UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Sergeant FERNANDO ALMAGUER
                         United States Army, Appellant

                                  ARMY 20120228

                              Headquarters, V Corps
               Christopher Fredrikson, Military Judge (arraignment)
                       Wendy Daknis, Military Judge (trial)
        Colonel Mark D. Maxwell, Staff Judge Advocate (pretrial and trial)
  Lieutenant Colonel Matthew M. Miller, Acting Staff Judge Advocate (post-trial)


For Appellant: Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA (on brief).

                                     17 May 2013

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of violating a lawful order from a
superior commissioned officer, two specifications of larceny, and four specifications
of assault in violation of Articles 90, 121, and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 890, 921, 928 (2006) [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a bad-conduct discharge, confinement
for twelve months, and reduction to the grade of E-1.

       This case is before our court for review under Article 66, UCMJ. Appellate
counsel submitted this case on its merits and appellant personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the
matters personally raised by appellant are without merit. However, we find an
additional matter is worth discussion and relief.
ALMAGUER—ARMY 20120228

                                  BACKGROUND

       In specifications 2 and 3 of Charge III, appellant was charged with assaulting
SA by squeezing her neck and by unlawfully throwing her to the floor. Pursuant to
his pleas, the military judge found appellant guilty of each of these specifications.
Appellant had previously received non-judicial punishment (NJP) under Article 15,
UCMJ, for this same conduct.

      During the presentencing phase of the trial, appellant’s defense counsel
entered a record of appellant’s prior Article 15, UCMJ, into evidence and requested
the military judge evaluate and order the appropriate credit to be applied pursuant to
United States v. Pierce, 27 M.J. 367 (C.M.A. 1989). Appellant’s defense counsel
expressly requested the military judge determine the appropriate credit at an Article
39a, UCMJ, hearing rather than leaving it to the determination of the convening
authority.

      When announcing the credit to be applied to appellant’s sentence, the military
judge stated:

             Additionally, the court agrees with the government that
             the reduction in grade also incorporates using the stripe
             for stripe concept, a limitation on the reduction that the
             convening authority may approve, such that the convening
             authority may only approve reduction to the grade of E-2.

The military judge then calculated the remainder of the credit to be applied to
appellant’s sentence and directed the convening authority to apply that credit at
action.

       The result of trial, the staff judge advocate’s recommendation (SJAR), and the
addendum all fail to inform the convening authority of the full credit adjudicated by
the military judge for the reduction in grade. Consequently, the convening
authority’s action approves the adjudged reduction in grade to E-1 and does not
reflect the military judge’s one grade credit.

                             LAW AND DISCUSSION

       The purpose of sentencing credit pursuant to Pierce, 27 M.J. 367, is to ensure
appellant is not punished twice for the same offense. Pierce mandates complete
credit be given for any and all nonjudicial punishment (NJP) suffered. See Id. at 369
(holding “an accused must be given credit for any and all nonjudicial punishment
suffered: day-for-day, dollar-for-dollar, stripe-for-stripe”). Lawful NJP punishment
is not voided by subsequent charging of the same offense at a court-martial. United
States v. Gammons, 51 M.J. 169, 182 (C.A.A.F. 1999) (“We decline to hold that a



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ALMAGUER—ARMY 20120228

mere difference between commanders in the exercise of discretion transforms a
lawful NJP disposition decision into a void act.”).

       Just as it is well-settled that credit for prior NJP must be given, it is similarly
well-settled that the accused is the gatekeeper regarding if, when, and how prior NJP
for the same offense will be presented, considered, and credited. Id. at 183. More
specifically, in that role as gatekeeper, the accused governs whether Pierce credit
will be calculated and applied by the panel; calculated by the military judge at a
session pursuant to Article 39a, UCMJ, and then applied by the convening authority
at action; or calculated and applied by the convening authority at action. Id. In this
case, it is clear appellant and his counsel decided to have the military judge
calculate any Pierce credit at an Article 39a, UCMJ, session to be applied by the
convening authority.

       We review a military judge’s calculation of sentence credit de novo. United
States v. Fischer, 61 M.J. 415, 418 (C.A.A.F. 2005). Here, the military judge did
not commit error in her calculation of Pierce credit. However, the convening
authority failed to apply the credit ordered by the military judge to appellant’s
sentence at action. See Pierce, 27 M.J. at 369. Accordingly, it is appropriate to
“adjust appellant’s sentence to assure he was not twice punished.” Gammons, 51
M.J. at 184. To ensure appellant receives the full credit awarded by the military
judge, we will return a stripe to appellant. We are confident this affords complete
sentence credit in conjunction with the confinement credit directed by the military
judge and already applied by the convening authority.

                                    CONCLUSION

       On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), the findings of guilty are affirmed. Only so much of
the sentence as provides for a bad-conduct discharge, confinement for twelve
months, and reduction to E-2 is affirmed.


                                         FOR THE COURT: 
                                         FOR  THE COURT:




                                         MALCOLM H. SQUIRES, JR.                          
                                         MALCOLM         H. SQUIRES, JR.
                                         Clerk of Court 
                                         Clerk of Court




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