United States v. Private E1 PIERRE C. T. SCOTT

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 PIERRE C. T. SCOTT
United States Army, Appellant
ARMY 20150157
Headquarters, Seventh Army Joint Multinational Training Command
Christopher D. Carrier, Military Judge
Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Heather L.
Tregle, JA; Captain Matthew D. Bernstein, JA (on brief); Captain Katherine L.
DePaul, JA; Captain Matthew D. Bernstein, JA (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).
13 June 2017
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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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
FEBBO, Judge:
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error 1 which merits discussion and relief. Appellant asks this
court to provide appropriate relief to remedy the dilatory post-trial processing of his
case. We considered the issues raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant’s Grostefon issue concerning one
1
Appellant withdrew an assignment of error asserting he was denied effective
assistance of counsel when his counsel allegedly failed to submit an offer to plead
guilty to the convening authority (CA). After this court issued an order for
appellant’s trial defense counsel to address the claim, the trial defense counsel
submitted a copy of the offer to plead guilty that was submitted and disapproved by
the CA.
SCOTT—ARMY 20150157
of the witnesses providing a letter recanting his testimony merits discussion but no
relief. The remaining errors alleged pursuant to Grostefon do not merit detailed
discussion or relief. 2
A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of one specification each of fraudulent enlistment,
desertion, fleeing apprehension, and general disorder, in violation of Articles 83, 85,
95, 134, Uniform Code of Military Justice, 10 U.S.C. §§ 883, 885, 895, 934 (2012)
[hereinafter UCMJ]. The military judge also convicted appellant, contrary to his
pleas, of one specification of sexual assault in violation of Article 120, UCMJ, 10
U.S.C. § 120 (2012). The judge sentenced appellant to a dishonorable discharge and
confinement for nine years. The military judge credited appellant with 287 days of
pretrial confinement and thirty days of Article 13, UCMJ credit against his sentence
to confinement. The CA approved the sentence as adjudged and approved 317 days
of confinement credit.
BACKGROUND
In 2013, appellant was assigned to an engineer unit in Germany. Private First
Class (PFC) Stanford was in the same unit as appellant and they were friends. The
victim—Specialist (SPC) AB—was also assigned to an engineer unit in Germany.
Private Stanford began dating SPC AB in August 2013.
On 11 September 2013, SPC AB visited the barracks room of her boyfriend,
PFC Stanford, and they argued. Specialist AB remained in PFC Stanford’s barracks
2
Appellant asserts in his Grostefon submission: (1) the sentence was unduly harsh;
(2) appellant was already charged in state court for resisting apprehension and
sentenced to time served; (3) appellant’s desertion was a result of his concerns about
his family’s medical issues and need to find a stable home; and (4) the sexual assault
nurse examiner (SANE) testified Specialist (SPC) AB did not complain of injuries or
pain the day after the assault. After considering the record, the charges of which
appellant was found guilty, and appellant’s service record introduced during the
government’s presentencing case (to include non-judicial punishment under Article
15, UCMJ), the military judge’s sentence is appropriate. Appellant received day-for-
day credit for any pretrial confinement by civilian authorities. During the providence
inquiry for appellant’s guilty plea to desertion, the military judge discussed in detail
appellant’s family situation when he chose not return to his unit. Appellant
disavowed any valid defense before he pleaded guilty to the desertion charge. The
SANE testified SPC AB did not complain of injuries or pain the next day. This
testimony was consistent with SPC AB’s testimony that she initially thought
appellant was her boyfriend and he inserted his penis inside her only for short time
before he stopped.
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room and PFC Stanford went to hang-out in another soldier’s barracks room with
appellant. Appellant knew SPC AB was in the room sleeping and asked for PFC
Stanford’s room key. Appellant used the key to enter PFC Stanford’s room.
Specialist AB was asleep in the bed and appellant sexually assaulted her. Specialist
AB left the room upset and crying.
Later that evening, SPC AB told PFC Stanford and another soldier that she
was sexually assaulted by appellant. The next day, SPC AB made a restricted report
of the sexual assault. See Dep’t of Defense Instr. (DODI) 6495.02, encl. 4, para.
