UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             BURTON, SALADINO, and FLEMING
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                    Sergeant First Class BRADLEY W. COFFEY
                          United States Army, Appellant

                                        ARMY 20180073

                           Headquarters, 7th Infantry Division
     Lanny J. Acosta, Jr., Timothy Hayes, Jr., and James Arguelles, Military Judges
                   Colonel Russell N. Parson, Staff Judge Advocate


For Appellant: Lieutenant Colonel Todd W. Simpson, JA; Major Julie L. Borchers,
JA; Captain Alexander N. Hess, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Lieutenant Colonel Wayne H. Williams, JA; Major Sandra L. Ahinga, JA (on
brief).


                                           17 May 2019
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                    SUMMARY DISPOSITION ON RECONSIDERATION
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Per Curiam:

      On brief, the parties agree that appellant’s conviction for assault
consummated by battery “on divers occasions” was supported by evidence of a
singular assault. Pursuant to our review of the record, we agree and grant relief in
our decretal paragraph. 1

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general regulation
and three specifications of communicating indecent language, in violation of
Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934
[UCMJ]. Contrary to his pleas, appellant was also found guilty of one specification
of rape by unlawful force, one specification of assault consummated by battery, and
two specifications of soliciting the rape of a child, in violation of Articles 120, 128,

1
    On our own motion, we have granted reconsideration of our 13 May 2019 decision.
COFFEY—ARMY 20180073

and 134, UCMJ. The military judge sentenced appellant to a dishonorable discharge,
confinement for eight years, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence as
provided for a dishonorable discharge, confinement for two years, and reduction to
the grade of E-1. We review the case under Article 66, UCMJ.

       In his brief to this court, appellant raises four assignments of error, one of
which merits discussion and relief. 2 Specifically, appellant asserts – and the
government concedes 3 – that his conviction for assault consummated by battery “on
divers occasions” was only supported by evidence for a singular assault. We agree,
and we thus cannot affirm the “on divers occasions” language as being legally and
factually sufficient. See, e.g., United States v. Walters, 58 M.J. 391, 395 (C.A.A.F.
2003) (explaining our statutory duty under Article 66 to review a record of trial for
legal and factual sufficiency de novo).

                                   CONCLUSION

      We AFFIRM only so much of the finding of guilty of The Specification of
Charge III as provides:

             In that [appellant], U.S. Army, did, at or near Joint Base
             Lewis-McChord, Washington, between on or about 7
             March 2016 and on or about 28 March 2016, unlawfully
             strike Mrs. [KC] on the head with his head.

      The remaining findings of Guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do
so after conducting a thorough analysis of the totality of circumstances presented
by appellant’s case and in accordance with the principles articulated by our
superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013). In evaluating the Winckelmann factors, we are confident that based on the
entire record and appellant’s course of conduct, the imposed sentence would have
been at least that which was approved.

2
 Appellant also personally raised matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), which do not merit discussion or relief.
3
  We find the government’s concession in this case to be appropriate. In doing so,
we join our superior court in noting “that it is always commendable and constructive
to have appellate counsel concede the obvious in briefs and at oral argument.”
United States v. Honea, 77 M.J. 181, 184 n.5 (C.A.A.F. 2018); see also United
States v. Sewell, 76 M.J. 14, 21 n.2 (C.A.A.F. 2017) (Ohlson, J., concurring in part
and dissenting in part) (noting appellate government counsel “admirably and
appropriately conceded” several prosecutorial errors during oral argument).


                                          2
COFFEY—ARMY 20180073

      Reassessing the sentence based on the noted errors and entire record, we
AFFIRM the sentence as approved. We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

                                       FOR THE COURT:




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




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