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

                            UNITED STATES, Appellee
                                        v.
                          Private E1 KEVIN M. PEARCE
                          United States Army, Appellant

                                   ARMY 20110107

      Headquarters, United States Army Accessions Command and Fort Knox
                        Timothy Grammel, Military Judge
                 Colonel Robert J. Cotell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Meghan M. Poirier, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major LaJohnne A. White,
JA; Captain Daniel H. Karna, JA (on brief).


                                      16 May 2012

                               --------------------------------
                               SUMMARY DISPOSITON
                               --------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of absence without leave, in violation of
Article 86 of the Uniform Code of Military Justice, 10 U.S.C. § 886 (2008)
[hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge,
confinement for eleven months, and forfeiture of $978.00 pay per month for eleven
months. The convening authority (CA) approved eight months of confinement,
sixty-two days of confinement credit, and the remainder of the adjudged sentence. 
This case is before us court for review pursuant to Article 66, UCMJ.


  We note that the CA inexplicably waived “automatic forfeiture of two-thirds pay
and allowances” for the benefit of appellant’s spouse, yet approved the adjudged
forfeiture of $978.00 pay per month for 11 months, thereby preventing any funds

                                                                   (continued . . .)
PEARCE – ARMY 20110107

        Appellant alleges, and the government concedes, that there is no evidence that
a letter from appellant’s previous company commander, enclosure 8 to appellant’s
Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters, was submitted to the CA
prior to his taking initial action in appellant’s case as is required by R.C.M.
1107(b)(3)(A)(iii) and United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998).
We agree, and will return this case for a new recommendation and action.


                                   CONCLUSION

      The convening authority’s action, dated 16 June 2011, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation and initial action by the same or a different convening
authority in accordance with Article 60(c)-(e), UCMJ.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




(. . . continued)
from being paid to appellant’s spouse. In light of our disposition of this case,
however, we need not address this ambiguity.




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