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

                            UNITED STATES, Appellee
                                         v.
                         Staff Sergeant LUIS R. CORRAL
                          United States Army, Appellant

                                   ARMY 20121031

            Headquarters, U.S. Army Training Center and Fort Jackson
            Stephen Castlen and David H. Robertson, Military Judges
    Lieutenant Colonel Eric K. Stafford, Acting Staff Judge Advocate (pretrial)
            Colonel Steven B. Weir, Staff Judge Advocate (post-trial)


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; Major Alison L. Gregoire, JA (on brief).


                                    15 August 2014

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

LIND, Senior Judge:

       An panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of five specifications of violation of a
lawful general regulation, five specifications of maltreatment of subordinates, one
specification of abusive sexual contact, two specifications of indecent acts, one
specification of forcible sodomy, one specification of assault consummated by a
battery, and one specification of adultery in violation of Articles 92, 93, 120, 125,
128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 892, 893, 920, 925, 928, 934 (2006 and Supp. V 2012). The members sentenced
appellant to a bad-conduct discharge, confinement for five years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence and credited appellant with 73 days against the
sentence to confinement.
CORRAL — ARMY 20121031

       This case is before the court for review under Article 66, UCMJ. Appellant
avers, inter alia, that when acting on appellant’s request for deferment and waiver
and when taking action in appellant’s case, the convening authority was engaged in
misconduct similar to that of appellant and was not acting in an impartial manner in
appellant’s case. Appellant requests this court set aside the action and return the
record of trial to a new convening authority for post-trial review and clemency. We
hold that a new review and action is warranted in this case.

       Appellant was a drill sergeant at Fort Jackson, South Carolina. His
convictions involve illegal associations with five trainees; maltreatment by sexually
harassing the same five trainees; forcible sodomy and adultery with one of the
trainees; abusive sexual contact with another trainee; indecent acts with two of the
trainees; and assault consummated by a battery against one of the trainees by
grabbing her shirt and kissing her.

       Appellant’s case was referred on 21 June 2012. Action was taken on
22 March 2013. Throughout this time, Brigadier General (BG) Bryan T. Roberts
acted as the convening authority in appellant’s case. On 29 November 2012,
BG Roberts denied: (1) appellant’s request for deferment of adjudged and automatic
forfeitures, reduction in rank, and confinement, and (2) appellant’s request for
waiver of automatic forfeitures.

       Appellant has asked the court to consider published accounts of an Army
announcement that BG Roberts was suspended as commander of the Army Training
Center on 21 May 2013 based on a preliminary investigation by Army Criminal
Investigation Command (CID) into alleged adultery and assault by BG Roberts. 1
Appellant has also asked us to consider a redacted report of investigation (ROI) of
BG Roberts by the U.S. Army Inspector General Agency (DAIG) dated 16 September
2013 substantiating that BG Roberts engaged in two inappropriate relationships with




1
  The government does not concede that the facts in the admitted publications are
accurate, however, the government does not dispute that BG Roberts was suspended
from command on 21 May 2013 pending investigation into alleged adultery and
assault. We are permitted to take judicial notice of indisputable facts important to
resolve appellate issues. United States v. Paul, 73 M.J. 274, 278 (C.A.A.F. 2014)
(citing United States v. Williams, 17 M.J. 207, 214 (C.M.A. 1984)). We take
judicial notice the BG Roberts was suspended from command on 21 May 2013
pending investigation into alleged adultery and assault.




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CORRAL — ARMY 20121031

civilian subordinates between December 2010 and February 2013 and improperly
used government resources. 2

       We do not find that any additional inquiry into BG Roberts’s misconduct is
necessary to resolve this case. The Air Force Court of Criminal Appeals’
predecessor addressed a similar situation where a convening authority took action in
cases involving sexual misconduct while he was under investigation for sexual
misconduct. See United States v. Gregg, ACM 28848, 1991 WL 85323 (A.F.C.M.R.
18 Apr. 1991) (per curiam). 3 In these cases, the Air Force Court of Military Review
in “an abundance of caution over the need to preserve the appearance of propriety in
the military justice system” recognizing “the effect of the consciousness of one’s
own misbehavior might influence decisions about the misbehavior of others” set
aside the convening authority action and remanded the case for a new
recommendation and action by a different convening authority. 4 United States v.
Kroop, 34 M.J. 628, 630-32 (A.F.C.M.R. 1992) (opinion on further review); see
Gregg, 1991 WL 85323; United States v. Moore, ACM 28290, 1992 WL 153607,
at *1 (A.F.C.M.R. 15 Jun. 1992) (opinion on further review).

       Unlike Gregg, Kroop, and Moore, the similarities between appellant’s
misconduct and that of BG Roberts are less clear. The gravamen of the misconduct
in appellant’s case is forcible sodomy, sexual assault, and sexual harassment of
trainees in a cadre/training environment. In contrast, there was no allegation of non-
consensual sexually assaultive behavior by BG Roberts. Nonetheless, both
appellant’s misconduct and that of BG Roberts involve sexual misconduct and

2
 The ROI states that on 13 February 2013, CID received a complaint of an assault
by BG Roberts and began its investigation. The complainant told CID she was in a
sexual relationship with BG Roberts from May 2011 to 13 February 2013 and that
BG Roberts had assaulted her. The ROI further states that following a 2 August
2013 CID final report, BG Roberts received non-judicial punishment under Article
15, UCMJ, for assault, adultery, and conduct unbecoming an officer.
3
 In Gregg, the Air Force Court of Military Review joined three cases involving this
same issue: Gregg, United States v. Kroop (ACM 28424), and United States v.
Moore (ACM 28290). Gregg, 1991 WL 85323, at *1.
4
  In Kroop and Moore, the Air Force Court of Criminal Appeals rejected the
contention that the collateral misconduct of the convening authority disqualified him
from referring the case or selecting or impact his selection of members for the court-
martial. Kroop, 34 M.J. at 632-33; Moore, 1992 WL 153607, at *4; see also United
States v. Robertson, ARMY 9700500, 1999 WL 35021399, at *1 (Army Ct. Crim.
App. 22 Jul. 1999) (mem. op.).




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CORRAL — ARMY 20121031

inappropriate relationships with subordinates and assaultive behavior. Brigadier
General Roberts’s misconduct occurred, at least in part, contemporaneous with his
denial of appellant’s requests for deferment and waiver. Furthermore, the CID
investigation into BG Roberts’s sexual relationship with and assaults of the
complainant was ongoing when he took action in appellant’s case. Under the unique
facts of this case, we also find it necessary to exercise an abundance of caution to
preserve the public’s confidence in the fairness and integrity of the military justice
system.

                                   CONCLUSION

       The action of the convening authority dated 22 March 2013 is set aside. The
record of trial is returned to the Judge Advocate General for a new action by a
different convening authority in accordance with Article 60(c)-(e), UCMJ.

      Judge KRAUSS and Judge PENLAND concur.

                                        FOR THE COURT:




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




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