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

                           UNITED STATES, Appellee
                                        v.
                          Specialist MICKEY B. KEEN
                          United States Army, Appellant

                                  ARMY 20130473

                           Headquarters, Fort Campbell
                        Steven E. Walburn, Military Judge
          Lieutenant Colonel Sebastian A. Edwards , Staff Judge Advocate


For Appellant: Major Vincent T. Shuler, JA; Captain Michael J. Millios, JA (on
brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                    26 March 2014

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

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of failure to obey a lawful general
regulation by possessing drug paraphernalia; two specifications of wrongful use of a
schedule II controlled substance; one specification of wrongful appropriation of
money of a value more than $500; and one specification of forgery , in violation of
Articles 92, 112a, 121, and 123, 10 U.S.C. §§ 892, 912a, 921, and 923, Uniform
Code of Military Justice (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for nine months, and reduction to
the grade of E-1. The convening authority disapproved the finding of guilty of one
wrongful use specification (Specification 2 of Charge II) and approved the
remaining findings of guilt y. The convening authority approved only so much of the
sentence as provided for a bad-conduct discharge, confinement for eight months, and
reduction to the grade of E-1. Appellant was credited with 104 days of confinement
against the sentence to confinement.
KEEN — ARMY 20130473

        This case was submitted to the court on its merits for review pursuant to
Article 66, UCMJ. Appellant personally raised several matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which we find are without merit.
However, upon review, we have identified one issue worthy of discussion, but no
relief.

       Appellant pled guilty to numerous charges and specifications, all relating to
his addiction to pain medications. In particular, appellant pled guilty to
Specification 2 of Charge II, which alleged he wrongfully used morphine, a
schedule II controlled substance. Despite this plea, appellant’s defense counsel
raised several allegations of legal error as to this specification in appellant’s post-
trial matters. Defense counsel asserted, inter alia, that the government “erred by
using a purely rehabilitative urinalysis for a criminal proceeding.”

       The staff judge advocate (SJA) in the addendum to his post-trial
recommendation (addendum) agreed with this assertion of legal error and
recommended that the convening authority disapprove and dismiss the finding of
guilty of Specification 2 of Charge II and approve the remaining findings of guilty.
Stating that “clemency is warranted,” the SJA further recommended that the
convening approve only so much of the sentence as provided for a bad-conduct
discharge, confinement for eight months, and reduction to the grade of E-1. The
convening authority accepted the SJA’s recommendations in their entirety.

       We find the SJA failed to properly advise the convening authority of his
sentence reassessment responsibilities in light of the disapproved finding of guilty.
See United States v. Reed, 33 M.J. 98, 99-100 (C.M.A. 1991); United States v.
Taylor, 47 M.J. 322, 323-24 (C.A.A.F. 1997). If a convening authority disapproves
a finding to cure a legal error, then his action on the sentence “must be guided by
the same [sentence reassessment] rules applicable to appellate authorities.” Reed,
33 M.J. at 99. See generally United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.
2013); United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Therefore, the SJA is
required to provide proper legal guidance to the convening authority about sentence
reassessment. Reed, 33 M.J. at 99-100.

       Because the SJA stated only that “clemency is warranted” when making his
recommendation as to sentence, the SJA “failed to furnish the convening authority
with any analytical method concerning how to adjust the sentence in light of the
error—or, for that matter, concerning how the staff judge advocate himself arrived at
his recommended adjustment.” Id. at 99. “[W]here a staff judge advocate
recommends certain curative action on the sentence, it is imperative that he make
clear to the convening authority the distinction between, on the one hand, curing any
effect that the error may have had on the sentencing authority and, on the other,
determining anew the appropriateness of the adjudged sentence.” Id. at 100 (internal




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KEEN — ARMY 20130473

citation omitted). As a result, we find the SJA’s advice to the convening authority
was erroneous.

       However, under the facts of this case we are confident we can reassess
appellant’s sentence rather than remand the case to the convening authority for a
new action and staff judge advocate recommendation. See Taylor, 47 M.J. 322
(permitting a service court of criminal appeals to reassess a sentence when the staff
judge advocate failed to advise the convening authority of the proper reassessment
standard); Winckelmann, 73 M.J. at 15 (“If the court can determine to its satisfaction
that, absent any error, the sentence adjudged would have been of at least a certain
severity, then a sentence of that severity or less will be free of the prejudicial effects
of error.”).

      In evaluating the Winkelmann factors, we find there is no dramatic change to
the penalty landscape. 73 M.J. at 15-16. As to confinement and discharge,
appellant’s maximum sentence absent the finding of guilty as to Specification 2 of
Charge II included sixteen years and six months and a dishonorable discharge.
Appellant’s adjudged sentence included only a small fraction of the maximum
confinement time permitted and a bad-conduct discharge. Appellant also remains
convicted of another wrongful use of a schedule II controlled substance, forgery,
wrongful appropriation, and several failures to obey a lawful general regulation by
possessing drug paraphernalia. These offenses captured the gravamen of his
criminal conduct. Id. at 16. This court reviews the records of a substantial number
of courts-martial involving the wrongful use of controlled substances, wrongful
possession of drug paraphernalia, forgery, and wrongful appropriation, and we have
extensive experience with the level of sentences imposed for such similar
combinations of offenses under various circumstances. Id. Finally, appellant was
sentenced by a military judge alone. Id.

      We find that even absent the charge of wrongful use of morphine, we are
confident appellant would have received a sentence from the military judge at least
as severe as that approved by the convening authority. See Sales, 22 M.J. 305;
Winckelmann, 73 M.J. 11. We also conclude, pursuant to Article 66, UCMJ, that
such a sentence is appropriate for the remaining guilty findings.

       The findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the errors noted, the entire record, and in accordance with the principles of Sales,
22 M.J. 305, and Winckelmann, 73 M.J. 11, the sentence approved by the convening
authority is AFFIRMED.

      Senior Judge LIND and Judge KRAUSS concur.




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KEEN — ARMY 20130473


                       FOR
                       FOR THE
                           THE COURT:
                               COURT:




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




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