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

                          UNITED STATES, Appellee
                                       v.
                    Private E1 CHRISTOPHER L. SPEROW
                         United States Army, Appellant

                                  ARMY 20110904

                             Headquarters, Fort Riley
                          Jeffery Nance, Military Judge
           Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA; Captain James P. Curtin, JA (on brief).

For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.


                                 2 November 2012

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


Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of desertion terminated by apprehension, absence without
leave (two specifications), drunken operation of a vehicle, and unlawful underage
consumption of alcoholic liquor, in violation of Articles 85, 86, 111, and 134
Uniform Code of Military Justice, 10 U.S.C. §§ 885, 886, 911, 934 [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and to
be confined for 120 days. 1 The convening authority (CA) approved the adjudged
sentence and credited appellant, without explanation, with eighty-seven days of
confinement credit against the sentence to confinement. The CA waived automatic

1
  The military judge credited appellant with forty-nine days of pretrial confinement
credit and ten days of confinement credit pursuant to United States v. Pierce, 27
M.J. 367, 369 (C.M.A. 1989) in arriving at a total of fifty-nine days of confinement
credit against the sentence to confinement. Further, the military judge recommended
the convening authority waive automatic forfeitures to the maximum extent
allowable and direct these forfeitures be paid to appellant’s spouse.
SPEROW— ARMY 20110904

forfeitures of two-thirds pay per month effective 26 October 2011 until 26 December
2011. This case is before us for review pursuant to Article 66, UCMJ.

                                    DISCUSSION

       The finding of guilty to the Specification of Charge III for drunken operation
of a vehicle cannot stand. Although not raised by appellant, we find the government
improperly assimilated the Kansas statute for underage driving under the influence, 2
as an Article 111, UCMJ, violation. It is permissible under Article 111, UCMJ, to
apply the limit on the alcohol concentration in a person’s blood or breath using the
law of the state where the conduct occurred. Applying Kansas law, the law of the
state where the incident happened, this limit would have been .08. 3

          The government, instead of merely adopting the .08 limit, applied a Kansas
law that prohibits the operation of a vehicle by persons under 21 years of age when
their blood or breath alcohol content is .02 or greater. In so doing, the government
not only added an additional element to an Article 111, UCMJ offense, that appellant
must have been under 21 years of age, but also applied the much lower blood or
breath alcohol content, .02, that, under Kansas law, only applies to persons under 21
years of age. While § 8-1567 makes it clear the criminal standard for driving under
the influence in Kansas is .08, it is unclear whether a violation of the .02 standard
found in § 8-1567a results in anything more than an adverse impact on one’s driving
privileges. 4

       Because we find the charge deficient and will take appropriate action to set it
aside in our decretal paragraph, we will not discuss additional errors that occurred
during the providence inquiry concerning this charge.

       Although, again, not raised by appellant, an issue concerning proper credit
pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) must be addressed.
Pierce credit is granted to a servicemember when he is convicted of an offense for
which he previously received nonjudicial punishment (NJP) under Article 15, UCMJ
[hereinafter Article 15]. An accused who is convicted at court-martial of the same
offense for which NJP previously was imposed may request credit “for any and all
nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for stripe.”
United States v. Bracey, 56 M.J. 387, 388 (C.A.A.F. 2002) (citing Pierce, 27 M.J. at
369). Either the military judge or CA must state on the record the exact credit

2
  Kansas Statutes Annotated (KAN. STAT. ANN.) § 8-1567a [hereinafter § 8-
1567a].
3
  KAN. STAT. ANN. § 8-1567 [hereinafter § 8-1567].
4
  The maximum punishment found in this statute allows for driving privileges to be
suspended for thirty days, followed by having driving privileges restricted for an
additional 330 days (KAN. STAT. ANN. § 8-1567a(f)).


                                           2
SPEROW— ARMY 20110904

awarded for prior NJP. United States v. Gormley, 64 M.J. 617, 620-21 (C.G Ct.
Crim. App 2007).

       As agreed to by both parties and the military judge at trial, appellant is
entitled to Pierce credit for the prior Article 15 he received for unlawful underage
consumption of alcohol and for drunk driving. This is the same misconduct
appellant pleaded guilty to and was found guilty of in the Specification of Charge III
and the Specification of Charge IV. Because appellant went absent without leave
while he was serving his Article 15 punishment and deserted his unit before
completing his Article 15 punishment, he is only entitled to full day-for-day, dollar-
for-dollar credit for the Article 15 punishment he served. 5

       First, it is unclear from the record whether the military judge credited
appellant with the correct number of days, or at the correct rate, for the days
appellant performed extra duty and was restricted. Second, waiver of automatic
forfeitures is for the benefit of dependents and cannot be used as Pierce credit.
Therefore, the CA’s decision to waive automatic forfeitures of two-thirds pay per
month for two months, will be considered an act of clemency and not be used as
Pierce credit to offset pay appellant had forfeited as a result of Article 15
punishment.

       Third, neither the Staff Judge Advocate (SJA) in his recommendation or
addendum, nor the CA clearly stated what Pierce credit, if any, was given to
appellant. Specifically, the manner in which the SJA and CA calculated the eighty-
seven days of confinement credit, and whether a portion of this credit was intended
as Pierce credit, is not clear from the record. Accordingly, we will order a new
recommendation and action.

                                   CONCLUSION

       The findings of guilty of the Specification of Charge III and Charge III are set
aside and dismissed. The remaining findings of guilty are affirmed. The convening
authority’s action, dated 10 February 2012, is set aside. The record of trial is
returned to The Judge Advocate General for submission to the same or a different
convening authority for action based on a new staff judge advocate’s
recommendation and sentence reassessment in accordance with United States v.
Reed, 33 M.J. 98, 99 (C.M.A. 1991) and United States v. Suzuki, 20 M.J. 248, 249
(C.M.A. 1985). The new recommendation and action shall detail how the Pierce
credit was calculated and applied.
       



5
 Appellant’s punishment for the Article 15 was: Forfeiture of $673.00 pay per
month for two months; extra duty for 45 days; restriction for 45 days.


                                           3
SPEROW— ARMY 20110904




                        FOR THE
                        FOR THE COURT:
                                COURT:




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




                          4
