United States v. Specialist LAWRENCE P. MILLER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and SULLIVAN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist LAWRENCE P. MILLER
United States Army, Appellant
ARMY 20070394
Headquarters, Fort Hood
Alan L. Cook, Military Judge
Lieutenant Colonel William E. Rousseau, Staff Judge Advocate
For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel
Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain Richard P.
Pizur, JA (on brief).
For Appellee: Colonel John W. Miller II, JA; Major Elizabeth G. Marotta,
JA; Lieutenant Colonel Francis C. Kiley, JA; Major Charles C. Choi, JA (on
brief).
3 April 2008
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SUMMARY DECISION
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Per Curiam:
This case is before us for review pursuant to Article 66, Uniform Code
of Military Justice, 10 U.S.C. § 866 [hereinafter UCMJ]. In matters raised
personally by appellant under United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), appellant alleges he told his civilian defense counsel to
submit a request to the convening authority to defer automatic forfeitures
in his case pursuant to Article 57(a)(2), UCMJ. As the record is devoid of
any deferment request, government appellate counsel proactively obtained an
affidavit regarding the allegation from appellant's counsel, Mr. J.P.
Galligan.
Mr. Galligan’s affidavit is nonresponsive regarding appellant’s claim
and we are unable to resolve the issue with the matters before us. In the
interest of judicial economy and to protect appellant's best opportunity to
request clemency, we decline to order additional affidavits or an
evidentiary hearing conducted in accordance with United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967).
MILLER – 20070394
Accordingly, the convening authority's action, dated 22 June 2007, is
set aside. The record of trial will be returned to The Judge Advocate
General for a new SJAR and action by the same convening authority in
accordance with Article 60(c)-(e), UCMJ.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court