UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                                           Before
                                                               COOK, MORAN, and GALLAGHER
                                                                  Appellate Military Judges

                                                           UNITED STATES, Appellee
                                                                       v.
                                                         Specialist ANTHONY M. RABY
                                                         United States Army, Appellant

                                                                      ARMY 20110395

                                Headquarters, U.S. Army Garrison Fort Meade
                                       Denise R. Lind, Military Judge
                        Lieutenant Colonel Elizabeth G. Marotta, Staff Judge Advocate


For Appellant: Captain John L. Schriver, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).


                                                                     18 December 2012

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

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of aggravated sexual abuse of a child and sodomy of a child
who had not attained the age of twelve years, in violation of Articles 120 and 125,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006 & Supp. III 2009)
[hereinafter UCMJ]. Contrary to appellant’s pleas, the military judge convicted him
of rape of a child who had not attained the age of twelve years 1 and failure to obey a

                                                            
1
  Subsequent to announcing the findings, the military judge amended the rape of a
child specification by reducing the charged time period to reflect the facts. When
restating the amended specification, she erroneously characterized the victim as “a
child who had attained the age of twelve years.” This was simply a misstatement by
the military judge that went unnoticed by all the trial participants. In this case, the
clear intent of the military judge, and the understanding of the parties, was that the
amendment of the specification did not affect the finding as to the victim’s age—a

                                                                                                      (continued . . .)
RABY—ARMY 20110395

lawful order, in violation of Articles 120 and 92, respectively. Appellant was also
convicted, contrary to his plea, of failing to comply with a protective order in
violation of a state criminal law, assimilated into federal law pursuant to 18 U.S.C.
§ 13, in violation of Clauses 2 and 3 of Article 134, UCMJ. The military judge
sentenced appellant to a dishonorable discharge, confinement for thirty-one years,
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence. 2

       This case was submitted to us for review on its merits under Article 66,
UCMJ. However, although not raised, we conclude the staff judge advocate (SJA)
failed to correctly advise the convening authority concerning the Article 134, UCMJ,
offense. This error necessitates relief.

       A convening authority’s action implicitly approves the findings as reported by
the SJA in her post-trial recommendation (SJAR). United States v. Diaz, 40 M.J.
335, 337 (C.M.A. 1994). See UCMJ art. 60(d); Rule for Courts-Martial 1106(d)(3).
In this case, the SJAR, upon which the convening authority relied to approve the
findings and sentence, included a result of trial that erroneously reported appellant
was acquitted of Additional Charge II, the Article 134, UCMJ, offense mentioned
above. “[A]bsent contrary evidence, when a convening authority does not address
findings in his action, he approves only the findings of guilty as correctly stated in
[the SJAR].” United States v. Henderson, 56 M.J. 911, 912–13 (Army Ct. Crim.
App. 2002). As was the case in Henderson, we are faced with a scenario wherein the
SJAR “omits or misstates a finding of guilty.” Id. Applying Henderson to the
present case, we have no jurisdiction to affirm the Article 134, UCMJ, offense.

       Because we may act “only with respect to the findings and sentence as
approved by the convening authority,” UCMJ art. 66(c), we can “either affirm only
those findings of guilty (or portions thereof) that are correctly and unambiguously
stated in the SJAR, or return the case to the convening authority for a new SJAR and
action.” Henderson, 56 M.J. at 913. In the interest of judicial economy, we will set
aside the findings of guilty of the Article 134, UCMJ, offense.




(. . . continued)
child who had not attained the age of twelve years. Accordingly, no corrective
action is warranted. Cf. United States v. Perkins, 56 M.J. 825, 827 (Army Ct. Crim.
App. 2001).
2
 The convening authority waived appellant’s automatic forfeitures for six months,
with direction that they be paid to appellant’s spouse.  




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RABY—ARMY 20110395

                                                               CONCLUSION

       We have considered the record of trial and appellant’s assertions of error
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which
warrant discussion or relief. The findings of guilty of the Specification of
Additional Charge II and Additional Charge II are set aside. The remaining findings
are AFFIRMED. Reassessing the sentence on the basis of the error noted, the entire
record, and in accordance with the principles of United States v. Sales, 22 M.J. 305
(C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include
the factors identified by Judge Baker in his concurring opinion in Moffeit, the
approved sentence is AFFIRMED. 3


                                                                 FOR THE COURT: 
                                                                 FOR THE COURT:




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




                                                            
3
  In order to reassess, we must be confident “that, absent any error, the sentence
adjudged would have been of at least a certain severity.” Sales, 22 M.J. at 308.
See Moffeit, 63 M.J. at 43 (Baker, J., concurring in the result). In this case, the
penalty landscape did not change, as appellant still faces a maximum punishment of
life without the eligibility for parole for the remaining offenses. In addition, the
aggravating circumstances of appellant’s crimes are unchanged. Therefore, in light
of the remaining charges and their serious nature, we are confident the court would
have adjudged a sentence of at least a dishonorable discharge, confinement for
thirty-one years, and reduction to the grade of E-1.




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