1(b) (28 Mar. 2013). In October 2013, SPC AB unrestricted the report of the sexual
assault. See DODI 6495.02, encl. 4, para. 1(a). The U.S. Army Criminal
Investigation Division (CID) began an investigation. In December 2013, appellant
deserted from his unit. In May 2014, after resisting apprehension, appellant was
arrested in Alabama.
At his court-martial, appellant, SPC AB, PFC Stanford, and nine other
witnesses testified on the merits. The contested issues included consent, lighting in
the room at the time of the assault, and SPC AB’s motivation to fabricate the
allegation of sexual assault.
Specialist AB testified she did not consent to have any sexual contact with
appellant. According to SPC AB’s testimony, when PFC Stanford left the room and
she went to sleep, a television was on, a candle was lit, and a closet light was on.
When she awoke the candles were blown out and the lights were off. Specialist AB
awoke to appellant touching her, pulling her shorts down, and inserting his penis in
her vulva. At first, she thought it was her boyfriend, PFC Stanford. However, after
the sexual acts “felt different” and appellant “smelled like cigarette smoke,” SPC
AB turned around and saw appellant. Appellant continued and pushed her head
away and finally stopped after SPC AB yelled at him when she again turned around
to see it was not PFC Stanford she was having sex with. After the sexual assault,
SPC AB was upset at both appellant and PFC Stanford. She suspected PFC Stanford
and appellant had some type of agreement for appellant to pretend he was her
boyfriend in order to have sex with her. Specialist AB denied having a motive to
fabricate the allegations.
Appellant testified on the merits the sexual contact was consensual.
According to his testimony, when he entered the room, there were candles lit and
there was light inside the room from the window and common area. Specialist AB
did not say anything but they made eye contact and started kissing. Appellant
testified the sexual intercourse just happened from his “vibes.” Appellant asserted
SPC AB fabricated the sexual assault allegations to avoid non-judicial punishment
for a pending Article 15, UCMJ, and to receive orders to be re-assigned out of
Germany. See DODI 6495.02, para. 4(o).
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After trial, PFC Stanford signed a two-page, unsworn letter purporting to
recant his testimony at trial. Private Stanford stated he lied when he testified at
trial. He also now alleges the trial counsel assisted him in changing his testimony
from his original statement to CID. He claims both the trial counsel and defense
counsel ignored his opinion about SPC AB’s credibility and motivation to fabricate
the allegations. We will first address PFC Stanford’s purported post-trial
recantation.
LAW AND DISCUSSION
A. Recantation of Witness at Trial
Although not phrased as such by appellant, it appears appellant is seeking a
petition for a new trial under Article 73, UCMJ, and Rule for Courts-Martial
[hereinafter R.C.M.] 1210. See United States v. Marcus, ARMY 2013079, 2016
CCA LEXIS 96 (Army Ct. Crim. App. 19 Feb. 2016) (mem. op.), pet. denied, 75
M.J. 403 (C.A.A.F. 2016); see also United States v. Cuento, 60 M.J. 106, 112
(C.A.A.F. 2004) (petitions for new trial based on a witness's recantation should not
be granted unless the court is “reasonably well satisfied that the testimony given by
a material witness is false”). Article 73, UCMJ, allows an accused to petition for a
new trial “on the grounds of newly discovered evidence or fraud on the court.”
Article 73, UCMJ, also provides the mechanism for us to consider evidence outside
the record and initially address appellant's claims. We believe our approach is
consistent with the structure of the UCMJ and the nature of appellant's asserted
error.
Regarding new evidence, R.C.M. 1210(f)(2) requires an appellant to support
his or her petition with affidavits from witnesses who would testify at the new trial.
