United States v. Staff Sergeant ZACHARY S. GREGORY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN, and GIFFORD
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ZACHARY S. GREGORY
United States Army, Appellant
ARMY 20081144
Headquarters, Fort Carson
Debra L. Boudreau, Military Judge (arraignment)
Donna M. Wright, Military Judge (trial)
Colonel Michael W. Meier, Staff Judge Advocate
For Appellant: Major Grace Gallagher, JA; Major Daniel E. Goldman, JA (on
brief).
For Appellee: Lieutenant Colonel Martha L. Foss, JA.
6 April 2010
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SUMMARY DISPOSITION
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Per Curiam:
This case is before the court without assignment of error. In Charge
I, Specification 1, appellant was convicted of making a false official
statement by signing a 21 December 2007 sworn statement that, in relevant
part, “claimed he went before a promotion board and made the list for
promotion to Staff Sergeant” or words to that effect.
The record contains sufficient evidence to establish that appellant
made a false claim in the 21 December 2007 sworn statement when he stated
he went before a promotion board. The record does not contain sufficient
evidence, however, to establish the claim that appellant made the statement
he “made the list for promotion to Staff Sergeant” or words to that effect.
Although appellant claims in his sworn statement he made the promotion
point cut off score, making the promotion point cut off score does
automatically place a soldier's name on a promotion list. See generally
Army Regulation 600-8-19, Enlisted Promotions and Reductions, Chapter 3 (20
March 2008). Therefore, we hold that the record is legally and factually
insufficient to sustain a conviction as to the words “and made the list for
promotion to Staff Sergeant,” in Specification I of Charge I. See United
States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000); United States v.
Turner, 25 M.J. 324 (C.M.A. 1987).
The finding of guilty as to Charge I, Specification 1, is affirmed,
except the words “and made the list for promotion to Staff Sergeant.” The
remaining findings of guilty are affirmed.
We have considered the errors personally asserted by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find
them to be without merit.
Reassessing the sentence on the basis of the error noted, the entire
record, and applying the principles of United States v. Sales, 22 M.J. 305(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identified by Judge Baker in his concurring opinion, we
affirm the sentence.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court