UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Specialist CHRISTOPHER D. DELAUGHTER
                          United States Army, Appellant

                                   ARMY 20160134

                             Headquarters, Fort Bliss
                        Michael J. Hargis, Military Judge
             Colonel Charles C. Poche, Staff Judge Advocate (pretrial)
Lieutenant Colonel Casey Z. Thomas, Acting Staff Judge Advocate (recommendation)
           Colonel Charles C. Poche, Staff Judge Advocate (Addendum)


For Appellant: Captain Heather L. Tregle, JA; Captain Joshua G. Grubaugh, JA.

For Appellee: Lieutenant Colonel A.G. Courie III, JA.


                                      14 June 2016

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

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of assault consummated by a battery, in
violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad conduct
discharge, three months confinement, and reduction to the grade of E-1. The
military judge recommended that the convening authority suspend two of the three
months confinement. The convening authority approved the findings and sentence as
adjudged.

        Appellant’s case is before this court for review under Article 66, UCMJ.
Although appellant assigns no errors, our review of the record discloses one issue
which requires us to set aside the convening authority’s action and return this record
of trial for a new staff judge advocate recommendation (SJAR) and initial action
(Action).
DELAUGHTER—ARMY 20160134

                                  BACKGROUND

       Appellant pled guilty to assaulting his wife on three separate occasions.
Testimony on sentencing revealed there was stress in the marriage due in part to the
autistic condition of appellant’s son. Appellant’s wife testified that their son’s
condition was more manageable when the appellant was present in the home. Based
on this testimony the military judge recommended that two months of the sentence to
confinement be suspended. The SJAR properly informed the convening authority of
this recommendation but also contained the following paragraph:

             5. In accordance with the amendments to Article 60,
             UCMJ, implemented by Section 1702 of the National
             Defense Authorization Act of 2014 and R.C.M.
             1107(d)(1)(A) and 1107(d)(1)(B), you may not disapprove,
             commute, or suspend, in whole or in part, any portion of
             an adjudged sentence of confinement for more than six (6)
             months or disapprove, commute, or suspend that portion of
             an adjudged sentence that includes a Dismissal,
             Dishonorable Discharge, or Bad-Conduct Discharge.

      The appellant submitted Rule for Courts-Martial (R.C.M.) 1105 matters (Post-
Trial Matters) in which he requested that two of the three months of confinement be
suspended so he could be present to assist with the care of his autistic son. The
Addendum stated that Post-Trial Matters were attached and that the convening
authority must consider these matters before taking action. It did not specifically
inform the convening authority that the appellant was requesting suspension of two
months confinement. However, the Addendum contained the same paragraph 5
above discussing the amendments to Article 60, UCMJ.

                                   DISCUSSION

       It is not clear to this court why identical paragraph number fives appeared in
the SJAR and Addendum. This is particularly true since the convening authority
was not being asked to take any action that would have run afoul of the recent
amendments to Article 60, UCMJ. We can surmise that this paragraph was most
likely included as “boilerplate” to guard against any action being taken that would
be prohibited by these recent amendments. While this may have been a laudable
goal, its execution in this case was flawed in regards to the advice on confinement.
The addition of this paragraph only adds potential for confusion as the appellant is
requesting suspension of confinement and the convening authority is being advised
that he cannot suspend confinement under certain circumstances. Accordingly, we
cannot be reasonably confident that the convening authority understood that he had
the authority to grant the confinement clemency recommended by the military judge
and requested by the appellant.



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DELAUGHTER—ARMY 20160134

       We take this opportunity to remind staff judge advocates that their post-trial
documents must be tailored to the unique facts of the particular case at issue. No
doubt there is a certain degree of commonality and uniformity in these documents
but the preparation of post-trial advice must not and cannot become a rote exercise.

                                   CONCLUSION

       Therefore, on consideration of the entire record, the convening authority’s
action is set aside. The record of trial is returned to the Judge Advocate General for
remand to an appropriate convening authority for new post-trial processing. The
record shall then be returned to this court for review under Article 66(c), UCMJ.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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