R.C.M. 1210(c)(9). “Each such affidavit should set forth briefly the relevant facts
within the personal knowledge of the witness”. Id. (emphasis added); see also
United States v. Zaiss, 42 M.J. 586, 593 n.2 (Army Ct. Crim. App. 1995) (“A signed
statement is not the same as an affidavit.”). Generally, to supplement the record
with new substantive evidence requires the evidence to be either a sworn affidavit or
a declaration made under penalty of perjury. United States v. Axtell, 72 M.J. 662,
665 (Army Ct. Crim. App. 2013). For petitions for a new trial, affidavits are
required. R.C.M. 1210(c)(8) and (9). Recantations of trial testimony are viewed by
federal courts with “extreme suspicion.” Cuento, 60 M.J. 112; see also United
States v. Giambra, 38 M.J. 240 (C.M.A. 1993). Petitions for a new trial should not
be granted unless “the court is reasonably well satisfied that the testimony given by
a material witness is false.” Giambra, 38 M.J. at 241-42 (quoting Larrison v. United
States, 24 F.2d 82, 87 (7th Cir. 1928)).
Private Stanford’s post-trial unsworn letter raises the issue of whether
appellant is entitled to a new trial based on either new evidence or because
prosecutorial misconduct led to a fraud upon the court. As an initial matter, PFC
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Stanford’s post-trial letter is not an affidavit and is unsworn. Since his statement is
not a sworn affidavit or a declaration made under penalty of perjury this court will
not consider the letter on appeal. United States v. Cade, 75 M.J. 923, 929 (Army Ct.
Crim. App. 2016), pet. denied 76 M.J. 133 (C.A.A.F. 2017); see also R.C.M. 1210(c)
(requiring an affidavit). However, even assuming we did consider the letter, the
recantation is unlikely to produce a “substantially more favorable result for
appellant.” R.C.M. 1210(f)(2)C).
1. Private First Class Stanford's Testimony Pretrial and at Trial
Private Stanford testified for the defense at a pretrial motion hearing and
testified for the government during the court-martial.
During the pretrial hearing, PFC Stanford testified he had a close relationship
with SPC AB between August 2013 and November 2013. Private Stanford testified
the day after the sexual assault, he spoke to SPC AB, and she did not seem upset or
emotionally disturbed by what happened the night before. Private Stanford did not
see SPC AB in-person on 12 September 2013, and SPC AB never stated she wanted
to leave Germany nor did she complain about her unit leadership.
At trial, PFC Stanford testified he and appellant were in the same battalion,
lived in the same barracks, and were friends. According to PFC Stanford, on 11
September 2013, SPC AB came to his room. Since they had been arguing, PFC
Stanford left the room and went to see appellant. When he left SPC AB in his room,
she appeared to be asleep and the lights were off. Private Stanford told appellant
SPC AB was sleeping in his room. Appellant stated he was hungry and took PFC
Stanford’s room key to get something to eat. Appellant was only gone for “like five
minutes.” Appellant did not say anything and returned the room key. Private
Stanford got a text from another soldier that SPC AB was running down the barracks
stairs and crying. Private Stanford then spoke on the phone with SPC AB, who
“didn’t sound like herself” and stated, “I don’t know what kind of games you and
your friends play, but we’ll going to see who get [sic] the last laugh.” Later that
evening, PFC Stanford met SPC AB, who told PFC Stanford she was asleep in the
room and appellant inserted his penis into her. She stated she thought appellant was
PFC Stanford. A few days later, PFC Stanford spoke to appellant, who stated the
sexual intercourse was consensual.
During cross-examination by appellant’s defense counsel, PFC Stanford
testified that contrary to SPC AB’s testimony, they did not watch television and the
television was not on when he left. He also testified the outside light coming
through the window was enough to be able to see someone in the room. Private
Stanford left two candles burning when he left the room, and SPC AB told him she
was able to see appellant right before he inserted his penis inside her. According to
PFC Stanford, SPC AB chose to initially file a restricted report to not get PFC
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Stanford in trouble because the incident happened in his room. When he spoke to
SPC AB the next day, she was no longer angry with PFC Stanford and said she
“would handle it.” Private Stanford testified he smoked cigarettes back in
September 2013 and denied initially telling SPC AB and another soldier he did not
know how appellant got into his barracks room. Private Stanford had contact with
appellant every day and gave an opinion that he thought appellant was peaceful and
respected women.
