UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Specialist ARRON M. HAMMACK
                          United States Army, Appellant

                                  ARMY 20101007

                           Headquarters, Fort Drum
                         Andrew Glass, Military Judge
    Lieutenant Colonel Robert L. Manley, III, Staff Judge Advocate (pretrial &
                                recommendation)
       Major Scott E. Hutmacher, Acting Staff Judge Advocate (addendum)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Sasha N. Rutizer, JA (on
brief).

                                   7 February 2013
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to mixed pleas, of drunken operation of a vehicle and assault, in violation
of Articles 111 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 911, 928
(2006) [hereinafter UCMJ]. The convening authority approved the sentence to a
bad-conduct discharge, confinement for ten months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.

        Appellant’s sole assignment of error for our review under Article 66, UCMJ,
is that he was denied the opportunity to request that the convening authority defer
his reduction in rank and his adjudged and automatic forfeitures. 1


1
 Appellant also raises matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), matters not yet addressed or resolved by this court.
HAMMACK—ARMY 20101007

      On a standard post-trial and appellate rights advisement form, DCAP Form
Three (13 May 2010), appellant indicated that he wanted to request deferral of his
reduction in rank, adjudged forfeitures, and automatic forfeitures. However,
contrary to appellant’s expressed desires, the record fails to reveal that any such
deferment request was ever presented to the convening authority. As a result,
appellant claims that he was prejudiced and requests that this court order a new
review and action. The government does not oppose appellant’s request and
concedes the propriety of a new review and action. In light of the government’s
concession, we will grant appellant’s requested relief. See United States v. Fordyce,
69 M.J. 501 (Army Ct. Crim. App. 2010) (en banc).

      The convening authority’s initial action, dated 20 July 2011, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation 2 and a new action by the same or different convening
authority in accordance with Article 60(c)–(e), UCMJ. In addition, appellant will
receive assistance from a new defense counsel.


                                       FOR THE COURT:




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




2
  We note that the original recommendation listed, as the third enclosure, “Pretrial
Agreement/Quantum.” However, appellant pleaded guilty without benefit of a
pretrial agreement. This is an obvious error in the recommendation. We further
note the following two promulgating order errors: the order states “DNA processing
required. 10 U.S.C. Section 1565”; and the Specification of Additional Charge II
(i.e., Article 111, UCMJ) alleges an offense “on or about 30 July 2000.” The
appellant was not convicted of any qualifying offenses requiring DNA processing
and the Article 111, UCMJ offense occurred in 2010, not 2000. Considering the
relief provided by this court, we need not address whether the obviously erroneous
recommendation and promulgating order prejudiced appellant.


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