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

                           UNITED STATES, Appellee
                                       v.
                 Private First Class ESGAR RUIZFERNANDEZ
                         United States Army, Appellant

                                   ARMY 20140358

                            Headquarters, Fort Stewart
                        John T. Rothwell, Military Judge
   Colonel Francisco A. Vila, Staff Judge Advocate (pretrial & recommendation)
        Lieutenant Colonel Peter R. Hayden, Acting Staff Judge Advocate
                     (addendum & supplemental addendum)


For Appellant: Major Amy E. Nieman, JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Major Daniel D. Derner, JA (on brief).


                                  24 November 2014

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of one specification of absence without leave for more than 30
days and terminated by apprehension, in violation of Article 86, Uniform Code of
Military Justice, 10 U.S.C. § 886 [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, to be confined for 60 days, and to be reduced
to the grade of E-1. The convening authority (CA) approved the adjudged sentence
and granted 19 days of confinement credit.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court, and personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the issues appellant
personally raised, the CA’s failure to take action on appellant’s request for
deferment of automatic forfeitures, merits discussion and relief in the form of a new
RUIZFERNANDEZ—ARMY 20140358

recommendation and action. None of the remaining matters personally raised by
appellant warrant discussion or relief.

                                        FACTS

       As part of the post-trial process, appellant’s trial defense counsel, Captain M,
submitted a timely request for deferment and waiver of automatic forfeitures on
appellant’s behalf. The Acting Staff Judge Advocate recommended the CA
disapprove the request for deferment but approve the request for waiver. The CA
approved the waiver request for a one-month period, but failed to take action in
regards to the deferment request. The Staff Judge Advocate (SJA), in his post-trial
recommendation, noted that the CA had approved a one-month waiver of forfeitures,
but had “not take[n] action on [appellant’s] request for deferment of automatic
forfeitures.”

        The acting SJA, in his addendum to the recommendation, failed to identify
this issue. In his initial action, the CA failed to act on appellant’s deferment request
and also failed to note his earlier approval of the waiver request. The acting SJA, in
a supplemental addendum to the recommendation, recommended the new CA
withdraw the “initial Action” and substitute an action that noted the prior CA’s
decision to waive forfeitures. Nonetheless, no mention is made of appellant’s
deferment request in this supplemental addendum. The new CA’s subsequent action
was apparently created to address the omitted reference to the approved waiver, but
the record still lacks CA action in regards to appellant’s deferment request.

                                    DISCUSSION

        Rule for Courts-Martial [hereinafter R.C.M.] 1101(c)(3) states in pertinent
part:

              Action on deferment request. The authority acting on a
              deferment request may, in that authority’s discretion,
              defer service of a sentence to confinement, forfeitures,
              or reduction in grade. . . . . The decision of the authority
              acting on the deferment request shall be subject to judicial
              review only for abuse of discretion. The action of the
              authority acting on the deferment request shall be in
              writing and a copy shall be provided to the accused.


       In this case, the CA inexplicably failed to take action on appellant’s
deferment request. The CA failed to take action although the Acting SJA presented
the CA with a recommendation in response to the deferment request and an action to
effectuate the CA’s decision was presented to the CA. The CA’s failure to act is



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RUIZFERNANDEZ—ARMY 20140358

captured not only on the incomplete deferment action, but also on the SJA
recommendation.

       Pursuant to R.C.M. 1101(c)(3), while the decision to grant or deny appellant’s
deferment request is clearly within the discretion of the CA, we find the CA abused
his discretion by declining to take action on appellant’s request.

                                  CONCLUSION

       The CA’s action, dated 9 September 2014, is set aside. The record of trial is
returned to The Judge Advocate General for a new SJA recommendation and a new
action by the same or a different convening authority in accordance with Article 60,
UCMJ. This remedy will afford appellant an additional opportunity for the CA to
act on his request for deferment of automatic forfeitures.

                                       FOR THE COURT:




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




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