UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                    Private First Class TIMOTHY A. WILSON
                          United States Army, Appellant

                                   ARMY 20120045

              Headquarters, U.S. Army Cadet Command and Fort Knox
                        Timothy Grammel, Military Judge
                  Colonel Robert J. Cotell, Staff Judge Advocate


For Appellant: Captain Kristin B. McGrory, JA; Captain Aaron R. Inkenbrandt, JA
(on brief).

For Appellee: Captain Campbell Warner, JA (on brief).


                                  29 November 2012

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                               SUMMARY DISPOSITION
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KRAUSS, Judge:

      A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his plea, of one specification of absenting himself from his unit from on
or about 28 July 2011 until on or about 22 September 2011, in violation of Article
86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ].
The convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for forty-five days, and reduction to the grade of E-1.

        This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits and raised matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We find that one of appellant’s Grostefon
matters warrants partial relief and we also conclude that imposition of a bad-conduct
discharge is inappropriately severe under the circumstances; therefore, we will direct
relief in our decretal paragraph. The nature of the offense in this case, the
circumstances surrounding same, appellant’s plea of guilty, and the lack of any prior
WILSON—ARMY 20120045

misconduct, warrant disapproval of the punitive discharge. See generally United
States v. Roukis, 60 M.J. 925, 931 (Army Ct. Crim. App. 2005).

       Here appellant stands convicted of a fifty-six-day absence without leave
(AWOL) prompted by a disintegrating domestic situation that culminated with an
attempted suicide and hospitalization for several days for treatment of depression.
Appellant’s initial absence from his unit in Afghanistan was authorized. Upon
receipt of a legitimate Red Cross message beckoning his presence in the United
States, in late June 2011, appellant returned home on emergency leave to address a
child care problem. Because appellant’s wife was abusing drugs, child protective
services removed their three-month old daughter from her care and placed the child
with a non-family member who could no longer take care of the child. As appellant
attempted to cope with the difficulty of his wife and establish a family care plan, he
suffered the additional discovery that he was not the father of the child concerned.
Unable to effectively absorb this blow, his mental health rapidly deteriorated and in
this state he failed to return to his unit.

        Some thirty-five days into his AWOL, appellant, adrift and continuing to
suffer a deteriorating mental state, walked into a local sheriff’s office on 1
September 2011, handed the receptionist a suicide note, and immediately slit his
wrist along his arm. The local authorities admitted appellant into a civilian mental
health clinic. Upon hospitalization, the mental health staff contacted the Army
Hospital at Fort Hood, advised Army hospital authorities there that appellant was
AWOL and requested transfer of the patient to Fort Hood. Fort Hood responded that
there was no room for appellant and requested that he be hospitalized as close to
Fort Hood as possible. He remained at the civilian hospital diagnosed as suffering
from major depressive disorder with psychotic features and was released eight days
later. * After his release, appellant attended follow-up mental health appointments
with a civilian provider, disposed of his mother’s remains (the record offers no
further explanation), and hired an attorney to begin divorce proceedings with his
wife. Appellant then voluntarily returned to Fort Knox on 22 September 2011.

      The government’s case in aggravation consisted of the circumstance of
absence from Afghanistan and testimony to the effect that his absence further
reduced an undermanned unit by one. Despite this fact, the record rather

*
  We agree with appellant that Defense Exhibit A created a sufficient inconsistency
with appellant’s plea of being absent without leave between 1-8 September 2011.
The military judge failed to resolve this apparent inconsistency, which warrants
disapproval of that part of judge’s finding in our decretal paragraph. See United
States v. Scott, 59 M.J. 718, 722–23 (Army Ct. Crim. App. 2004) (recognizing that
the court can “divide one longer period of absence in an AWOL specification into
two or more separate, shorter AWOLs under that same single specification.”).
Inconsistency or no, we consider the bad-conduct discharge inappropriately severe.


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WILSON—ARMY 20120045

convincingly establishes the potential harm and folly of returning appellant to
Afghanistan in his diagnosed condition.

       There is no evidence of any prior misconduct and no evidence that appellant
otherwise shirked duty. To the contrary, appellant earned the combat infantry badge
early during his unit’s deployment and appellant’s fellow infantrymen verified that
appellant never hesitated to engage the enemy when needed.

       In light of his plea, the relative brevity of his absence, the extenuating and
mitigating circumstances of that absence, and the lack of any prior misconduct,
Article 66, UCMJ, permits and justice warrants disapproval of the bad-conduct
discharge. See United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988); United
States v. Snelling, 14 M.J. 267, 268 (1982); Roukis, 60 M.J. at 931; United States v.
Bauerbach, 55 M.J. 501, 504–06 (Army Ct. Crim. App. 2001).

       After considering the entire record, the court affirms only so much of the
finding of guilty of the Specification of The Charge as finds that appellant did, on or
about 28 July 2011, without authority, absent himself from his unit, to wit: Alpha
Company, 2d Battalion, 2d Infantry Regiment located at COP Bande Sardeh,
Afghanistan, and did remain so absent until on or about 1 September 2011; and that
appellant did, on or about 9 September 2011, without authority, absent himself from
his unit, to wit: Alpha Company, 2d Battalion, 2d Infantry Regiment located at COP
Bande Sardeh, Afghanistan, and did remain so absent until on or about 22 September
2011, in violation of Article 86, UCMJ.

       Reassessing the sentence on the basis of the error noted, the entire record, our
finding that a punitive discharge is inappropriately severe under the circumstances,
and in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the court
affirms only so much of the sentence as provides for confinement for forty-five days
and reduction to the grade of E-1. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of his sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Judge BURTON concurs.

YOB, Senior Judge, dissenting:

       I respectfully disagree with my colleagues and conclude that appellant’s
adjudged and approved sentence is correct in law and fact under Article 66(c),
UCMJ. Appellant negotiated a plea agreement with the convening authority that
limited the length of his sentence to confinement, but put no limitation on the
convening authority’s ability to approve an adjudged punitive discharge.



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WILSON—ARMY 20120045

       Appellant’s sentence should be approved by this court on the basis of the
entire record, including aggravating evidence presented at trial that appellant
decided to go AWOL at a time when his place of duty was with his fellow soldiers
who were deployed in Afghanistan conducting hazardous duties. Aggravating
evidence also revealed that at the time appellant chose to go AWOL, his unit was
burdened with fulfilling their mission while suffering a significant shortage of
personnel. In addition, general deterrence is a recognized factor in fashioning
appropriate sentences in the military and considerations of general deterrence
particularly apply in this case. See United States v. Fisher, 67 M.J. 617, 621 n.3
(Army Ct. Crim. App. 2009) (noting that “general deterrence of those who know of
the wrongdoer’s crime and the wrongdoer’s sentence, from committing the same or
similar offenses,” is a proper consideration for the sentencing and convening
authority).

      As such, I would approve the sentence as adjudged by the sentencing
authority and approved by the convening authority.


                                      FOR THE
                                      FOR THE COURT:
                                              COURT:



                                      JOANNE P. TETREAULT ELDRIDGE
                                      Deputy
                                      JOANNE Clerk P.
                                                   of Court
                                                       TETREAULT E




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