UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                      WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                    Specialist WINSTON M. GRAINGER, JR.
                         United States Army, Appellant

                                  ARMY 20170122

                      Headquarters, III Corps and Fort Hood
                          G. Bret Batdorff, Military Judge
              Lieutenant Colonel Scott E. Linger,Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Julie L. Borchers, JA; Captain
Steven J. Dray, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Major Hannah E. Kaufman, JA;
Captain Marc B. Sawyer, JA (on brief).

                                   22 August 2018
                              --------------------------------
                              SUMMARY DISPOSITION
                              --------------------------------

Per Curiam:

      Specialist Winston M. Grainger, Jr. pleaded guilty to raping, threatening, and
performing a lewd act on a five-year-old boy. His case is now before us for review
under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 [UCMJ].
Appellant’s sole assignment of error raises whether his court-martial sentence will
run concurrently or consecutively with his sentence from federal civilian court.

                                  BACKGROUND

                                          Facts

       On at least ten separate occasions between October 2013 and January 2014
appellant babysat a five-year-old boy whose mother worked nights. While entrusted
with the boy’s care, appellant repeatedly raped the young child by putting his penis
in the boy’s mouth and penetrating the boy’s anus with his finger and penis.

      Appellant video-recorded his crimes.
GRAINGER—ARMY 20170122

      In one video the child is crying as appellant says, “Put it back in your mouth
and suck, come one, or I’m starting the whole five minutes over again.”

      In a second video, the child is bent over a couch and is crying. Appellant tells
the boy, “Stop fucking moving.” As appellant thrusts his penis into the child’s anus,
the boy cries, “My mommy is going to be so mad at me.”

      There are eight more videos.

      A police investigation also discovered that appellant downloaded 3,588 files
containing child pornography.

                                  Procedural History

       As a result of appellant’s crimes, two separate criminal actions took place.
Appellant pled guilty in the United States District Court, Western District of Texas
(Waco Division) to production of child pornography, a violation of 18 USC § 2251.
District Judge Phillip Martinez sentenced appellant to thirty years’ confinement.
Separately, and subsequently, appellant was court-martialed at Fort Hood, Texas.
The government alleged four specifications of child rape, one specification of lewd
acts on a child, and one specification of communicating a threat. Appellant pleaded
guilty to all charges and specifications.

       At the court-martial, the parties appeared to believe that the court-martial
sentence would run consecutively with appellant’s federal civilian sentence. 1 For
example, both parties agreed that the accused would receive zero confinement credit
for the portion of his federal sentence he had already served at the time of his court-
martial. The defense counsel, in asking for a lenient sentence, asked the judge to
consider that the sentence adjudged by the court-martial “will be in addition to the
30 years of confinement that he will serve in federal prison.” 2 The clemency
petition to the convening authority asked for mercy given that “[i]n total, SPC
Grainger is sentenced to sixty years confinement.” However, a specific
understanding as to whether the sentences would run concurrently or consecutively
was not incorporated into the pretrial agreement.


1
  This view may have been consistent with Department of Defense (DoD) regulation.
“A sentence to confinement adjudged by a court-martial shall not be served
concurrently with any other sentence to confinement adjudged by a court-martial or
a civil court.” Dep’t of Def. 1325.7-M, DoD Sentence Computation Manual para.
C2.7.1 (27 July 2004).
2
 The government does not claim that appellant waived the issue of concurrent
sentences at trial. We assume without deciding that waiver does not apply.



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GRAINGER—ARMY 20170122

       The military judge sentenced appellant to a dishonorable discharge,
confinement for life, forfeiture of all pay and allowances, and a reduction to the
grade of E-1. Pursuant to a pretrial agreement with appellant, the convening
authority approved only so much of the sentence to confinement as extended to
thirty years’ confinement and approved the remainder of the sentence as adjudged.
The convening authority did not order that any part of the sentence be deferred.
However, the accused was issued permanent change of station (PCS) orders
assigning appellant to the United States Disciplinary Barracks at Fort Leavenworth,
Kansas “on or about 2047.”

