreme Court ’s decision in Oregon v.
Elstad, 470 U.S. 298 (1985), “for guidance on evaluating the admissibility of a
confession obtained subsequent to one that i s deemed illegally obtained.” United
States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006).
[W]here the earlier confession was “involuntary” only
because the suspect had not been properly warned of his
panoply of rights to silence and to counsel, the
voluntariness of the second confession is determined by
the totality of the circumstances. The earlier, unwarned
statement is a factor in this total picture, but it does not
presumptively taint the subsequent confession.
Brisbane, 63 M.J. at 114 (quoting United States v. Cuento, 60 M.J. 106, 109
(C.A.A.F. 2004)). The additional factors considered in a voluntariness analysis are
found in the Supreme Court’s decision in Schneckloth v. Bustamonte, 412 U.S. 218(1973):
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In determining whether a defendant’s will was overborne
in a particular case, the Court has assessed the totality of
all the surrounding circumstances—both the
characteristics of the accused and the details of the
interrogation. Some of the factors taken into account have
included the youth of the accused, his lack of education,
or his low intelligence, the lack of any advice to the
accused of his constitutional right, the length of detention,
the repeated and prolonged nature of the questioning, and
the use of physical punishment such as the deprivation of
food or sleep.
Brisbane, 63 M.J. at 114 (quoting Schneckloth, 412 U.S. at 226 (citations omitted)).
On the facts before us, we agree with the parties that the military judge
abused his discretion when he concluded appellant’s second statement to CPT JF was
voluntary. After 1SG MH found out appellant had denied any wrongdoing, 1SG MH
had appellant escorted back to his office. First sergeant MH then accused appellant
of lying to CPT JF and repeatedly told appellant in an angry tone of voice that he
had to “go in [t]here and . . . tell the truth.” While an “admonishment to tell the
truth does not ordinarily render a subsequent statement inadmissible,” 1SG MH went
past merely exhorting appellant to tell the truth when he also ordered appellant to
return to meet with CPT JF. United States v. Morgan, 40 M.J. 389, 394 (C.M.A.
1994) (citation omitted). Appellant, a private first class, had already confessed to
drug use to 1SG MH earlier, but never received a cleansing warning. Appellant was
crying and denying his involvement during this second meeting with 1SG MH.
Immediately after appellant received the order to “go back to [CPT JF]” from his
first sergeant, he was escorted by a non-commissioned officer to meet CPT JF. We
therefore find the military judge abused his discretion when he denied appellant’s
motion to suppress. We will set aside Charge II and its specification in our decretal
paragraph. 1
1
Neither party suggests that appellant’s conviction for wrongful use of hashish on
divers occasions (Specification 2 of Charge III) should be set aside because of the
admission of appellant’s statement. We find the error in admitting appellant’s
statement was harmless beyond a reasonable doubt with respect to Specification 2 of
Charge III. See United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing
Arizona v. Fulminante, 499 U.S. 279, 285 (1991)). “For an error in admitting the
statement to be harmless beyond a reasonable doubt, this court must be convinced
that there was no reasonable likelihood that its erroneous admission contributed to
the verdict.” United States v. Hutchins, 72 M.J. 294, 299 (C.A.A.F. 2013) (citation
omitted). The evidence of appellant’s use of hashish on divers occasions is
(continued . . .)
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II. Factual and Legal Sufficiency of Attempted
Distribution of Hashish to Specialist DP and Private AA
A. Background
The evidence presented at trial showed that on or about 16 June 2010, after
appellant had been at COP Ricketts approximately two months, appellant asked
Specialist (SPC) DP and Private (PVT) AA if they wanted hashish. Both SPC DP
and PVT AA declined. Although there was evidence that appellant had purchased
hashish from ANA/ANP local nationals regularly since his arrival to COP Ricketts
in early April 2010, and that he also regularly used hashish with and distributed
hashish to fellow soldiers, SPC DP and PVT AA testified that appellant did not show
them hashish when he made the offer. There was also no evidence put on by the
government that, at the time appellant offered the hashish to the two soldiers,
appellant had access to hashish.
