United States v. Specialist RICHARD A. GIFFORD

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist RICHARD A. GIFFORD
United States Army, Appellant
ARMY 20120545
Headquarters, 2d Infantry Division
T. Mark Kulish, Military Judge
Major Doug J. Choi, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Robert N. Michaels, JA (on original brief);
Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E. Nieman, JA; Captain
Heather L. Tregle, JA (on brief on specified issues); Lieutenant Colonel Jonathan F.
Potter, JA; Captain Heather L. Tregle, JA (on reply brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean P. Fitzgibbon, JA (on original brief); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major John K. Choike, JA (on brief on
specified issues); Lieutenant Colonel A.G. Courie III, JA; Major John K. Choike,
JA; Captain Robyn M. Chatwood, JA (on supplemental brief).
28 April 2016
---------------------------------------------------------------
SUMMARY DISPOSITION ON FURTHER REVIEW
---------------------------------------------------------------
Per Curiam:
A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of three specifications of failure to
obey a lawful general order and one specification of aggravated sexual assault upon
one who was substantially incapacitated, in violation of Articles 92 and 120,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920 (2006 & Supp. IV)
[hereinafter UCMJ]. The members sentenced appellant to a bad-conduct discharge,
confinement for forty-five days, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority approved the adjudged sentence.
GIFFORD—ARMY 20120545
On 22 January 2015, we set aside the finding of guilty to one of the
disobedience specifications and dismissed that specification. We affirmed the
remaining findings of guilty and the sentence. United States v. Gifford, 74 M.J. 580(Army Ct. Crim. App. 2015). On 8 March 2016, the Court of Appeals for the Armed
Forces reversed our decision and returned the record of trial to the Judge Advocate
General of the Army for remand to this court for further review under Article 66(c),
UCMJ. United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016).
As a result, this case is again before us for review pursuant to Article 66,
UCMJ. The disobedience specifications allege appellant failed to obey a 2d Infantry
Division policy letter by giving alcohol to persons under twenty-one years of age for
purpose of consumption. At trial, the panel reached its findings of guilty after being
instructed by the military judge that the government was required to prove that the
appellant knew that the individuals to whom he was providing the alcohol were
under twenty-one years of age. On appeal, we concluded the general order did not
include a knowledge of age requirement and conducted our review accordingly. Our
superior court has now remanded this case to our court for further proceedings
consistent with their opinion. In their opinion, the CAAF concluded that “the proper
legal standard the CCA [this court] was obligated to apply in the course of its
Article 66(c), UCMJ, review of Appellant’s conviction was whether Appellant acted
with reckless disregard as to whether the individuals to whom he was providing
alcohol were under twenty-one years of age.” Id. at 148.
We have received further briefing by the parties and have considered the
record of trial in light of our superior court’s conclusion that “the general order at
issue required the Government to prove Appellant’s mens rea with respect to the age
of the recipients of the alcohol” and “that the Government was required to prove, at
a minimum, that Appellant acted recklessly in this regard.” Id. at 141. We now
determine that appellant provided alcohol to underage individuals for the purpose of
consumption while consciously disregarding the known risk that those individuals
were under twenty-one years old. See Id. at 148.
The evidence at trial showed that the two remaining disobedience
specifications involve underage soldiers who were not strangers to the appellant.
Appellant and Private GB, who is also the sexual assault victim in this case, knew
each other, were Facebook friends, and lived on the same floor in the barracks.
Private First Class CD testified that she “hung out” often with the appellant and
even considered appellant to be her “best friend.” Therefore, we find the record
establishes that appellant acted at least recklessly with respect to the age of these
two underage individuals to whom he gave alcohol.
2
GIFFORD—ARMY 20120545
CONCLUSION
In our earlier decision, we set aside the finding of guilty to Specification 3 of
Charge I and dismissed that specification. That portion of the decision is unaffected
and that specification remains dismissed. The remaining findings of guilty are again
AFFIRMED.
Also, for the reasons stated in our prior decision, the approved sentence is
again AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings that were set aside by our earlier
decision and again here, are ordered restored.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
3