UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Private E-1 JOSEPH A. WARREN
                         United States Army, Appellant

                                   ARMY 20150602

          Headquarters, 2d Infantry Division/ROK-US Combined Division
                         Tiernan P. Dolan, Military Judge
                Colonel Lance S. Hamilton, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Captain Christopher D. Coleman, JA
(on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Lieutenant Colonel Kirsten M. Dowdy, JA (on brief); Major Anne C. Hsieh, JA;.

                                  17 November 2016

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

Per Curiam:

       Appellant pleaded guilty at a general court-martial to one specification each
of use, possession, and distribution of marijuana, in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a (2012). The military judge
sentenced appellant to a bad-conduct discharge and confinement for 135 days.
Pursuant to a pretrial agreement the convening authority reduced the confinement to
three months, but otherwise approved the punitive discharge.

      On appeal, appellant’s sole assignment of error is that the military judge erred
when he allowed the government to elicit from appellant’s commander specific acts
of appellant’s poor duty performance. 1 As appellant failed to preserve this issue for
appeal, and as we do not find plain error, we do not grant appellant relief.


1
 Appellant personally asserts, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), that the military judge erred when he failed to find, sua sponte, that

                                                                      (continued . . .)
WARREN—ARMY 20150602

       During sentencing the government elicited from appellant’s commander
Captain Smith that appellant “did not want to be there, did not adhere to haircut
standards, I thought he was just there passing the time.” The military judge
overruled the defense relevance objection. The government then, without defense
objection, elicited that appellant was “[n]ot somebody that really held up to the
values that the Army represents, in my opinion. You could tell he didn’t want to be
there, tell he was doing the bare minimum . . . so he wasn’t a stellar Soldier.”

       On appeal, appellant asserts that the elicited testimony was impermissible
under R.C.M. 1001(b). We agree with appellant. The government also agrees, but
argues that the defense failed to preserve the error at trial by either not objecting or
objecting only on relevance. 2 We also agree with the government, and accordingly
test for plain error. We find none.

      The findings of guilty and the approved sentence are AFFIRMED.

                                         FOR THE COURT:
                                        FOR THE COURT:



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




(. . . continued)
the specifications were unreasonably multiplied. Even assuming error, in the
context of a guilty plea in which appellant specifically agreed to plead guilty to all
three offenses in exchange for a more than ninety-eight percent reduction in his
confinement exposure, we do not exercise our Article 66(c) authority to notice
waived and forfeited error. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F.
2001) (A court of criminal appeals is “well within its authority to determine the
circumstances, if any, under which it would apply waiver or forfeiture. . . .”). Under
Rule for Court-Martial [hereinafter R.C.M.] 907(b)(3)(B), a specification may be
dismissed for multiplicity “upon timely motion” by the accused. On appeal,
appellant asks us to disapprove one or more of the specifications, even though he did
not move to dismiss them at trial. Of course, had appellant asked for this relief at
trial, appellant would have been breaking his agreement to plead guilty to all three
specifications–with uncertain results.
2
 Evidence may be relevant, but not admissible under other rules. See Military Rule
of Evidence 402 (“All relevant evidence is admissible except as otherwise provided
by . . . this Manual . . . .”).
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