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

                            UNITED STATES, Appellee
                                        v.
                        Private E1 ROBERT L. DAVIS, JR.
                          United States Army, Appellant

                                      ARMY 20120244

                      Headquarters, III Corps and Fort Hood
                        Gregory A. Gross, Military Judge
   Colonel Richard W. Rousseau, Acting Staff Judge Advocate (recommendation)
            Colonel Tania M. Martin, Staff Judge Advocate (addendum)


For Appellant: Major Robert N. Michaels, JA; Captain Brian J. Sullivan, JA
(on brief).

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


                                         25 June 2014

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

CAMPANELLA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of desertion terminated by apprehension
in violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885 (2006)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for three months, and forfeiture of $994.00 pay
per month for three months. Appellant was credited with 11 days against his
sentence to confinement.

       On 29 July 2013, this court issued an opinion affirming only so much of the
findings of guilty for Specification 2 of The Charge as found appellant guilty of
desertion (not terminated by apprehension). We affirmed the remaining findings of
guilty and the sentence approved by the convening authority.
DAVIS—ARMY 20120244

      On 2 January 2014, the United States Court of Appeals for the Armed Forces,
pursuant to Article 67, UCMJ, set aside this court’s decision and the convening
authority’s action and ordered a new recommendation and action to address defense
counsel’s failure to request deferment of forfeitures despite appellant’s request to do
so.

        On 24 April 2014, with the benefit of a new recommendation, a new
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for three months, and forfeiture of $994.00 pay per month for three
months. He also deferred adjudged and automatic forfeitures consistent with
appellant’s request. Appellant was again credited with 11 days of confinement
credit.

        This case is again before us for review under Article 66, UCMJ. This case
was submitted on its merits and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the matters raised
by appellant to be without merit. We find, however, one issue remains unresolved.
The convening authority did not address the issue of factual insufficiency as to the
element of termination by apprehension in Specification 2 of The Charge that we
initially identified in our 29 July 2013 opinion.

      For the same reasons previously stated in this court’s opinion, we affirm only
so much of the findings of guilty of Specification 2 of The Charge as finds that
appellant:

             Did, on or about 16 May 2011, without authority and with the
             intent to remain away therefrom permanently, absent himself
             from his unit, to wit: 1st Battalion, 7th Cavalry Regiment
             (Rear)(Provisional), 1st Brigade Combat Team
             (Rear)(Provisional), 1st Cavalry Division (Rear)(Provisional),
             located at Fort Hood, Texas, and did remain so absent in
             desertion until on or about 9 November 2011.

      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) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure. Second, appellant was tried and sentenced by a
military judge. Third, we find the nature of the remaining offenses still captures the


                                           2
DAVIS—ARMY 20120244

gravamen of the original offenses. Finally, based on our experience, we are familiar
with the remaining offenses so that we may reliably determine what sentence would
have been imposed at trial.

       Reassessing the sentence based on the noted errors, we AFFIRM the approved
sentence. 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.

      Senior Judge COOK and Judge HAIGHT concur.

                                       FOR THE COURT:
                                        FOR THE COURT:



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




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