          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201700052
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                      HENRY E. DREYFUS, JR.
          Operations Specialist First Class (E-6), U.S. Navy
                              Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Commander R. P. Monahan, Jr., JAGC, USN.
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                           Norfolk, VA.
   Staff Judge Advocate’s Recommendation: Commander Irve C.
                      Lemoyne, JAGC, USN.
For Appellant: Lieutenant Commander Jeremy J. Wall, JAGC, USN.
     For Appellee: Commander James E. Carsten, JAGC, USN;
                   Major Kelli A. O’Neil, USMC.
                     _________________________

                        Decided 21 November 2017
                         _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                         _________________________

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:
   At a general court-martial, a military judge convicted the appellant,
pursuant to his pleas, of two specifications of making false official statements
and two specifications of larceny in violation of Articles 107 and 121, Uniform
                       United States v. Dreyfus, No. 201700052


Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 921.1 A general court-
martial composed of officer and enlisted members then convicted the
appellant, contrary to his pleas, of making a false official statement,
committing fraud against the United States, and obstructing justice in
violation of Articles 107, 132, and 134, UCMJ, 10 U.S.C. §§ 907, 932, and 934.
The appellant was sentenced to a bad-conduct discharge, confinement for one
year, reduction to pay grade E-1, and a $20,000.00 fine. The convening
authority (CA) approved the sentence as adjudged and, except for the bad-
conduct discharge, ordered the sentence executed.
    In his sole assignment of error, the appellant asserts that the court-
martial promulgating order does not accurately reflect his pleas or the
findings and disposition of all offenses upon which he was arraigned. We
agree, and order corrective action in our decretal paragraph. The findings
and sentence are otherwise correct in law and fact, and no error materially
prejudicial to the substantial rights of the appellant occurred. Arts. 59(a) and
66(c), UCMJ.
                                  I. BACKGROUND
   On 3 August 2016, the appellant was arraigned on the following offenses:2
   Charge I: Violation of the UCMJ, Article 107
      Specification 1: (false official statement) On or between February 2012
and June 2012, the appellant made a false official statement to a senior chief.
       Specification 2: (false official statement) On 26 August 2014, the
appellant made a false official statement to a Naval Criminal Investigative
Service (NCIS) special agent.3
   Charge II: Violation of the UCMJ, Article 121
     Specification: (larceny) Between on or about 1 February 2011 and 15
March 2014, on divers occasions, the appellant stole basic allowance for




   1 The appellant pleaded guilty by exceptions to making a false official statement
to a Naval Criminal Investigative Service special agent. The military judge accepted
the appellant’s guilty plea, and the excepted language to which the appellant had
pleaded not guilty was contested before members.
   2   Record at 22.
   3  Charge I, Specification 2 alleges the appellant made a false official statement to
an NCIS special agent concerning: (1) the location of his dependents from late 2009
until March 2014; and (2) whether or not the appellant had sex with MM, a woman
not his wife.


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housing (BAH) funds and cost of living adjustment (COLA) funds in the
amount of $72,960.00.4
   Charge III: Violation of the UCMJ, Article 134
       Specification 1: (adultery) Between on or about 7 November 2013 and
29 January 2016, on divers occasions, the appellant wrongfully had sexual
intercourse with MM, a woman not his wife.
       Specification 2: (obstructing justice) Between on or about 9 September
2014 and 1 October 2014, the appellant wrongfully endeavored to influence
the actions of Ms. CJ-H.
       Specification 3: (obstructing justice) Between on or about 1 August
2014 and 30 October 2014, the appellant wrongfully endeavored to influence
the actions of Ms. AM.
        Specification 4: (Computer Fraud and Abuse Act) Between on or about
10 November 2013 and 8 October 2014, on divers occasions, the appellant did
violate 18 U.S.C. § 1030(a)(2)(B), a crime or offense, not capital.
   Additional Charge I: Violation of the UCMJ, Article 107
       Specification 1: (false official statement) On 9 December 2008, the
appellant signed a false special request/authorization form.
       Specification 2: (false official statement) On 12 December 2008, the
appellant signed a false NAVPERS 1070/602 dependency application/record
of emergency data form.
       Specification 3: (false official statement) On 10 November 2010, the
appellant signed a false NAVPERS 1070/602 dependency application/record
of emergency data form.
       Specification 4: (false official statement) On 15 August 2014, the
appellant signed a false NAVPERS 1070/602 dependency application/record
of emergency data form.
   Additional Charge II: Violation of the UCMJ, Article 121
       Specification: (larceny) Between on or about 6 December 2008 and 31
January 2011, on divers occasions, the appellant stole BAH funds and COLA
funds in an amount in excess of $500.00.
   Additional Charge III: Violation of the UCMJ, Article 132
     Specification: (fraud against the United States) On or about 9
December 2008, for the purpose of obtaining the approval of a claim against

