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

                               UNITED STATES, Appellee
                                           v.
                         Staff Sergeant STEPHEN T. COLLIER
                             United States Army, Appellant

                                        ARMY 20120554

              United States Army Maneuver Support Center of Excellence
                                and Fort Leonard Wood
                           Jeffery R. Nance, Military Judge
               Colonel James R. Agar II, Staff Judge Advocate (pretrial)
              Colonel Robert F. Resnick, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Aaron R.
Inkenbrandt (on brief)

For Appellee: Major Robert A. Rodrigues, JA (on brief).

                                         31 March 2014

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of disrespect towards a commissioned
officer; two specifications of disobeying a superior commissioned officer; two
specifications of making a false official statement; one specification of aggravated
assault; six specifications of assault consummated by battery; one specification of
obstructing justice; and one specification of communicating a threat in violation of
Articles 89, 90, 107, 128, and 134 of the Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 889, 890, 907, 928, and 934 (2006). The
convening authority approved the adjudged sentence of a bad -conduct discharge,
confinement for four years, and reduction to the grade of E -1. 1

1
  At trial, the military judge ordered that appellant receive 228 days of confinement
credit. The convening authority’s action failed to include this credit. See Rule for

                                                                                (continued . . .)
COLLIER — ARMY 20120554

       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
Unites States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issues raised by
appellant without merit. We find one additional issue, however, warrants discussion
and relief.

                                  BACKGROUND

       In the Specification of Charge VI, appellant was charged with a violation of
Article 89, UCMJ. The specification alleged:

             In that [appellant], U.S. Army, did at or near the Tigris River,
             Iraq, between on or about 3 November 2009 and or about
             17 November 2009 behave himself with disrespect toward
             [LT JC], his superior commissioned officer, then known
             by the [appellant] to be his superior commissioned officer,
             by arguing with [LT JC] and then throwing the [appellant’s]
             Kevlar Helmet into the Tigris River.

        While deployed to Balad, Iraq, appellant was an assistant section sergeant .
Lieutenant (LT) JC (at the time of trial a Captain), appellant’s platoon leader,
testified and described an occasion where his unit was performing emergency bridge
repairs. Lieutenant JC stated his unit spent several days trying to repair a broken
bridge over the Tigris River. One evening, while they were working at the bridge
site, at around two or three in the morning, LT JC decided it was late and it was time
to leave. The appellant asked LT JC for 10-15 more minutes to finish what he was
working on. LT JC gave him 10 extra minutes. When LT JC returned 10 minutes
later and told appellant it was time to depart, appellant burst into anger and yelled
“am I the only person here who wants to work?” Appellant then, out of frustration,
threw his own Kevlar helmet into the Tigris River. It was not recovered.

      At trial, the defense counsel questioned LT JC o n cross examination:



(. . . contined)
Courts-Martial 1107(f)(4)(F); Army Reg. 27-10, Legal Services: Military Justice,
para. 5-32 (3 Oct. 2011) (requiring a convening authority to “show in [the] initial
action all credits against a sentence to confinement . . . regardless of the source of
the credit . . . or for any . . . reason specified by the judge”); United States v.
Delvalle, 55 M.J. 648, 649 n.1, 656 (Army Ct. Crim. App. 2001); United States v.
Arab, 55 M.J. 508, 510 n.2, 520 (Army Ct. Crim. App. 2001). The DA 4430 (Result
of Trial) reflects this credit. Accordingly, to the extent appellant has not already
received this credit, appellant will be credited with 228 days of confinement credit.



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COLLIER — ARMY 20120554

             DC: So, [appellant] was upset because he couldn’t finish the mission,
             right?

             LT: Correct.

             DC: So, his frustration was not directed to you, was it?

             LT: No, not directly.

             DC: So, you didn’t feel disrespected, did you?

             LT: I would say that I would not speak that way to my superior.
             I wouldn’t expect him to speak that way towards me.

             DC: Did you give him a counseling statement?

             LT: No.

             DC: Did a senior NCO counsel him?

             LT: There was a verbal counseling by my platoon sergeant.

             DC: Isn’t it true that you put [appellant] up for a Bronze Star?

             LT: I did.

             DC: Isn’t it true that he received that Bronze Star?

             LT: He did.

             DC: And if you felt disrespected in any way, you probably
             wouldn’t [have] put him up for that Bronze Star, would you?

             LT: Correct.

                                 DISCUSSION

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). Under Article 66(c), we may affirm only those findings of guilty
that we find correct in law and fact and determine, based on the entire record, should
be affirmed. The test for legal sufficiency of the evidence is whether, viewing the
evidence in a light most favorable to the government, a fact -finder could rationally
have found all the essential elements of an offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 3019 (1979); United States v. Blocker, 32 M.J.