B. Law & Analysis
Appellant argues his convictions for attempted distribution of hashish
(Specifications 1 and 2 of Charge I) are factually and legally insufficient .
In performing our duty under Article 66, UCMJ, we conduct a de novo review
of legal and factual sufficiency. United States v. Gilchrist, 61 M.J. 785, 793 (Army
Ct. Crim. App. 2005) (citing United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002)). The test for legal sufficiency is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United States v.
Lubasky, 68 M.J. 260, 263 (C.A.A.F. 2010) (citations omitted). The test for factual
sufficiency is “whether, after weighing the evidence of record and making
allowances for not having personally observed the witnesses, [this c ourt is]
convinced of appellant’s guilt beyond a reasonable doubt.” Gilchrist, 61 M.J. at 793
(citing United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)).
Article 80, UCMJ, provides that an “act, done with specific intent to commit
an offense under this chapter,” must amount “to more than mere preparation .”
(. . . continued)
overwhelming. Four soldiers testified that they smoked hashish with appellant on
multiple occasions while at COP Ricketts; a fifth soldier testified he smoked hashish
with appellant on one occasion. Appellant’s statement admitting to use of hashish
on one occasion added little to the government’s case with respect to this
specification.
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UCMJ art. 80(a). The conduct must constitute a “substantial step toward
commission of the crime.” United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987).
This substantial step has to “unequivocally demonstrate that the crime will take
place unless interrupted by independent circumstances.” United States v.
Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (citations and internal quotation
marks omitted).
The only evidence presented by the government to support the attempted
distribution charge was that appellant offered to sell hashish to SPC DP and PVT
AA. We agree with appellant’s argument, and the government’s concession, that
appellant’s conduct in this case did not amount to more than mere preparation. See
Byrd, 24 M.J. 286; United States. v. Presto, 24 M.J. 350 (C.M.A. 1987). See
generally United States v. Jones, 37 M.J. 459, 461 (C.M.A. 1993). Therefore, we
find the evidence is legally and factually insufficient to sustain the findings of guil ty
of Charge I and its specifications, and we will provide relief in our decretal
paragraph.
III. Staff Judge Advocate’s Failure to Address Legal Errors
Raised in Appellant’s Rule for Courts-Martial 1105 matters
Appellant argues the staff judge advocate (SJA) failed to comment on the
following legal errors raised in appellant’s post-trial matters: (1) the military judge
erred in denying the defense motion to dismiss Specification 1 of Charge I because
“it was the beginning of the completed distribution of hashish” charged in
Specification 1 of Charge III; and (2) the military judge erred in denying the defense
motion to dismiss Specification 2 of Charge I because “the evidence was factually
insufficient to substantiate a ‘substantial step’ required” for an offense of attempted
distribution of hashish. Appellant seeks a new staff judge advocate recommendation
(SJAR) and action.
The government concedes the SJA failed to iden tify or address as legal error
appellant’s submissions regarding dismissal of Specifications 1 and 2 of Charge I.
Although not raised by appellant, the government further concedes that the SJA
failed to acknowledge or opine on another legal error raised by appellant in his post-
trial matters: disparate sentences between appellant and a co-actor, PVT Teague. 2
2
Appellant alleged in his post-trial matters that: “Reduction in the sent ence is
equitable because PVT Teague, a much more culpable individual convicted of
substantially similar crimes, was adjudged a 24 month sentence.” In light of the
government’s concession, we accept that this amounts to an assertion of legal error
of sentence disparity under the circumstances of this case.
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The government concurs with appellant that remand to the convening authority for a
new SJAR and action is appropriate.
While the SJA acknowledged in the addendum the relief the defense requested
in the post-trial matters, we agree with the parties that the SJA did not identify or
offer an opinion on the legal errors raised by appellant as required by Rule for
Courts-Martial 1106(d)(4). Ordinarily, “failure by the [SJA] to respond to an
allegation of legal error . . . requires remand to the convening authority for comment
by the [SJA].” United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988). However, our
superior court has permitted us to examine the underlying allegation of error, and if
we find “there is no error in the first instance at trial, [then there is no] prejudicial
error in the failure of the SJA to respond . . . .” United States v. Welker, 44 M.J. 85,
88-89 (C.A.A.F. 1996); see also Hill, 27 M.J. at 297 (“[Service courts are] free to
affirm when a defense allegation of legal error would not foreseeably have led to a
favorable recommendation by the [SJA] or corrective action by the convening
authority.”).
