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

                              UNITED STATES, Appellee
                                          v.
                            Private E1 KEVIN M. PEARCE
                            United States Army, Appellant

                                       ARMY 20110107

  Headquarters, United States Army Accessions Command and Fort Knox (trial)
  Headquarters, United States Army Cadet Command and Fort Knox (new action)
                        Timothy Grammel, Military Judge
  Colonel Robert J. Cotell, Staff Judge Advocate (trial and new recommendation)
  Lieutenant Colonel Christopher B. Burgess, Acting Staff Judge Advocate (new
                                     addendum)


For Appellant: Major Richard E. Gorini, JA; Captain Robert N. Michaels, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on
brief).


                                         15 March 2013

                    ---------------------------------------------------------------
                     SUMMARY DISPOSITION ON FURTHER REVIEW
                    ---------------------------------------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of absence without leave in violation of
Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for eleven months, and forfeiture of $978.00 pay per month for eleven
months. The convening authority (CA) approved eight months of confinement,
sixty-two days of confinement credit, and the remainder of the adjudged sentence.
In addition, the CA approved appellant’s request to defer adjudged and automatic
forfeitures and, at action, waived automatic forfeitures for a period of six months,
directing those funds be paid to appellant’s spouse. This case was then sent to this
court for review pursuant to Article 66, UCMJ.
PEARCE—ARMY 20110107

       On 16 May 2012, we issued an opinion agreeing with appellant’s sole
assignment of error. 1 We found a document included in appellant’s Rule for Courts-
Martial [hereinafter R.C.M.] 1105 submission was not submitted to the CA prior to
his taking action in appellant’s case as required by R.C.M. 1107(b)(3)(iii) and
United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998). Accordingly, we
returned the case to the CA for a new post-trial recommendation (SJAR) and action.
United States v. Pearce, ARMY 20110107, 2012 WL 1899332 (Army Ct. Crim. App.
16 May 2012) (sum.disp.). In addition, our opinion noted the CA had waived
automatic forfeitures in his action, but, in this same action, approved adjudged
forfeitures. We further noted the effect of these contrary actions was to prevent
appellant’s spouse from receiving funds. See United States v. Emminizer, 56 M.J.
441 (C.A.A.F. 2002). Because the case was being sent back for a new
recommendation and action, we did not take action to correct this obvious
ambiguity. Pearce, 2012 WL 1899332, at *1.

       A new SJAR and action has now been completed. The original assignment of
error has been addressed and is no longer an issue. However, in approving
appellant’s sentence to a bad-conduct discharge, confinement for eight months, and
forfeiture of $978.00 pay per month for eleven months, 2 the convening authority still
has not corrected the issue involving appellant’s adjudged and automatic
forfeitures. 3 Appellant now raises this issue as an assignment of error and asks this
court to disapprove the adjudged forfeitures. The government concedes the issue
and also asks this court to disapprove the adjudged forfeitures. We will take
appropriate action in our decretal paragraph to remedy this issue.

                                                               CONCLUSION

       On consideration of the entire record, and the matters personally raised by the
appellant pursuant to Grostefon, we hold the findings of guilty correct in law and
fact and are AFFIRMED. In the interests of judicial economy, we affirm only so
much of the sentence that includes a bad-conduct discharge and confinement for
                                                            
1
 Those matters personally raised by appellant, pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), were found to be without merit.
2
 The CA also credited appellant with sixty-two days of confinement against the
sentence to confinement.
3
  In the new action, the CA states “[t]he automatic forfeiture of two-thirds pay
required by Article 58b, UCMJ, was waived on 16 June 2011. Any additional waiver
is disapproved.” We interpret this sentence to mean the CA has approved the six-
month waiver of automatic forfeitures, effective on 16 June 2011, as previously
granted by the prior CA. We, therefore, are still faced with the scenario wherein the
CA has attempted to waive automatic forfeitures, but negates this attempt by
approving adjudged forfeitures.

                                                                   2
PEARCE—ARMY 20110107

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


                                        FOR  THE COURT:
                                        FOR THE COURT: 




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




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