United States v. Staff Sergeant ERIC M. MILES ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ERIC M. MILES
United States Army, Appellant
ARMY 20150415
Headquarters, United States Army Support Activity, Fort Dix
Gregory R. Bockin, Military Judge
Lieutenant Colonel Ismael Sanabria, Jr., Staff Judge Advocate (pretrial)
Lieutenant Colonel Dolly R. Livingston, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).
17 January 2017
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SUMMARY DISPOSITION
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HERRING, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of maltreatment by sexual harassment
and one specification of abusive sexual contact, in violation of Articles 93 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 893, 920 (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a dishonorable discharge,
confinement for one year, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved only so much of the adjudged
sentence as provided for a bad-conduct discharge, confinement for one year,
forfeiture of all pay and allowances, and reduction to the grade of E-1.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raised two assignments of error and also personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We do not yet address these
given that the staff judge advocate (SJA) did not advise the convening authority with
MILES—ARMY 20150415
respect to the legal errors raised by appellant in his matters pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 1105.
BACKGROUND
Appellant’s R.C.M. 1105 matters alleged legal error, but the addendum to the
staff judge advocate recommendation merely stated, “defense submitted three (3)
Government legal errors, namely: the Government did not execute PVT Miles’s
extension orders; the Fort Dix General Courts-Martial Convening Authority did not
have proper jurisdiction over PVT Miles to prosecute his case; and the Government
did not follow the advice of the Article 32 Preliminary Hearing Officer.” There is
no evidence of the SJA’s advice to convening authority regarding the merit of the
legal errors alleged. Neither the convening authority’s action nor memorandum
denying appellant’s post-trial request for discharge in lieu of trial by courts-martial
address the legal errors alleged in appellant’s R.C.M. 1105 matters.
LAW AND DISCUSSION
This court reviews questions of whether post-trial processing was completed
correctly de novo. United States v. Sheffield, 60 M.J. 591, 593 (C.A.A.F. 2004).
R.C.M. 1106(d)(4) states:
[W]hen the recommendation is prepared by a staff judge
advocate, the staff judge advocate shall state whether, in
the staff judge advocate’s opinion, corrective action on the
findings or sentence should be taken when an allegation of
legal error is raised in matters submitted under R.C.M.
1105 or when otherwise deemed appropriate by the staff
judge advocate. The response may consist of a statement
of agreement or disagreement with the matter raised by the
accused. An analysis or rationale for the staff judge
advocate’s statement, if any, concerning legal error is not
required.
Here, the SJA did not respond to the alleged legal errors or indicate whether
she believed corrective action was necessary. Because we cannot determine whether
the convening authority was properly advised, we find unresolvable error and set
aside the action and return the case for a new SJAR and action.
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MILES—ARMY 20150415
CONCLUSION
The convening authority’s action, dated 11 January 2016, is set aside. The
record of trial is returned to The Judge Advocate General for a new SJAR and action
by the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.
Senior Judge CAMPANELLA and Judge PENLAND concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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