We do not agree that a remand to the convening authority is appropriate in
this case. Applying Welker and Hill, we examine the underlying allegation of errors
raised by appellant in his post-trial matters. We have already found appellant’s
allegations that Specifications 1 and 2 of Charge I are factually and legally
insufficient meritorious. However, the military judge’s merger of Specifications 1
and 2 of Charge I with Specification 1 of Charge III (distribution of hashish) for
sentencing and the relief we provide in our decretal paragraph moots any possibility
of prejudice to appellant by the SJA’s failure to comment on the legal errors .
We now turn to appellant’s allegation of disparate sentencing a s compared to
PVT Teague. Courts of criminal appeals are required to “engage in sentence
comparison with specific cases . . . ‘in those rare instances in which sentence
appropriateness can be fairly determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v. Lacy, 50 M.J. 286, 288
(C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).
Appellant bears the burden of proving that: (1) the cases are “closely related;” and
(2) the sentences are “highly disparate.” Id. If appellant meets both prongs, the
burden shifts to the government to show a “rational basis” for the disparity. Id.Closely related cases include those which pertain to “coactors involved in a common
crime, servicemembers involved in a common or parallel scheme, or some other
direct nexus between the servicemembers whose sentences are sought to be
compared.” Id. Sentence disparity is determined by reference to the adjudged
sentence in closely related cases. United States v. Roach, 69 M.J. 17, 21 (C.A.A.F.
2010). “Sentence comparison does not require sentence equation. ” United States v.
Durant, 55 M.J. 258, 260 (C.A.A.F. 2001) (citations omitted).
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Turning to this case, we take judicial notice of the promulgating order in PVT
Teague’s trial. 3 Both appellant and PVT Teague were convicted of wrongful use and
distribution of hashish on divers occasions at or near Maqur, Afghanistan during
similar timeframes 4 while receiving special pay under 37 U.S.C. § 310, in violation
of Article 112a, UCMJ. Private Teague was also convicted of one specification of
attempted distribution of hashish; two specifications of failure to go to his appointed
place of duty; one specification of failing to obey a lawful regulation by possessing
drug paraphernalia; one specification of assault consummated by a battery; one
specification of obstruction of justice; and one specification of wrongful solicitation
of another to distribute hashish, in violation of Articles 80, 86, 92, 128, and 134
UCMJ. Private Teague testified at appellant’s trial that he and appellant were
coactors involved in a common crime with respect to the use and distribution of
hashish, thus, appellant has met his burden that the cases are “closely related .”
In conducting our analysis as to whether appellant has met his burden to show
that the sentences are “highly disparate,” we recognize that PVT Teague stands
convicted of additional misconduct while appellant, as a result of our setting aside
Specifications 1 and 2 of Charge I and the Specification of Charge II, does not.
Appellant’s adjudged sentence was a bad-conduct discharge, confinement for three
years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
Private Teague’s adjudged sentence was a bad conduct discharge, confinement for
twenty-seven months, and forfeiture of all pay and allowances. Other than reduction
in rank, which was not a sentencing option in PVT Teague’s case because he was an
E-1 at the time of his court-martial, the sentence disparity is nine months of
confinement. Appellant has failed to meet his burden that the sentences are “highly
disparate” under the facts of this case. See, e.g., Lacy, 50 M.J. 286. Thus, his claim
of disparate sentencing in his post-trial matters lacks merit and would not have
resulted in a favorable recommendation by the SJA or any corrective action by the
convening authority. 5
3
General Court-Martial Order Number 16, Headquarters, 82d Airborne Division,
Fort Bragg, North Carolina, dated 11 August 2011, as corrected by United States v.
Teague, ARMY 20110198 (Army Ct. Crim. App. 22 May 2012) (order).