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COLLIER — ARMY 20120554

281, 284 (C.M.A.1991). The test for factual sufficiency is whether, after weighing
the evidence in the record of trial and making allowances for not having personally
observed the witnesses, this Court is convinced of the appellant's guilt beyond a
reasonable doubt. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002);
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

      The elements of disrespect toward a superior commissioned officer , Article
89, UCMJ, are as follows:

             (1) That the accused did or omitted certain acts or used
             certain language to or concerning a certain commissioned
             officer;

             (2) That such behavior or language was directed toward that
             officer;

             (3) That the officer toward whom the acts, omissions, or
             words were directed was the superior commissioned officer
             of the accused;

             (4) That the accused then knew that the commissioned
             officer toward whom the acts, omissions, or words were
             directed was the accused’s superior commissioned officer;
             and

             (5) That, under the circumstances, the behavior or language
             was disrespectful to that commissioned officer.

Manual for Courts–Martial, United States (2012 ed.), pt. IV, ¶13b.

       The Court of Appeals for the Armed Forces ( CAAF) has generally held all
circumstances of a case can be considered in determining whether disrespectful
behavior in violation of Article 89, UCMJ, has occurred. See United States v. Goins,
15 U.S.C.M.A. 175, 177, 35 C.M.R. 147, 149 (1964). In United States v. Whitaker,
5 C.M.R. 539 (A.F.B.R. 1952), for example, the court held that language is not
actionable, even where it is clearly offensive, if it is addressed to the world at large,
rather than to the person alleged. In Whitaker, the accused was charged with saying
“to hell with it”, signaling his refusal to complete the paperwork necessary to begin
a move to a new duty station. The Board stated they were not convinced the words
showed “the accused was disrespectful toward [the named individual] .” 5 C.M.R. at
556.
       In this case, the government asserted appellant’s acts of disrespect comprised
his arguing with LT JC and his throwing of the kevlar helmet into the Tigris River.
The primary evidence offered at trial in support of this charge was the testimony of


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COLLIER — ARMY 20120554

LT JC. 2 When LT JC was asked at trial whether appellant’s frustration was directed
at him, LT JC stated “no, not directly.” LT JC’s testimony, therefore, raises a
reasonable doubt as to the requirement that the language or act be directed at the
officer. LT JC also specifically agreed with defense counsel’s statement that if he
“felt disrespected in any way, [he] probably wouldn’t [have] put him up for that
bronze star.” By his own testimony, LT JC was not the victim or target of
appellant’s allegedly disrespectful behavior. We, therefore, find the evidence
factually insufficient to establish beyond a reasonable doubt that appellant was
disrespectful toward a superior commissioned officer in violation of Article 89,
UCMJ. 3
                                   CONCLUSION

       On consideration of the entire record and the error noted, the findings of
guilty of the Specification of Charge VI and Charge VI are set aside and that
Specification and Charge are dismissed.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of the circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Our dismissal of the specification of Charge VI and its Specification only
reduces the maximum punishment from thirty-one years to thirty years of
confinement. Second, appellant was tried and sentenced by a military judge. Third,
the gravamen of the appellant’s conduct is the assaultive behavior towards his wife
on multiple occasions, the assault of his son, and the willful disobedience of a
superior commissioned officer. Appellant remains convicted of serious offenses

2
  The only other evidence supporting an Article 89 violation is an audio recording
made by appellant’s wife of her conversation with appellant wherein he mentioned,
“I have had instances where I would throw my Kevlar across the bridge into the
river….” He does not specify details about the incident such as whether others were
present.
3
  We note our conclusion would not necessarily be the same had the facts born e out
that others had been present when the appellant behaved in the manner described by
LT JC. In other words, we do not address a scenario in which others witness
objectively disrespectful behavior towards a superior, even though that superior may
not subjectively feel disrespected.



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COLLIER — ARMY 20120554

committed upon a backdrop of extremely aggravating circumstances. Finally, based
on our experience, we are familiar with the remaining offenses so that we may
reliably determine what sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, the sentence is
AFFIRMED. We find this sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings and sentence set aside by this
decision, are ordered restored.

      Senior Judge COOK and Judge HAIGHT concur.

                                        FOR
                                        FOR THE COURT:
                                            THE COURT:



                                         ANTHONY O. POTTINGER
                                        Chief Deputy O.
                                        ANTHONY      Clerk of Court
                                                        POTTINGER




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