UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Staff Sergeant JOSHUA D. SMITH
                          United States Army, Appellant

                                   ARMY 20160307

              Headquarters, 1st Special Forces Command (Airborne)
                         Deidra Fleming, Military Judge
       Lieutenant Colonel Terri J. Erisman, Staff Judge Advocate (pretrial)
    Lieutenant Colonel Scott T. Ayers, Staff Judge Advocate (recommendation)
        Major Nathan J. Bankson, Acting Staff Judge Advocate (addendum)

For Appellant: Captain Joshua B. Fix, JA; Philip D. Cave, Esquire (on brief and
supplemental brief); Captain Zachary A. Gray, JA; Philip D. Cave, Esquire (on reply
brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Marc B. Sawyer, JA; Captain
Jonathan S. Reiner, JA (on brief).

                                      18 June 2018

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of aggravated sexual assault of a child,
one specification of abusive sexual contact of a child, three specifications of
indecent liberties with a child, two specifications of assault consummated by a
battery upon a child under the age of 16, one specification of assault consummated
by battery, and one specification of communicating a threat, in violation of Articles
120, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and
934 (2006 & Supp. I 2008) [UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for nine years, and reduction to the grade of E-
1. The convening authority (CA) approved the sentence, but credited appellant with
120 days against confinement for dilatory post-trial processing. See United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006).
SMITH—ARMY 20160307

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two issues, one of which, involving proper credit for illegal pretrial
punishment, merits discussion and relief. 1 Appellant correctly asserts the CA’s
action failed to properly credit appellant forty-five days for Article 13, UCMJ credit.
Therefore, we provide appellant forty-five days confinement credit in our decretal
paragraph. We have considered the matters personally asserted by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they
lack merit.

                                     DISCUSSION

      After reviewing the record of trial, we would have summarily affirmed
appellant’s conviction but for the multiple errors by the Staff Judge Advocate’s
(SJA) office in preparing the action in this case for the CA. 2

        Prior to trial, appellant was placed in pretrial restraint under Rule for Court-
Martial [R.C.M.] 304 in the form of conditions on his liberty. At trial, trial and
defense counsel agreed that appellant should receive forty-five days of confinement
credit for a violation of Article 13, UCMJ, and the military judge so awarded this
relief upon announcement of the sentence. The credit was properly noted in the
initial Staff Judge Advocate Recommendation (SJAR). Subsequently, appellant


1
  We considered but find no merit in appellant’s other assigned error which asserts
the evidence is legally and factually insufficient to support the findings of guilty for
the Article 120, UCMJ, offenses involving his stepdaughter, Ms. SH. At trial,
appellant focused on the credibility of Ms. SH. The defense theory of the case
included that Ms. SH had a reputation for being untruthful, fabricated the allegations
to assist her mother’s divorce, and was coached in her testimony. The defense
impeached Ms. SH though prior inconsistent pretrial statements to her family,
investigators, and counsel. Despite these claims, we find a reasonable factfinder,
viewing the evidence in the light most favorable to the prosecution, could find all of
the essential elements of these offenses. See Jackson v. Virginia, 443 U.S. 307, 319,
61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Having reviewed the entire record,
recognizing that the trial judge saw and heard the witnesses, and applying the
framework of our superior court’s decision in United States v. Washington, 57 M.J.
394, 399 (C.A.A.F. 2002), we likewise are convinced of appellant’s guilt beyond a
reasonable doubt. Based on the entire record, we find Ms. SH was credible, did not
fabricate the allegations, and was consistent on the key details of the charged
offenses.
2
  We also note the promulgating order, among other errors, improperly reflected the
wrong date for the CA’s action as well as the date the sentence was announced. The
Court will separately issue a Notice of Court-Martial Order Correction to remedy
these errors.


                                            2
SMITH—ARMY 20160307

requested in his Rules for Courts-Martial 1105 and 1106 matters a reduction of his
sentence for dilatory post-trial processing. In the SJA addendum, the SJA agreed
there was an unreasonable delay, and recommended “120 days confinement credit
should be granted on the basis of post-trial delay.” However, the addendum failed to
advise the CA that the appellant should have been be credited forty-five days for the
Article 13 violation and the CA’s action was silent as to this credit. On appeal, the
government concedes the initial action was incorrect.

       While conducting our Article 66(c) review we noticed an additional error in
the CA’s action. Namely, the CA’s initial action failed to account for the prior
deferral of the automatic forfeitures and adjudged and automatic reduction in grade
prior to action, and waiver of automatic forfeitures after action, 3 as directed in Army
Reg. 27-10, Legal Services: Military Justice, para. 5-32 (11 May 2016).

      In the interest of judicial economy, this court takes corrective action in the
decretal paragraph. See United States v. Adney, 61 M.J. 554, 557 (Army Ct. Crim.
App. 2005).

                                   CONCLUSION

       Upon consideration of the entire record, we AFFIRM the findings of guilty.
We AFFIRM only so much of the sentence as extends to a dishonorable discharge,
confinement nine years, and reduction to the grade of E-1. The convening authority
deferred automatic forfeitures and reduction in grade from 13 May 2016 until initial
action on 2 February 2017. Upon taking action on 2 February 2017 the convening
authority waived automatic forfeiture of pay and allowances required under Article
58b, UCMJ, for a period of six months and directed the disbursement of the waived
forfeitures, by allotment, as follows: one allotment for $800 to CH on behalf of
appellant’s biological son, D, and the remainder in a separate allotment to Mrs. MS.
Appellant will be credited with 165 days confinement against the sentence to
confinement.

       All rights, privileges, and property, of which appellant has been deprived by
virtue of this decision are ordered restored. See UCMJ 58a(b), 58b(c), and 75(a).

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:



                                       JOHN
                                        JOHNP.P.
                                               TAITT
                                                  TAITT
                                       Chief
                                        ChiefDeputy
                                              DeputyClerk of Court
                                                       Clerk  of Court

3
  On 15 July 2016, the CA separately deferred the adjudged reduction, automatic
reduction, and automatic forfeitures until initial action. The CA waived the
automatic forfeitures for six months after action.


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