UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          LIND, KRAUSS, and BORGERDING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                          Specialist JOE F. GARCIA, JR.
                          United States Army, Appellant

                                   ARMY 20121174

                        Headquarters, 1st Cavalry Division
              Gregory A. Gross and Randall L. Fluke, Military Judges
         Lieutenant Colonel R. Tideman Penland, Jr., Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Michael J. Millios, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                      7 May 2014

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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of desertion in violation of Article 85,
Uniform Code of Military Justice, 10 U.S.C. § 885 (2006) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for six months, and reduction to the grade of E-1. Prior to action, the
convening authority deferred automatic forfeitures; at action, the convening
authority noted the termination of that deferment and declared that the automatic
forfeiture of pay required by Article 58b, UCMJ, was waived effective the date of
the action for a period of two months with direction that those funds be paid to the
appellant’s wife. Appellant was also credited with two days against the sentence to
confinement.

      This case is before the court for review under Article 66, UCMJ. Appellant
assigns one error and raises two others pursuant to United States v. Grostefon,
GARCIA — ARMY 20121174

12 M.J. 431 (C.M.A. 1982). We have considered those matters personally raised by
appellant pursuant to Grostefon, and find they are without merit. Appellant’s
assignment of error, however, warrants brief discussion and relief. He complains
that ambiguity in both the staff judge advocate’s addendum and the convening
authority’s action warrant a new review and action. The government agrees with
appellant.

       Pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105, appellant
submitted matters for the convening authority’s consideration. As part of that
submission, appellant complained of unreasonable post-trial delay. The staff judge
advocate noted this assertion of legal error in his addendum, but he did not clearly
agree or disagree with appellant’s assertion, or explicitly advise the convening
authority whether corrective action should be taken, as is required by R.C.M.
1106(d)(4). Instead, after properly parsing the appellant’s allegation of “legal error”
and separate “Clemency Request,” the staff judge advocate stated he “disagree[ed]
with the Defense request.” He then recommended the convening authority approve
the sentence as adjudged, but that “[b]ased on the length of post-trial delay in this
case,” he also recommended the convening authority waive two months of automatic
forfeitures. The convening authority adopted the recommendation.

       The problem with this course of action was that there were no automatic
forfeitures to waive because appellant was long out of confinement. We might glean
from the addendum the staff judge advocate’s disagreement with appellant’s
allegation of legal error; advice that no corrective action was required; and
recommendation that the convening authority grant clemency in light of post-trial
delay. In any event, the government concedes sufficient ambiguity in the convening
authority’s action on the matter of relief for post-trial delay and joins with appellant
in requesting this court to return the matter for a new review and action.

        We agree with the parties. In light of the convening authority’s apparent, but
ill-informed and thus possibly frustrated, intent to grant some sort of relief for post-
trial delay, a new review and action is warranted. See generally United States v.
Hill, 27 M.J. 293, 296 (C.M.A. 1988) (“[I]n most instances, failure of the staff judge
advocate or legal officer to prepare a recommendation with the contents required by
R.C.M. 1106(d) will be prejudicial and will require remand of the record to the
convening authority for preparation of a suitable recommendation.”); UCMJ art. 58b;
R.C.M. 1101(d), 1105-1107.

      The action of the convening authority dated 7 October 2013 is set aside. The
record of trial will be returned to The Judge Advocate General for a new action by
the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.




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GARCIA — ARMY 20121174

                          FOR
                         FOR   THE
                             THE   COURT:
                                 COURT:




                         ANTHONY O. POTTINGER
                          ANTHONY
                         Acting            O. POTTINGER
                                Clerk of Court
                          Acting Clerk of Court




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