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

                            UNITED STATES, Appellee
                                        v.
                         Private E1 STEVEN M. TUCKER
                          United States Army, Appellant

                                     ARMY 20150634

         Headquarters, United States Army Cadet Command and Fort Knox
                         S. Charles Neill, Military Judge
              Colonel E. Edmond Bowen, Jr., Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L. Borchers,
JA; Captain Timothy G. Burroughs, JA (on brief).

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


                                        6 March 2019

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                         SUMMARY DISPOSITION ON REMAND
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SALUSSOLIA, Judge:

       This case returns to this court after remand. Our previous opinion is available
at United States v. Tucker, 75 M.J. 872 (Army Ct. Crim. App. 2016). 1 Our superior
court set aside that decision and remanded this case for a new review in light of


1
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of conspiracy to obstruct justice, one specification of
sexual assault, two specifications of unlawfully providing alcohol to a person under
the age of twenty-one, and one specification of obstruction of justice in violation of
Articles 81, 120, and 134, Uniform Code of Military Justice [UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge and confinement for forty-two
months. In accordance with a pretrial agreement, the convening authority approved
only so much of the sentence as provided for a bad-conduct discharge and thirty-six
months confinement.
TUCKER—ARMY 20150634

Elonis v. United States, 135 S. Ct. 2001 (2015), and United States v. Haverty, 76
M.J. 199 (C.A.A.F. 2017). United States v. Tucker, 76 M.J. 257 (C.A.A.F. 2017).

       On the first remand to this court, the findings of guilty and sentence were,
again, affirmed. United States v. Tucker, 77 M.J. 696 (Army Ct. Crim. App. 2018).

       Our superior court reversed that decision as to the finding of guilty for
providing alcohol to minors, Specification 1 of Charge IV, and the sentence. United
States v. Tucker, 78 M.J. 183 (C.A.A.F. 2018). The finding of guilty as to
Specification 1 of Charge IV and the sentence were set aside. Id. at 186-87. The
Court of Appeals for the Armed Forces’ (CAAF) remand allows this court to either
dismiss Specification 1 of Charge IV and reassess the sentence, or we may order a
rehearing. Id. at 187.

                                    CONCLUSION

      We SET ASIDE and DISMISS Specification 1 of Charge IV. The remaining
findings of guilty remain AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 308
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we affirm only so much of the sentence as provides for a bad-conduct
discharge and confinement for thirty-five months.

       All rights, privileges, and property of which appellant has been deprived by
virtue of that portion of his sentence set aside by this decision are ordered restored.
See UCMJ arts. 58b(c) and 75(a).

      Senior Judge WOLFE concurs.

ALDYKIEWICZ, Judge, dissenting in part:

        I concur with the decision to dismiss Specification 1 of Charge IV. I also
concur the court is able to reassess the sentence. However, I respectfully dissent
with the decision to grant appellant a one-month reduction in sentence. I would
affirm the sentence approved by the convening authority and grant no sentence
relief.

       Dismissal of the specification at issue, providing alcohol to minors, an
offense with a maximum punishment of four months confinement, reduces
appellant’s maximum exposure to confinement from forty years and eight months to
forty years and four months. The military judge only sentenced appellant to a bad-
conduct discharge and confinement for forty-two months. The convening authority,



                                           2
TUCKER—ARMY 20150634

pursuant to a pretrial agreement, limited the period of confinement to thirty-six
months. The four month reduction in appellant’s maximum exposure constitutes a
0.8% reduction in his confinement exposure.

       The gravamen of appellant’s crimes is unchanged. Dismissal of appellant’s
conviction for providing alcohol to minors does not change the aggravating facts and
circumstances of this case. Appellant sexually assaulted a fellow soldier who was
incapacitated due to alcohol, a fact known to appellant and one which he capitalized
on to satisfy his own personal, sexual desires without regard to the physical,
emotional, or psychological pain and suffering inflicted upon his victim. When
talking to another soldier about his actions on the night in question, and prior to any
idea that he might be in serious trouble, appellant noted that he “hit that last night,”
referring to having sex with PV2 T.G. Once appellant and his co-accused believed
they were in trouble, they falsely reported to U.S. Army Criminal Investigation
Command (CID) agents a sexual assault, accusing their victim of having sex with
them against their will.

        Further, all evidence related to the dismissed specification was admissible at
trial as relevant facts and circumstances surrounding appellant’s charge of sexual
assault. As such, evidence that appellant provided alcohol to his victim before he
sexually assaulted her, when she was not of legal age to drink alcohol, is an
aggravating circumstance for consideration in determining appellant’s sentence.

      Accordingly, I find the penalty landscape unchanged and would not grant
appellant any sentence relief.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



                                        SHELLEY GOODWIN-MATHERS
                                        SHELLEY
                                        Acting ClerkD. GOODWIN-MATHERS
                                                    of Court




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