              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         DANIEL P. POST
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201300189
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 20 March 2013.
Military Judge: LtCol Nicole K. Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine
Logistics Group, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Capt A.L. Evans,
USMC.
For Appellant: CDR Edward V. Hartman, JAGC, USN.
For Appellee: Capt Matthew M. Harris, USMC.

                             25 March 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of possession of
child pornography, in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934. The military judge sentenced
the appellant to confinement for 5 years, reduction to pay grade
E-1, and a dishonorable discharge. Pursuant to a pretrial
agreement (PTA), the convening authority (CA) suspended all
confinement in excess of 30 months and waived imposition of
automatic forfeitures for a period of six months from the date
of his action, provided that the appellant establish and
maintain a dependent’s allotment.1

     On 1 August 2013, the appellant filed with the court a
brief with a single assignment of error. In it he contended
that the Government failed to fulfill its obligation under the
PTA to defer and waive the imposition of automatic forfeitures.
To supplement the record, the appellant filed a motion to attach
(Motion) with this court.2 The appellant’s Motion contained an
affidavit from Master Sergeant (MSgt) RW, USMC, Staff
Noncommissioned Officer in Charge, Marine Military Pay
Operations Section, Defense Finance and Accounting Service
(DFAS). The affidavit from MSgt RW indicates that the appellant
established an allotment on 20 March 2013; however, because the
allotment was not authorized for use with the deferral and
waiver of automatic forfeitures, it was cancelled on 27 March
2013 by personnel assigned to the Installation Personnel
Administration Center (IPAC), Camp Lejeune, North Carolina.
According to MSgt RW, as of the date of his affidavit (30 July
2013), the appellant’s “allotment remains cancelled and no money
appears to have been sent to [the appellant’s] son.” Motion,
Attachment A at 2.

     In his brief, appellate defense counsel indicated that due
to his inquires, the appellant’s “former command has begun
taking steps in order to comply with the original terms of the
[PTA].” Appellant’s Brief of 1 Aug 2013 at 1 n.1.

     Because the appellate defense counsel averred that the
appellant’s former command had begun taking steps to ensure
compliance with the PTA, we ordered the appellate defense
counsel to answer several questions. See NMCCA Order of 18 Nov
2013. The primary purpose of the questions was to ascertain
whether the appellant had established an appropriate allotment
for his son and whether the appellant’s command had taken steps
to comply with the original terms of the PTA.


     In his 2 December 2013 response, the appellate defense
counsel indicated that despite several attempts to establish a
dependent’s allotment, the appellant, working through his chain

1
  The CA also acknowledged that he had deferred imposition of automatic
forfeitures. CA’s Action of 9 May 2013 at 2.
2
    We granted the appellant’s Motion on 12 August 2013.


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of command at his place of confinement, has been unable to
establish an allotment. Appellant’s Answer to NMCCA Order filed
2 Dec 2013. Although not required to do so, we note that the
Government did not offer a response or dispute the accuracy of
the appellant’s responses to our questions.

     After carefully considering the record of trial, the
submissions of the parties, and the appellant’s responses to our
order, we found merit in the appellant’s assignment of error.
In an opinion dated 23 January 2014, we returned the record to
the Judge Advocate General of the Navy for remand to an
appropriate CA. We directed the CA to (1) grant specific
performance by ensuring that the appellant’s son receives the
appropriate amount of funds for the automatic forfeitures that
were ordered deferred and waived pursuant to the PTA; or (2)
provide alternative relief that is satisfactory to the
appellant.

     On 20 February 2014, before the record was returned to the
CA, the Government filed a Consent Motion to Attach and Consent
Motion for Reconsideration. The two motions provided the court
with evidence that the CA had complied with the terms of the
pretrial agreement on 1 January 2014. Both motions were granted
by Court Order on 3 March 2014 and the court’s 23 January 2014
opinion was withdrawn.

     The sole assignment of error now being moot and finding
that no error materially prejudicial to the substantial rights
of the appellant remains, the findings and sentence as approved
by the CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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