   4 The dollar amount alleged in the specification was later modified to $69,674.00.
Record at 414-16.


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the United States, the appellant used a special request/authorization form
which contained a statement that was false and fraudulent and was then
known by the appellant to be false and fraudulent.
   As a result of the pretrial litigation, on 9 August 2016, the military judge
dismissed with prejudice specifications 1, 2, and 3 of Additional Charge I.5
During the next Article 39(a), UCMJ, session on 22 September 2016, the
appellant entered pleas of not guilty to all charges and specifications
remaining before the court.6
    On 30 September 2016, the trial counsel withdrew and dismissed without
prejudice Specifications 2 and 4 of Charge III.7 He then modified the
numbering and labeling of the specifications on the charge sheet to reflect the
offenses which remained before the court.8
    On 3 October 2016, the appellant reentered his pleas, changing some of
his prior not guilty pleas to pleas of guilty.9 The military judge found the
appellant guilty of those offenses to which he had pleaded guilty. The
remaining offenses and the language of Specification 2 of Charge I to which
the appellant had pleaded not guilty were contested before members. 10
    After entering his findings on the record regarding the appellant’s pleas of
guilty, the military judge then consolidated the operative language of the sole
specification of Charge II into the sole specification of Additional Charge II
and conditionally dismissed Charge II and its sole specification without
prejudice.11 The language of the consolidated specification was attached to
the record as Appellate Exhibit XLI.



   5   Appellate Exhibit XVIII at 9.
   6   Record at 302.
   7   Id. at 350.
   8  The trial counsel renumbered Specification 3 of Charge III as Specification 2,
and relabeled Specification 4 of Additional Charge I as the sole specification under
that charge. Id. at 351. For the remainder of the court-martial, these offenses were
referred to by all parties in the manner they were labeled on the charge sheet
following the trial counsel’s modifications.
   9   Id. at 353.
   10  During the inquiry into the sole specification of Charge II, both counsel noted
that the value of the stolen BAH and COLA was in error. Without objection, the trial
counsel amended the value alleged in the specification to $69,740.00. Id. at 415-16.
The military judge allowed the appellant to reenter his plea of guilty to the amended
specification. Id. at 422.
   11   Id. at 422-25.


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                       United States v. Dreyfus, No. 201700052


    At the conclusion of the government’s case on the merits, the military
judge, pursuant to RULE FOR COURTS-MARTIAL (R.C.M.) 917, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.), entered findings of not guilty to
Specification 2 of Charge III12 and the language in Specification 2 of Charge I
to which the appellant had pleaded not guilty.13 The members then convicted
the appellant of all remaining offenses.14
   The court-martial promulgating order in the appellant’s case was
published on 1 February 2017 and incorrectly reflects only those offenses
pending before the court on 3 October 2016.
                                  II. DISCUSSION
    An appellant is entitled to an official record accurately reflecting the
results of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M.
Ct. Crim. App. 1989).
    Court-martial promulgating orders are the mechanism by which the
results of a court-martial and any actions by the CA or higher authorities on
the record are published. R.C.M. 1114(a)(2). At a minimum, a court-martial
promulgating order must contain the following information: (1) the type of
court-martial and the convening command; (2) a summary of all charges and
specifications on which the appellant was arraigned; (3) the appellant’s pleas;
(4) the findings or disposition of all charges and specifications on which the
appellant was arraigned; (5) if adjudged, the sentence; and (6) a summary of
the action taken by the CA in the case. R.C.M. 1114(c)(1).
   The promulgating order:
            does not accurately reflect that the military judge
             consolidated the operative language of the sole specification
             of Charge II into the sole specification of Additional Charge
             II and conditionally dismissed Charge II and its sole
             specification without prejudice;
            does not contain a summary of specifications 2 and 4 of
             Charge III, the appellant’s pleas of 22 September 2016 to
             these offenses, or the disposition of these offenses;
            does not contain a summary of specifications 1, 2, and 3 of
             Additional Charge I, or the disposition of these offenses;
             and