2. Post-Trial “Recantation”
In his unsworn letter on appeal, PFC Stanford recants his trial testimony and
writes “what most of the witnesses and I said wasn’t true.” Private Stanford's
unsworn letter claims the “trial counsel basically helped me re-write my sworn
statement.” Private Stanford states he lied to avoid prosecution and also states he
tried to explain information to appellant’s defense counsel. However, appellant’s
defense counsel “continued to let the truth go unheard” since “they wanted a
conviction” or for appellant to plead guilty.
Now, PFC Stanford claims SPC AB was angry at him for not agreeing to
marry her. Private Stanford states he was afraid SPC AB would accuse him of
sexual assault and does not think SPC AB’s allegations were true. He tried to
explain to the trial counsel SPC AB’s motivation to fabricate the allegations.
According to PFC Stanford, SPC AB was trying to avoid being separated from the
Army for misconduct and desired to leave Germany. However, he was allegedly
“shut down” by the trial counsel when he tried to explain why SPC AB would make
a “ridiculous claim” of sexual assault. Private Stanford states he left candles
burning and a closet light on when he left the room and claims he did not watch
television with SPC AB or leave the television on when he left. When PFC Stanford
initially saw appellant that evening, appellant mentioned he was hungry and asked
why PFC Stanford was in another soldier’s barracks room.
According to his post-trial unsworn letter, PFC Stanford told appellant that
SPC AB came over to his room for an intimate evening, but they got into an
argument, and he was “not interested in her anymore.” Therefore, he left his room
and she remained. Private Stanford stated SPC AB “showed interest” and “flirted
with us all.” After telling appellant this information, appellant asked if he could go
to the room “to check on her” and “see what she wanted.” Private Stanford gave
appellant the key to his room. Appellant returned a short-time later, and said he and
SPC AB had consensual sex.
3. Review of Post-Trial Recantation
When comparing PFC Stanford’s testimony at trial and his post-trial unsworn
let, there are areas that are generally consistent. In both, PFC Stanford explains why
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SPC AB was in his room alone and how appellant gained entry to the barracks room.
In both, PFC Stanford stated he left candles lit and did not leave a television on
when he left the room. Although he now states he also left a closet light on, PFC
Stanford testified that in any case, there was enough light to see inside the room.
Private Stanford also confirms appellant was only in his room for a short time,
although now he claims fifteen minutes, and SPC AB was upset and angry afterward.
Specialist AB told PFC Stanford she thought appellant was PFC Stanford. Specialist
AB was angry since she suspected PFC Stanford and appellant had some type of
agreement for appellant to pretend he was her boyfriend in order to have sex with
her. He also confirms appellant admitted he stuck his penis into SPC AB.
At points, the differences between PFC Stanford’s trial testimony and post-
trial letter could be explained by an evolving sense or understanding of events from
that evening and his discussion with appellant and SPC AB afterward. At other
points, however, there are major differences. First, PFC Stanford now contends the
government trial counsel helped him “re-write his sworn statement” before he
testified at trial. 3 However, PFC Stanford’s trial testimony was consistent with his
sworn statement to CID and at the preliminary hearing prior to trial. 4 Similarly, PFC
Stanford alleges defense counsel did not want to listen to “the truth” and were more
interested in a conviction or a guilty plea. This assertion is completely unsupported
by the record. Throughout the entire trial, defense counsel zealously represented
appellant. For example, after PFC Stanford’s eight-page direct testimony, defense
3
It is clear from the context of PFC Stanford’s post-trial letter he is referring to his
testimony at trial instead of his actual sworn statement to CID. On 24 October 2013,
PFC Stanford made a detailed two-page sworn statement to CID and it was video
recorded. In the sworn statement, PFC Stanford provided a half-page narrative of
what he observed on 11 September 2013 and his discussions with SPC AB and
appellant. The remainder of the statement included PFC Stanford’s answer to
follow-up questions by the CID special agent.
