UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             LIND, KRAUSS, and PENLAND
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                          Private E1 DEVON D. WILSON
                          United States Army, Appellant

                                   ARMY 20120565

               Headquarters, I Corps (Rear) (Provisional) (convened)
                          Headquarters, I Corps (action)
                           Kwasi Hawks, Military Judge
         Lieutenant Colonel John T. Rothwell, Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Robert
N. Michaels, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major John K. Choike, JA; Captain Jaclyn E. Shea, JA (on brief).


                                  30 September 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of six specifications of failure to repair and four specifications
of absence without leave in violation of Article 86, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 886 (2006). The convening authority approved the
adjudged sentence of a bad-conduct discharge and 100 days confinement. Appellant
was credited with fifty-two days against the sentence to confinement.

        This case is before the court for review under Article 66, UCMJ. Appellant
assigns one error alleging dilatory post-trial processing and raises several matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find that
neither appellant’s assigned error nor his Grostefon matters merit discussion or
relief.
WILSON—ARMY 20120565

       Although appellant makes no argument that the evidence is insufficient, in
performing our duty under Article 66, UCMJ, we conduct a de novo review of
factual and legal sufficiency. United States v. Gilchrist, 61 M.J. 785, 793 (Army Ct.
Crim. App. 2005) (citing United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002)). The test for factual sufficiency is “whether, after weighing the evidence of
record and making allowances for not having personally observed the witnesses,
[this court is] convinced of appellant’s guilt beyond a reasonable doubt.” Id. (citing
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). The test for legal
sufficiency is whether, considering the evidence “in the light most favorable to the
[g]overnment, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Winckelmann, 70 M.J. 403, 406
(C.A.A.F. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       Recognizing the required distinction between the offenses of failure to repair
(FTR) and absence from a unit (AWOL) under Article 86, and in light of the fact
that FTR is not a lesser-included offense of AWOL as charged in this case, we hold
the evidence is factually insufficient to support three of the four AWOL convictions
in this case (Specifications 2, 4 and 5 of Charge III). See Manual for Courts-
Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶ 10.b(1), (3); United
States v. Reese, 7 C.M.R. 292 (A.B.R. 1953); United States v. Sturkey, 50 C.M.R.
110 (A.C.M.R. 1975) (per curiam). While the evidence is legally sufficient for each,
we hold that the government did not prove beyond any reasonable doubt that
appellant was absent from his unit on the dates alleged; and, while, by appellant’s
own testimony, he failed to go to his appointed place of duty on each of the days
alleged, we harbor reasonable doubts about whether he was actually “absent from his
unit.” There is no doubt that appellant missed formations on consecutive duty days;
but, the government did not elicit, and appellant did not admit, sufficient facts upon
which to exclude reasonable doubt from our minds on the question of appellant’s
absence from his unit as alleged in specifications 2, 4 and 5 of Charge III. Cf.
United States v. Estes, 62 M.J. 544 (Army Ct. Crim. App. 2005). *

       Regarding appellant’s six failure to repair convictions, the specifications
alleged appellant “without authority, fail[ed] to go at the time prescribed to his
appointed place of duty, to wit: 0630 hours accountability formation, located at
Building P12327, Joint Base Lewis-McChord, Washington.” The government at trial
failed to elicit any evidence to support the fact that the accountability formation was
located at Building P12327. We therefore find the evidence legally insufficient only
as to the location of the accountability formation, “Building P12327,” for each of the
six failure to repair convictions.




*
 The evidence is legally and factually sufficient to affirm appellant’s conviction of
AWOL as alleged in Specification 3 of Charge III.


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WILSON—ARMY 20120565

                                   CONCLUSION

       Specifications 2, 4, and 5 of Charge III are set aside and dismissed. We
affirm all but the alleged location, “Building P12327,” of Specifications 7, 8, 15, 16,
17, and 18 of Charge III. See Sturkey, 50 C.M.R. at 111 (“The appointed place of
duty involved in Article 86(1), UCMJ, refers to a specifically appointed place of
duty such as . . . reveille formation . . . rather than a broader general place of duty
such as a command, a post or a unit.”). The remaining findings of guilty are
affirmed.

       Reassessing the sentence on the basis of the errors noted, the remaining
findings of guilty, and the aggravation evidence, which included records of non-
judicial punishment and the vacation of suspended punishments imposed under
Article 15 for similar offenses, we are confident the military judge would have
sentenced appellant to at least the adjudged sentence of a bad-conduct discharge and
100 days confinement. See United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2014); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986); MCM,
pt. IV, ¶ 10.e(1), (2)(a)-(b); Rule for Courts-Martial 1003(d)(3). The sentence is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        ANTHONY O. POTTINGER
                                        ANTHONY
                                        Chief        O. POTTINGER
                                              Deputy Clerk of Court
                                        Chief Deputy Clerk of Court




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