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

                           UNITED STATES, Appellee
                                        v.
                        Specialist LARRY G. LOVELL, JR.
                          United States Army, Appellant

                                      ARMY 20111006

                      Headquarters, III Corps and Fort Hood
                         Patricia H. Lewis, Military Judge
         Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate


For Appellant: Major Candace N. White-Halverson (argued); Colonel Patricia A.
Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Major Candace N. White Halverson (on brief); Colonel Kevin Boyle, JA; Major Amy
E. Nieman, JA; Major Candace N. White-Halverson, JA (on brief on specified
issues). Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA;
Major Amy E. Nieman, JA; Major Candace N. White-Halverson, JA (on reply brief
on request for reconsideration)

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major Catherine L. Brantley, JA; Captain
Daniel M. Goldberg, JA (on brief); Colonel John P. Carrell, JA; Major Robert
Rodrigues, JA; Major Catherine L. Brantley, JA; Captain Daniel M. Goldberg, JA
(on brief on specified issues); Colonel John P. Carrell, JA; Lieutenant Colonel James
L. Varley, JA; Major Catherine L. Brantley (on request for reconsideration)


                                         30 May 2014

                  -----------------------------------------------------------------
                   SUMMARY DISPOSITION ON RECONSIDERATION
                  -----------------------------------------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of desertion with intent to shirk important service, absence
without leave, and missing movement by design, in violation of Articles 85, 86, and
87 of the Uniform Code of Military Justice, 10 U.S.C. §§ 885, 886, and 887
[hereinafter UCMJ]. After entry of findings, an officer panel sentenced appellant to
a bad-conduct discharge, confinement for six months, and reduction to the grade of
LOVELL — ARMY 20111006

E-1. The convening authority approved the sentence as adjudged and awarded
appellant with nine days of confinement credit.

      On 31 March 2014, we issued an opinion in this case wherein we affirmed
findings of guilty for desertion with intent to shirk important service and absence
without leave. As to Charge III and its Specification, missing movement by design,
we affirmed a finding of guilty to the lesser included offense of missing movement
through neglect. We then reassessed the sentence and affirmed a sentence of no
punishment.

       On 30 April 2014, the government asked this court to reconsider our opinion
and suggested reconsideration by the court en banc. Appellant based this request on
the court’s alleged misapplication of law regarding the remedy provided for the
errors found in this case. The government asserts the military judge’s abuse of
discretion in granting a government causal challenge against a member solely on the
basis of the panel member’s status as a conscientious objector resulted in a “null and
void” panel sentence. The government asserts this court was, therefore, left with no
sentence for our court to reassess and hence, improperly sentenced appellant rather
than reassessed the sentence.

       On 14 May 2014, appellant filed a response to the government’s motion to
reconsider, arguing that the sentence was not null and void. Appellant argues that
this court’s previous reassessed sentence was appropriate and a proper exercise of
our statutory authority.

       Appellant’s suggestion for reconsideration by the court en banc is not
adopted. Appellant’s request for reconsideration, however, is granted. Contrary to
appellant’s assertion, we find that the sentence provided by the panel, based on the
facts before us, while tainted by error, was not and is not null and void.

       We leave undisturbed our original opinion and AFFIRM the findings of guilty
for Charge I and its Specification and Charge II and its Specification. As to Charge
III and its Specification, we again AFFIRM a finding of guilty to the lesser included
offense of missing movement through neglect.

       In consonance with our original opinion, we reassess the sentence based on
the noted errors and the amended findings of guilty. We are able to reassess the
sentence on the basis of the errors 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 the first factor
weighs in favor of the appellant in that there is no dramatic change in the penalty
landscape or exposure that might cause us pause in reassessing appellant’s sentence.
The second factor weighs in favor of the government in that appellant was sentenced


                                          2
LOVELL — ARMY 20111006

by a panel. We find the nature of the remaining offenses captures the 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.   

      Accordingly, we AFFIRM a sentence of no punishment.

       We find this purges the errors in accordance with United States v. Sales, 22
M.J. 305 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.
2013). “If the court can determine to its satisfaction that, absent any error, the
sentence adjudged would have been at least or certain severity, than a sentence of
that severity or less will be free of the prejudicial effects of error,” Sales, 22 M.J. at
308 (emphasis added). This sentence is also appropriate under Article 66(c), UCMJ.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings and sentence set aside by our decision, are ordered
restored.

      Senior Judge COOK and Judge HAIGHT concur.

                                         FORTHE
                                        FOR  THE COURT:
                                                COURT:



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




                                            3