4
Appellant’s use and distribution of hashish occurred between on or about 1 April
2010 and on or about 22 June 2010. PVT Teague’s use of hashish occurred between
on or about 1 February 2010 and 22 June 2010. PVT Teague’s distribu tion of
hashish occurred between on or about 1 October 2009 and on or about 22 June 2010.
5
We note the convening authority reviewed appellant’s post -trial matters and was
given the opportunity to grant appellant clemency based solely on appellant’s
allegation that: “Reduction in the sentence is equitable because PVT Teague, a much
(continued . . .)
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IV. Post-Trial Delay
Finally, appellant moves for relief for dilatory post-trial processing. The
parties agree that, absent defense delay, it took the government 366 days to process
this 496-page record of trial from announcement of sentence to action. Appellant
alleges he deserves relief because the excessive post -trial delay violated his due-
process right to a timely review of hi s case. Appellant also argues that this court
should grant relief for the excessive delay under our Article 66, UCMJ, sentence
appropriateness powers. While the government denies that appellant suffered a due
process violation, the government concedes th at appellant should receive two months
of sentence credit as a result of the unrea sonable and unexplained delay.
Despite the excessive delay in the processing of appellant’s case, appellant
fails to demonstrate the prejudice necessary to warrant relief as a matter of law
under United States v. Moreno, 63 M.J. 129, 138-41 (C.A.A.F. 2006).
Though we find no prejudice as a result of the excessive delay, the court must
still review the appropriateness of the sentence in light of the unjustified dilatory
post-trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to
determine what findings and sentence ‘should be approved,’ based on all the facts
and circumstances reflected in the record, including the unexplained and
unreasonable post-trial delay.”). See generally United States v. Toohey, 63 M.J.
353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct.
Crim. App. 2010); Collazo, 53 M.J. at 727. Given the unjustified dilatory post -trial
processing of appellant’s case, and in light of our review of the entire record and the
government’s concession, we find it appropriate to set aside two months of
appellant’s confinement.
CONCLUSION
The findings of guilty of Charge I and its specifications and Charge II and its
specification are set aside and dismissed. The remaining findings of guilty are
AFFIRMED.
Although appellant requests a sentence rehearing, after conducting a thorough
analysis in accordance with the principles articulated in United States v. Sales,
(. . . continued)
more culpable individual convicted of substantially similar crimes, was adjudged a
24 month sentence,” notwithstanding the SJA’s failure to identify the issue as legal
error.
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22 M.J. 305 (C.M.A. 1986) and United States v. Winckelmann, M.J. , slip op.
at 12-13 (C.A.A.F. 18 Dec. 2013), we are confident in our ability to reassess
appellant’s sentence to cure the errors noted.
In evaluating the Winckelmann factors, we find there is no dramatic change to
the sentencing landscape. The military judge merged Specifications 1 and 2 of
Charge I (attempted distribution of hashish) with Specification 1 of Charge III
(distribution of hashish) for sentencing. Our dismissal of the specification of
Charge II (false official statement) only reduces the maximum punishment from
thirty-two years to twenty-seven years of confinement. The gravamen of appellant’s
misconduct is the distribution of hashish to fellow soldiers on divers occasions and
his use of hashish on divers occasions in a deployed setting. Furthermore, the
offenses of which appellant remains convicted, involving the use and distribution of
controlled substances, are commonly reviewed by this court.
After our review of the record, we are confident that, absent the errors noted,
appellant would have received a sentence of at least a bad-conduct discharge,
confinement for thirty-two months, total forfeiture of pay and allowances, and
reduction to the grade of E-1. See Sales, 22 M.J. at 308. Furthermore, having
considered the excessive post-trial delay, the entire record, and the particular facts
and circumstances of this case, we also find a two-month reduction in the sentence
appropriate. See UCMJ art. 66(c).
We affirm only so much of the sentence as provides for a bad-conduct
discharge, confinement for thirty months, total forfeiture of pay and allowances, and
reduction to the grade of E-1. 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 UMCJ arts. 58a(b), 58b(c), and
75(a).
Senior Judge YOB and Judge KRAUSS concur.
FOR THE COURT:
ANTHONY O. POTTINGER
Chief Deputy Clerk of Court
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