UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           MULLIGAN, HERRING, and BURTON
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Specialist JARED L. PITTMAN
                           United States Army, Appellant

                                    ARMY 20140337

                              Headquarters, Fort Stewart
                           John T. Rothwell, Military Judge
                          Colonel Francisco A. Vila (pretrial)
              Colonel Luis O. Rodriguez, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA;
Captain Scott L. Goble, JA; Captain Diara Z. Andrews, JA (on brief).


                                     21 January 2016

                               -----------------------------------
                                SUMMARY DISPOSITION
                               -----------------------------------

Per Curiam:

      An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of adultery and one specification of
obstructing justice in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2012) [hereinafter UCMJ]. 1 The panel sentenced appellant to a
reduction to the grade of E-1, nine months confinement, and a bad conduct
discharge. The convening authority approved the findings and sentence as adjudged.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant raises one assignment of error which merits discussion and relief:


1
  The panel acquitted the appellant of one specification of conspiracy to obstruct
justice, one specification of making a false official statement, and one specification
of sexual assault, charged under Articles 81, 107, and 120, UCMJ.
PITTMAN—ARMY 20140337


             CHARGE III, SPECIFICATION I, WAS NOT REFERRED
             TO [APPELLANT’S] COURT-MARTIAL, THEREFORE
             THE COURT-MARTIAL LACKED JURISDICTION TO
             ENTER FINDINGS FOR THAT OFFENSE.

                                   BACKGROUND

        On 13 November 2013 the government preferred charges against the
appellant. Specification 1 of Charge IV, renumbered as Specification 1 of Charge
III following the Article 32, UCMJ, investigation, alleged appellant committed
adultery in violation of Article 134, UCMJ. On 4 February 2014, the staff judge
advocate provided his pretrial advice to the convening authority wherein he
recommended:

      [T]hat Specification 1 of Charge III [renumbered](Adultery) be
      dismissed. I recommend that the remaining charges and their
      specifications, dated 13 November 2013, and the additional charge and
      its specification, dated 15 January 2014, be tried by General Court-
      Martial and be referred to trial….

On the same day, the convening authority approved the staff judge advocate’s
recommendation without any changes or caveats. Based on this approval, the chief
of military justice annotated the charge sheet to reflect the referral of the charges to
trial “[b]y command of the [convening authority].” Inexplicably, Specification 1 of
Charge III was not dismissed and remained on the referred charge sheet as an
apparent viable charge. Trial counsel and defense counsel failed to identify or raise
any issue concerning this specification at trial. 2 After trial, the successor staff
judge advocate also failed to identify the erroneous referral of the adultery charge
when he advised the convening authority to approve the panel’s findings of guilt and
sentence.

      The adultery specification stemmed from an incident occurring on 3
November 2012 following a party at appellant’s house. Appellant, his wife, SGT
PW, and Ms. AB played poker, which eventually evolved into a game of strip poker.
Appellant later engaged in sexual intercourse with Ms. AB, an act witnessed by SGT
PW. In February 2013, Ms. AB informed law enforcement that appellant had
sexually assaulted her, resulting in an investigation. While the investigation was
ongoing, appellant asked SGT PW to convince Ms. AB to drop the charges against


2
  In fact, trial defense counsel’s closing argument, read as a whole, essentially
conceded by omission that the appellant committed adultery. “…[Appellant] should
not be found guilty of sexual assault, conspiracy, obstruction of justice, and making
a false official statement.”
                                           2
PITTMAN—ARMY 20140337

appellant. Appellant threatened to leak a video of SGT PW having sexual
intercourse with Ms. AB on the evening of the party if SGT PW could not convince
Ms. AB to drop her accusations.

                                    DISCUSSION

       “Jurisdiction is the power of a court to try and determine a case and to render
a valid legal judgment.” U.S. v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006).
Whether the trial court has jurisdiction is a legal question we review de novo. Id.

       Jurisdiction by a court-martial generally requires “(1) jurisdiction over the
offense, (2) personal jurisdiction over the accused, and (3) a properly convened and
composed court-martial.” Id.; see Rule for Court-Martial [hereinafter R.C.M.]
R.C.M 201(b). One of the prerequisites for court-martial jurisdiction is the
requirement that “[e]ach charge before the court-martial…be referred to it by
competent authority.” R.C.M. 201(b)(3). A referral occurs upon “the order of the
convening authority that charges against an accused will be tried by a specified
court-martial.” R.C.M. 601(a). “[W]here a particular charge was not referred to a
court-martial, either formally or informally, by the officer who convened the court-
martial, …the court-martial lacks jurisdiction to enter findings over that charge or
specification.” United States v. Nealy, 71 M.J. 73, 76 (C.A.A.F. 2012) (citing
United States v. Wilkins, 29 M.J. 421, 424 (C.M.A. 1990)). “[I]t is the convening
authority's personal decision, and a prerequisite to jurisdiction, that a charge be
referred to court-martial.” Nealy, 71 M.J. at 76 (citing Wilkins, 29 M.J. at 423-24).

      The record here is unambiguous. The convening authority approved the staff
judge advocate’s recommendation concerning referral of charges, including the
recommendation to dismiss Specification 1 of Charge III. We find that the court-
martial lacked jurisdiction over that specification and accordingly, it is
DISMISSED.

                                   CONCLUSION

      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 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). We AFFIRM only so much of the sentence as provides for a bad
conduct discharge, confinement for 8 months, and a reduction to the grade of E-1.

      First, we find no dramatic change in the penalty landscape that might cause us
pause in reassessing appellant’s sentence. Dismissal of the adultery specification
reduces the maximum confinement from six years to five years, while the remaining

                                           3
PITTMAN—ARMY 20140337

aspects of the penalty landscape remain the same. Second, although appellant was
sentenced by members, we are confident based upon our combined experience of the
sentence the members would have adjudged for obstruction of justice. Third, the
nature of the remaining offense still captures the gravamen of the original offense.
In this regard, we note that the evidence of the appellant’s adulterous liaison with
Ms. AB would have been placed before members in proving obstruction of justice.
Finally, based on our experience, we are familiar with the remaining offense so that
we may reliably determine what sentence would have been imposed at trial. All
rights, privileges, and property, of which appellant has been deprived by virtue of
this decision setting aside portions of the findings and sentence are ordered restored.


                                        FOR THE COURT:
                                        FOR THE COURT:



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




                                           4
