UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             BURTON, HAGLER, and FLEMING
                                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


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Lieutenant Colonel Todd
W. Simpson, JA; Captain Heather M. Martin, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Marc B. Sawyer, JA (on brief).


                                          20 May 2019

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                    SUMMARY DISPOSITION ON FURTHER REVIEW
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HAGLER, Judge:

       In this, our third review of appellant’s case, we affirm the findings of guilty
and the sentence. 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 and 907 (2012) [UCMJ]. Contrary to his pleas,
appellant was also found guilty of committing indecent conduct in violation of
Article 134, UCMJ, but the military judge conditionally dismissed this offense as an
unreasonable multiplication of charges with the Article 92 offense. 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 and waived automatic forfeitures. We review the case under Article 66,
UCMJ.
SPITALE—ARMY 20170128

                                  BACKGROUND

       Appellant was a 39-year-old noncommissioned officer stationed in Korea, who
regularly socialized with a junior soldier he directly supervised, Specialist (SPC) P.
Appellant went to bars with SPC P, invited him to appellant’s off-post residence,
and eventually involved SPC P in sexual activities with appellant and appellant’s
wife. These activities, which appellant recorded on video, gave rise to the charges
in this case. Appellant pleaded guilty to having a relationship with SPC P prohibited
by Army Regulation 600-20, Personnel-General: Army Command Policy (18 Mar.
2008) (Rapid Action Revision, 20 Sept. 2012) [hereinafter AR 600-20], and to lying
to a military law enforcement agent when asked whether he had shared the sex
videos with other people. Appellant pleaded not guilty to indecent conduct by
engaging in sexual acts in the presence of SPC P, but he was found guilty of this
specification by the military judge. 1

        The appellate history of this case warrants brief discussion. On two previous
occasions, we set aside the convening authority’s action and returned the record of
trial for new action by the same or a different convening authority in accordance
with Article 60(c)-(e), UCMJ. On our first review of this case, appellant’s counsel
assigned no errors, and we declined to address appellant’s matters submitted
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), as we identified
a separate basis to set aside the convening authority’s action. 2 On our second
review, appellant alleged the new convening authority failed to give him an
opportunity to present additional matters under Rule for Courts-Martial (R.C.M.)
1105. We concurred and set aside the second action, while also noting several
defects in the Report of Result of Trial (DD Form 2707-1) and alleged omissions
from the record of trial raised in appellant’s Grostefon submission. 3 Appellant now
requests relief under Article 66, UCMJ, for dilatory post-trial processing and again
personally raises Grostefon matters.




1
 After findings and before sentencing, the military judge found this specification to
be an unreasonable multiplication of charges, as it was wholly encompassed by the
conduct alleged in the Article 92 violation. The military judge granted a conditional
dismissal of the specification, to take effect if the Article 92 charge and its
specification survived appellate review.
2
 United States v. Spitale, ARMY 20170128, 2018 CCA LEXIS 74 (Army Ct. Crim.
App. 14 Feb. 2018) (summ. disp.).
3
 United States v. Spitale, ARMY 20170128, 2018 CCA LEXIS 426 (Army Ct. Crim.
App. 16 Aug. 2018) (summ. disp.).


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SPITALE—ARMY 20170128

                              LAW AND DISCUSSION

                           Dilatory Post-Trial Processing

       We recognize the protracted nature of the post-trial process in this case. That
said, a considerable amount of this time was consumed by the appeals process,
specifically, three reviews by this court resulting in two separate returns of the case
for a new action by the convening authority. Our previous reviews found errors in
the convening authorities’ actions, but we found no substantive error in appellant’s
trial. We now conclude his convictions were correct in law and fact, and his
sentence was appropriate. Although appellant is not to blame for the length of the
process, in the end he was able to obtain a full and fair consideration of his case by
the convening authority and this court. Thus, we are not convinced appellant was
prejudiced in any meaningful way by the delays in the post-trial process.

        This is not to say that any excessive post-trial delay is cured by an ultimate
affirmation on appeal. In this case, however, it is difficult to ascertain any harm
from the extended appellate process. While acknowledging our authority to grant
relief in this case without a showing of prejudice, we are not compelled to do so
here, as we find appellant’s sentence was appropriate, even in light of the post-trial
delay.

                            Appellant’s Grostefon Matters

        On each appeal to this court, appellant submitted Grostefon matters. Of note,
these matters included issues with the accuracy and completeness of the DD Form
2707-1 and the record of trial. We find the government took corrective action to
address these alleged issues, and our examination of the record reveals that the
convening authority was able to consider all the materials appellant submitted
pursuant to R.C.M. 1105, along with an accurate DD Form 2707-1 and a complete
record of trial. 4 All three of appellant’s Grostefon submissions were similar, but
with a few notable variations. Among these, appellant’s second submission alleged
post-trial delay (a claim taken up by his counsel on the third appeal), while his third
submission added that his sentence was inappropriately severe and that SPC P
testified improperly as a victim of the Article 92 violation. We have examined these
claims and the remainder of appellant’s Grostefon matters and find them to be
without merit.




4
  As noted in our previous opinion, many of the documents purportedly missing from
the record of trial were actually contained therein or were properly redacted from
prosecution exhibits at the request of trial defense counsel. Spitale, 2018 CCA
LEXIS 426 at *6 n.6.


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SPITALE—ARMY 20170128

                                 CONCLUSION

        The findings and sentence are AFFIRMED. Specification 1 of Charge III
will be DISMISSED upon Specification 1 of Charge I surviving “final judgment” of
the proceedings. See UCMJ, art. 71(c)(1) (defining “final judgment”).

      Senior Judge BURTON and Judge FLEMING concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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