      Appellant’s brief notes that the year 2047 would be the approximate year in
which appellant would have completed his thirty-year federal sentence.

                                     ANALYSIS

        After appellant’s court-martial concluded, and after the convening authority
took initial action on appellant’s findings and sentence, our superior court decided.
United States v. Mooney, 77 M.J. 252 (C.A.A.F. 2018). In Mooney, the Court of
Appeals for the Armed Forces (CAAF) considered whether a convening authority
could direct the deferment of a court-martial sentence so that it runs consecutively
with another sentence. Interpreting Article 57a, the CAAF held that while
convening authorities have the power determine that a court-martial sentence should
run consecutively with a sentence issued by a state or foreign government, no such
similar authority exists when it is a federal court that has ordered the other sentence.
Id. at 257. Thus, in cases such as this one, no military authority has the power to
make a court-martial sentence run consecutively—as opposed to concurrently—with
a pre-existing sentence to confinement by a federal civilian court. 3



3
 In a footnote the CAAF noted that “[i]t is not altogether clear why” this statutory
arrangement exists. One possible explanation, is that Congress determined that an
Article III judge (and not the military) should decide whether a court-martial
sentence and a federal court sentence should run concurrently or consecutively.
That is, by stripping military convening authorities of the ability to defer a court-
martial sentence when it is being served concurrently with a federal sentence, the
question is therefore left to the federal sentencing authority. If so, this arrangement
may further comity between our two systems. Assuming this explanation is correct,
and Congress intended to reserve to the federal judiciary the question of whether a
court-martial sentence and a federal sentence should run concurrently or
consecutively, the Clerk of Court is directed to forward a copy of this opinion to the
United States District Court, Western District of Texas (Waco Division), for
whatever action District Judge Martinez may deem appropriate. We offer no opinion

                                                                        (continued . . .)


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GRAINGER—ARMY 20170122

       The parties do not disagree that Mooney is controlling. Rather, they disagree
as to whether there is any error for this court to correct. Appellant argues that the
PCS orders indicate that the Army has deemed appellant’s sentence to be tolled until
the completion of his federal sentence. The government responds that the convening
authority did not order appellant’s sentence to be deferred, the action taken by the
convening authority is correct, and therefore no remedial action is necessary by this
court.

       We agree with the government that the convening authority’s action is correct,
and that therefore there is no error for this court to address. To the extent the PCS
orders are erroneous, in that they seem to imply that the court-martial sentence is
deferred, we will not attempt to speculatively correct a PCS order that has an
effective date twenty-nine or so years in the future.

       We do, however, understand appellant’s concern. The military justice system
has generous parole and “good time” credits 4 for prisoners serving a court-martial
sentence. Absent a change in the law or action by an authority empowered to order
appellant’s civilian sentence to run consecutively with his military sentence, it is
likely that appellant will complete his court-martial sentence before finishing his
federal civilian sentence. The PCS orders, however, appear to anticipate that he will
instead be required to report to the Disciplinary Barracks when his federal civilian
sentence is complete. To the extent appellant seeks clarity on the running of his
sentence, the UCMJ provides: Unless “suspended or deferred,” a court-martial
sentence to confinement begins to run on the day it is announced. Article 57(b),
UCMJ. Appellant’s court-martial sentence was announced on 1 March 2017 and has
not been deferred. Accordingly, appellant’s court-martial sentence began to run on
1 March 2017.




(. . . continued)
as to whether the District Court has the authority to determine whether the two
sentences should run concurrently or consecutively, or if so what action that court
should take.
4
 See Army Reg. 633-30, Military Sentences to Confinement, para. 13(e) (2 Dec.
2015) (providing that for sentences of ten years or more, inmates receive ten days’
“good conduct time” for each month of good conduct while in confinement).



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GRAINGER—ARMY 20170122

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

                                  FOR THE COURT:



                                  JOHN P. TAITT
                                  Chief Deputy
                                  JOHN         Clerk of Court
                                         P. TAITT




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