4
Private Stanford’s statement to CID was not admitted as an exhibit at trial and was
not considered by the court. We do not and did not give any weight to the allied
documents outside the record of trial to determine the factual or legal sufficiency of
an appellant’s plea of guilty. United States v. Cade, 75 M.J. 923, 928 (Army Ct.
Crim. App. 2016) (record of trial does not normally include allied documents).
However, our interpretation here is consistent with the pretrial investigation
contained in the allied documents. At the preliminary hearing, PFC Stanford also
testified consistent with his initial statement to the CID special agent, who did not
question him about the room lighting. At the preliminary hearing, PFC Stanford
provided sworn testimony he left candles lit and there was no television on when he
left the room. Private Stanford provided additional testimony favorable to appellant
when he testified SPC AB “seemed normal” the next day.
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counsel conducted a forty-nine-page cross-examination. During the vigorous cross-
examination of PFC Stanford, defense counsel were effective in attempting to
minimize PFC Stanford’s testimony, in discrediting SPC AB’s testimony, and in
bolstering appellant’s testimony. Similarly, defense counsel conducted a vigorous
cross-examination of the other government witnesses to include SPC AB.
Second, in seeking to discredit SPC AB in his post-trial letter, PFC Stanford
provides insights into his discussions with appellant that evening before the sexual
assault. In the CID statement and at trial, PFC Stanford swore he gave appellant the
key to his barracks room only because appellant was hungry and wanted to find
something to eat. Contrary to this testimony at trial, PFC Stanford now asserts
appellant went to the room to specifically to check on SPC AB and “see what she
wanted to talk about.” This “check-in” was right after PFC Stanford told appellant
she allegedly “showed interest” and “flirted with” other soldiers in the unit to
include appellant. Private Stanford’s post-trial letter appears to support SPC AB’s
intuition concerning PFC Stanford and appellant’s discussions about appellant going
to the barracks room for something other than merely getting some food. 5 In this
respect, PFC Stanford’s post-trial statement is inculpatory in that it would have been
some evidence appellant went to the room for sex.
We are not required, however, to resolve these matters decisively. Our role is
to “merely decide[] if the evidence is sufficiently believable to make a more
favorable result probable.” Brooks, 49 M.J. at 69. As discussed above, his post-trial
unsworn letter that claims he was forced to materially alter his testimony from his
original statement to CID is completely at odds with his actual sworn trial
testimony. His broad claim he lied during trial and was not allowed to testify
truthfully about the sexual assault is contradicted by his detailed testimony at both
5
This court offers no opinion on whether or not PFC Stanford was more culpable in
the sexual assault than he originally admitted to CID. However, his statements
about his friendship with appellant and their discussions immediately prior to sexual
assault makes this court view his letter with some suspicion. According to PFC
Stanford’s post-trial unsworn letter, he told appellant SPC AB’s reason for coming
to PFC Stanford’s room was for PFC Stanford and SPC AB to spend an intimate
evening together. Private Stanford explained his lack of interest in SPC AB after
they argued, discussed her alleged interest in appellant, and explained SPC AB was
asleep in the room, prior to giving him the key to his barrack’s room. “[P]ost-trial
attempts by co-actors to exonerate one or the other should be viewed with extreme
suspicion. . . . Petitions for new trial should be denied where post-trial attempts to
exculpate the petitioner appear 'contrived.' In these situations, such attempts should
simply be deemed unworthy of belief and rejected.” United States v. Brooks, 49
M.J. 64, 68-9 (C.A.A.F. 1998) (quoting United States v. Bacon, 12 M.J. 489 (C.M.A.
1982).
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the Mil. R. Evid. 412 hearing and at the trial on the merits. We find that most of
PFC Stanford's post-trial letter does not present materially new evidence or was
already addressed at appellant’s trial. Other portions of his letter lack the credibility
to warrant any change in the court-martial findings.
4. Probability of More Favorable Result
Portions of PFC Stanford’s letter include information that was already
addressed and excluded by the military judge in a Mil. R. Evid. 412 hearing.
