UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           BURTON, CELTNIEKS, and HAGLER
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                         Staff Sergeant ERIC A. SPITALE
                          United States Army, Appellant

                                   ARMY 20170128

                  Headquarters, 21st Theater Sustainment Command
                         David H. Robertson, Military Judge
             Colonel Paula I. Schasberger, Staff Judge Advocate (pretrial)
    Lieutenant Colonel Michael P. Baileys, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Joshua B. Fix, JA; Captain Heather M. Martin, JA.

For Appellee: Lieutenant Colonel Eric K. Stafford, JA.


                                   14 February 2018

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failing to obey a lawful general regulation and making a
false official statement, in violation of Articles 92 and 107, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 907 (2012). Contrary to his pleas, appellant was
also found guilty of indecent conduct, in violation of Article 134, UCMJ. The
military judge sentenced appellant to a bad-conduct discharge, confinement for four
months, and reduction to the grade of E-3. The convening authority approved the
adjudged sentence.

       The case is before this court for review under Article 66, UCMJ. Our review
reveals an error in the convening authority’s action that deprived appellant of the
opportunity for meaningful post-trial relief. 1 Appellant’s clemency submission

1
 Appellant personally asserts several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). As this case will be returned to The Judge Advocate
General on separate grounds, we do not address appellant’s Grostefon matters.
SPITALE—ARMY 20170128

specifically asked the convening authority to disapprove the adjudged bad-conduct
discharge. In a memorandum approving the staff judge advocate’s recommendation,
the convening authority stated, “I have considered specifically the accused’s request
to disapprove the bad-conduct discharge. [In accordance with] R.C.M. 1107(d)(1) I
do not have the authority to approve the requested clemency.” This statement was
erroneous.

                              LAW AND DISCUSSION

       Section 1702 of the National Defense Authorization Act for Fiscal Year 2014
amended Article 60, UCMJ, limiting a convening authority’s previous clemency
powers. See Pub. L. No. 113-66, § 1702(b), 127 Stat. 672, 955-58 (2013). Rule for
Courts-Martial [hereinafter R.C.M.] 1107(d) was revised to implement these
statutory changes. However, the revised versions of R.C.M. 1107 do not apply in
cases that include an offense committed before 24 June 2014. 2

      Appellant was convicted of Charges I and III for failing to obey a lawful
general regulation and indecent conduct “on divers occasions, between on or about
3 October 2013 and on or about 17 October 2014 . . . .” 3 Thus, the convening
authority’s clemency powers in this case were not affected by the revisions to
R.C.M. 1107. Under the prior versions of Article 60, UCMJ, and R.C.M. 1107,
which applied to appellant’s case, the convening authority did have the power to
disapprove some or all of the findings or sentence, to include the bad-conduct
discharge. See R.C.M. 1107(c), (d)(1) (2012 ed.).

       The staff judge advocate’s recommendation did not mention Article 60,
UCMJ, or R.C.M. 1107, so appellant had no way of knowing the convening authority
misunderstood the reach of his clemency powers. Thus, appellant did not waive or
forfeit this error. See R.C.M. 1106(f)(6) (2016 ed.). We will not speculate whether
the convening authority would have granted relief had he known the full range of
options legally available to him in assessing appellant’s clemency request.




2
 See R.C.M. 1107 note (2016 ed.) (“[I]f at least one offense resulting in a finding of
guilty . . . occurred prior to 24 June 2014, or includes a date range where the earliest
date in the range for that offense is before 24 June 2014, then the prior version of
R.C.M. 1107 applies to all offenses in the case . . . .”).
3
 Appellant’s conviction in Charge II for a false official statement on or about
2 August 2016 is not relevant to our disposition of this case.

                                           2
SPITALE—ARMY 20170128

                                  CONCLUSION

        The convening authority’s action, dated 23 May 2017, is set aside. The record
of trial will be returned to The Judge Advocate General for a new action by the same
or a different convening authority in accordance with Article 60(c)-(e), UCMJ.

                                          FORTHE
                                         FOR  THECOURT:
                                                  COURT:




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




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