   12   Id. at 1369.
   13   Id. at 1370.
   14   Id. at 1511.


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           inaccurately summarizes the offense to which the appellant
            pleaded and was found guilty of violating in the sole
            specification of Additional Charge II; instead it reflects the
            consolidated language of the sole specifications of Charge II
            and Additional Charge II without noting it is a consolidated
            specification.15
    We find the court-martial promulgating order in error because it does not
comply with the requirements of R.C.M. 1114(c)(1). The court-martial
promulgating order should have reflected a summary of all offenses for which
the appellant was arraigned on 3 August 2016—not just those offenses before
the court on 22 September 2016 or 3 October 2016—his pleas, if any, to those
offenses, and the findings and disposition of those offenses. We review this
error under a harmless-error standard. Crumpley, 49 M.J. at 539.
    We find that the errors in the court-martial promulgating order “did not
affect the appellant’s substantial rights, since no prejudice was alleged or
apparent. [However, the a]ppellant is entitled to have [his] official records
correctly reflect the results of [his] proceeding.” Id. Accordingly, we order
correction.
                                 III. CONCLUSION
    The findings and sentence, as approved by the CA, are affirmed. However,
the supplemental promulgating order shall correctly reflect a summary of all
offenses, and the pleas, findings, and disposition of all charges and
specifications for which the appellant was arraigned on 3 August 2017.
    To aide in the publication of the supplemental promulgating order, we
note that at the conclusion of the appellant’s court-martial the following is
the accurate accounting of his pleas and the findings and disposition of all
offenses upon which he was arraigned:
   Charge I: Violation of the UCMJ, Article 107
        Plea: Guilty.
        Finding: Guilty.
        Specification 1: (false official statement)
               Plea: Not Guilty.



   15  After the military judge found the appellant guilty of Charge II and its sole
specification, citing United States v. Thomas, 74 M.J. 563, 570 (N-M. Ct. Crim. App.
2014), he merged the operative language of the offense into the sole specification of
Additional Charge II, and conditionally dismissed Charge II and its sole specification.
Record at 422-25.


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               United States v. Dreyfus, No. 201700052


          Finding: Guilty.
   Specification 2: (false official statement)
          Plea: Guilty by exceptions.
          Finding: Guilty except for the words “and I have never had sex
          with Operation Specialist First Class [MM], U.S. Navy”—of the
          excepted language, not guilty. The finding of not guilty to the
          excepted language was the result of the military judge’s R.C.M.
          917 ruling.
Charge II: Violation of the UCMJ, Article 121
          Plea: Guilty.
          Finding: Guilty.
          Disposition: After findings, the charge was conditionally
          dismissed without prejudice by the military judge.
   Specification: (larceny)
          Plea: Guilty.
          Finding: Guilty.
          Disposition: After findings, the specification was conditionally
          dismissed by the military judge and the operative language of
          the specification was consolidated into the sole specification of
          Additional Charge II.
Charge III: Violation of the UCMJ, Article 134
   Plea: Not guilty.
   Finding: Guilty.
   Specification 1: (adultery)
          Plea: Not guilty.
          Finding: Not guilty as a result of the military judge’s R.C.M.
          917 ruling.
   Specification 2: (obstructing justice)
          Plea: Not guilty.
          Finding: No finding was entered.
          Disposition: The offense was dismissed without prejudice by
          the trial counsel on 30 September 2016.
   Specification 3: (obstructing justice)



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          Plea: Not guilty.
          Finding: Guilty.
   Specification 4: (Computer Fraud and Abuse Act)
          Plea: Not guilty.
          Finding: No finding was entered.
          Disposition: The offense was dismissed without prejudice by
          the trial counsel on 30 September 2016.
Additional Charge I: Violation of the UCMJ, Article 107
   Plea: Guilty.
   Finding: Guilty.
   Specification 1: (false official statement)
          Plea: No plea was entered.
          Finding: No finding was entered.
          Disposition: The offense was dismissed with prejudice by the
          military judge on 9 August 2016.
   Specification 2: (false official statement)
          Plea: No plea was entered.
          Finding: No finding was entered.
          Disposition: The offense was dismissed with prejudice by the
          military judge on 9 August 2016.
   Specification 3: (false official statement)
          Plea: No plea was entered.
          Finding: No finding was entered.
          Disposition: The offense was dismissed with prejudice by the
          military judge on 9 August 2016.
   Specification 4: (false official statement)
          Plea: Guilty.
          Finding: Guilty.
Additional Charge II: Violation of the UCMJ, Article 121
   Plea: Guilty.
   Finding: Guilty.
   Specification: (larceny)


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          Plea: Guilty.
          Finding: Guilty.
          Disposition: Following his entry of findings, the military judge
          consolidated the operative language from the sole specification
          of Charge II into the language of this offense
Additional Charge III: Violation of the UCMJ, Article 132
   Plea: Not guilty.
   Finding: Guilty.
   Specification: (fraud against the United States)
          Plea: Not guilty.
          Finding: Guilty.
                                   For the Court



                                   R.H. TROIDL
                                   Clerk of Court




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