Specialist AB’s alleged motivation to fabricate the allegations in order to avoid
discipline and be re-stationed outside of Germany is not new information. These
motives to fabricate were presented to the military judge by appellant’s defense
counsel at trial. The issue about lighting in the barrack’s room and ability for SPC
AB to see appellant was fully litigated at trial. His assertion now that he left his
closet light on actually bolsters SPC AB’s testimony, since she also testified the
closet light was on when he left the room. Specialist AB’s demeanor after the
sexual assault was fully litigated at trial. Private Stanford testified at the Mil. R.
Evid. 412 hearing and at trial that he did not think SPC AB was upset or angry after
he explained he was not involved in the sexual assault. On both the issue of lighting
and demeanor, PFC Stanford provided testimony at trial that both the government
and defense argued was favorable to their theory of the case.
Finally, even if we were to find the recantations of PFC Stanford were new
evidence, the importance—or lack thereof—of his testimony must be considered
within the scope of the entire trial. Contrary to his assertion that he was a “star
witnessed [sic]” at trial, PFC Stanford was not a material witness on the charged
offenses. Private Stanford was one of eleven merit witnesses that testified at trial.
The post-trial statement does not allege SPC AB has recanted or made any
statements to PFC Stanford that the sexual acts with appellant were consensual.
Private Stanford merely speculates appellant is telling the truth (which would be
impermissible ‘human lie detector’ testimony), SPC AB is not credible, and SPC AB
should have been more emotionally impacted by the crime. Only appellant and SPC
AB were in the barracks room when the sexual assault occurred. While PFC
Stanford’s testimony is not inconsequential, the government's direct examination
amounted to eight pages of a 757-page record. In other words, PFC Stanford’s
recantation is unlikely to produce a “substantially more favorable result” for
appellant. R.C.M. 1210(f)(2)(C).
B. Dilatory Post-Trial Delay
The convening authority took action 202 days after the conclusion of
appellant’s court-martial. Of that delay, twenty days were attributable to the
defense, and 182 days were attributable to the government. The record consists of
five volumes, and the trial transcript is 757 pages. Since the addendum to the Staff
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Judge Advocate Post-Trial Recommendation (SJAR) included a discussion about
appellant’s alleged errors raised in his R.C.M. 1105/1106 matters, the addendum was
served on appellant and his counsel. Thirteen days later, appellant submitted
additional maters to the CA. The staff judge advocate (SJA) included a summary
explaining the post-trial processing in this case. We do not find a due process
violation or unreasonable post-trial delay by the CA.
After the CA completed initial action, the record of trial was mailed to this
court and received on 5 October 2015. On 8 October 2015, the court delivered the
record of trial to Defense Appellate Division (DAD). However, based on a clerical
error by our court, it took ninety-one days to serve the referral and designation of
counsel transmittal letter to DAD, which is located in the same building on Fort
Belvoir as this court. Based on our error, we provided DAD an enlargement of time
to review the record of trial. Under the Moreno standard for appellate review, the
court has eighteen months to complete appellate review and issue a decision. United
States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
Although we find no due process violation in the post-trial processing of
appellant’s case, we 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); United States v. Collazo, 53 M.J. 721, 727 (Army Ct.
Crim. App. 2000). While appellant’s sentence was appropriate at the time it was
adjudged, we must consider the appropriateness in light of appellate delay and what
“should be approved.” UCMJ art. 66(c). This court has found convening authorities
dilatory in post-trial processing when it has taken months to mail a completed record
of trial to this court. We should likewise be equally critical and consider when this
court is responsible for ninety-one days of unreasonable post-trial delay in delivering
a referral letter within the same building. Thus, we find relief is appropriate under
the facts of this case.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing by this court, however, we
affirm only so much of the sentence as provides for a dishonorable discharge and
confinement for eight years and eleven months. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the sentence set
aside by this decision, are ordered restored. See UCMJ arts. 58a(b), 58b(c), and
75(a).
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Senior Judge MULLIGAN and Judge WOLFE concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
11