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

                           UNITED STATES, Appellee
                                        v.
                            Specialist JOHN W. COX
                          United States Army, Appellant

                                   ARMY 20111136

                             Headquarters, Third Army
                       Reynold P. Masterton, Military Judge
                Colonel Stephanie L. Stephens, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA (on brief).


                                  24 December 2013

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                               SUMMARY DISPOSITION
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Judge HAIGHT:

       A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of one specification of aggravated assault with a loaded
firearm and two specifications of communicating a threat , in violation of Articles
128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, to be confined for twelve months, forfeiture of $978.00 per month for
twelve months, and to be reduced to the grade of E-1. The convening authority
approved the adjudged sentence and credited appellant with sixty-six days of
confinement credit against the sentence to confinement .

       This case is before us for review under Article 66, UCMJ . Appellant raises
three assignments of error to this court, one of which merits discussion and relief.
The relief provided in the decretal paragraph renders moot at this time the first two
assignments of error. Additionally, those matters appellant personally raises
COX— ARMY 20111136

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without
merit.

                              LAW AND DISCUSSION

      In his third assignment of error, appellant presents the following question:

             A CONVENING AUTHORITY IS REQUIRED TO HAVE
             KNOWLEDGE OF THE COURT-MARTIAL FINDINGS
             AS THEY ARE REPORTED TO HIM IN THE STAFF
             JUDGE ADVOCATE’S POST-TRIAL
             RECOMMENDATION. IN THIS CASE, THE STAFF
             JUDGE ADVOCATE’S POST-TRIAL
             RECOMMENDATION DID NOT INCLUDE THE
             COURT-MARTIAL FINDINGS. DOES THIS COURT
             HAVE JURISDICTION OVER SPC COX’S CASE
             UNDER ARTICLE 66(C), UCMJ?

       Because it deals with our jurisdiction to review this case, we will first address
this assignment of error. “In a case referred to it, the Court of Criminal Appeals
may act only with respect to the findings and sentence as appro ved by the convening
authority.” UCMJ art. 66(c). In this case, the convening authority’s action makes
no mention of the findings of the court-martial. Rule for Courts-Martial [hereinafter
R.C.M.] 1107(c) provides that “[a] ction on the findings is not required.” However,
“a convening authority who does not expressly address findings in the action
impliedly acts in reliance on the statutorily re quired recommendation of the [staff
judge advocate (SJA)] and thus effectively purports to approve implicitly the
findings as reported to the convening authority by the SJA.” United States v. Diaz,
40 MJ 335, 337 (C.M.A. 1994) (internal citation omitted).

       Here, neither the staff judge advocate’s recommendation (SJAR) to the
convening authority nor its addendum lists or details the findings adjudged at
appellant’s court-martial, but instead properly relies upon the Result of Trial, listed
as an enclosure on both. In accordance with R.C.M. 1106, the SJAR is required to
contain “a copy of the report of results of the trial, setting for th the findings,
sentence, and confinement credit to be applied.” R .C.M. 1106(d)(3) (emphasis
added). Despite being listed as an enclosure to both the SJAR and its addendum, the
record of trial does not contain the standard DA Form 4430 Report of Result of Trial
or any document purporting to be a suitable substitute that could have been used to
inform the convening authority as to the adjudged findings.

      To this point in time, government appellate counsel has not provided this
court with the report of results of the trial, a copy thereof, or any evidence that the
convening authority had the benefit of such a document when he took action.



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COX— ARMY 20111136

Therefore, not only are we unable to determine whether the convening authority was
aware of the actual findings of the court, but we do not know what findings were
approved. It follows that we have no jurisdiction to affirm any findings in this case
and must return it for a new review and action. See United States v. Henderson, 56
M.J. 911, 913 (Army Ct. Crim. App. 2002).

       Based on our resolution of the third assignment of error, the other
assignments are not ripe at this time. * Specifically, all parties at trial agreed that
appellant’s threats were “part and parcel” of the aggravat ed assault. In light of the
Manual for Courts-Martial’s explanation regarding certain assault scenarios that
when “threatening words are accompanied by a menacing act or gesture, there may
be an assault, since the combination constitutes a demonstration of violence,” we
may very well be inclined to view the simultaneously committed offenses of assault
by offer and communication of a threat as appropriate for merger. Manual for
Courts-Martial, United States (2012 ed.), pt. IV, ¶54.c(1)(c)(ii) (emphasis added).
However, as stated above, we do not know what findings currently stand approved
and available for such an action. Accordingly, it is necessary and appropriate for
the convening authority to first address this issue within his sound discretion .

                                   CONCLUSION

      The convening authority’s initial action, dated 24 May 2012, is set aside. The
record of trial is returned to The Judge Advocate General for a new staff judge
advocate recommendation and a new action by the same or different convening
authority in accordance with Article 60(c) -(e), UCMJ.




      Senior Judge COOK and Judge CAMPANELLA concur.



*
 I. AS CHARGED, COMMUNICATING A THREAT AND AGGRAVATED
ASSAULT (BY OFFER) HAVE IDENTICAL ELEMENTS, EXCEPT FOR THE
ARTICLE 134, UCMJ TERMINAL ELEMENT. SPC COX PLED GUILTY TO
ASSAULT BY OFFER AND THREATENING SPC THOMPSON AND THE
MILITARY JUDGE GRANTED A MOTION TO MERGE THE CHARGES FOR
SENTENCING. WAS SPC COX PREJUDICED WHEN THE MILITARY JUDGE
FAILED TO DISMISS THE COMMUNICATING A THREAT SPECIFICATIONS
AS AN UNREASONABLE MULTIPLICATION OF CHARGES:

II. SPECIALIST COX’S SENTENCE TO A BAD-CONDUCT DISCHARGE IS
INAPPROPRIATELY SEVERE.



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                         FOR THE COURT:




                         ANTHONY O. POTTINGER
                         Chief Deputy Clerk of Court




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