
                UNITED STATES ARMY COURT OF CRIMINAL APPEALS

                                   Before
                        HOLDEN, HOFFMAN, and SULLIVAN
                          Appellate Military Judges

                           UNITED STATES, Appellee
                                     v.
                        Specialist FLEMING A. VALERIO
                        United States Army, Appellant

                                ARMY 20071037

                    Headquarters, 25th Infantry Division
                       Julie Hasdorff, Military Judge
             Colonel Timothy J. Pendolino, Staff Judge Advocate


For Appellant:  Major Bradley M. Voorhees, JA; Captain Sarah E. Wolf, JA
(on brief).

For Appellee:  Pursuant to A.C.C.A.  Rule 15.2, no response filed.


                               9 January 2009

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

Per Curiam:


      Upon review under Article 66, Uniform Code of Military Justice, 10
U.S.C. §866 [hereinafter UCMJ], of the case submitted on its merits, we
note that, although the Specification of the Charge alleged appellant
intentionally injured himself by placing his legs under a M1114HMMWV, the
evidence only supports a finding appellant placed one leg, rather than
both, under the vehicle.  Accordingly, we amend the finding of guilty in
the Specification of the Charge to correspond to the evidence.  The
Specification as amended now reads as follows:


           In that Specialist (E-4) Fleming A. Valerio, U.S. Army, did, at
           or near Forward Operating Base Sykes, Iraq, in a hostile fire
           pay zone, on or about 29 January 2007, for the purpose of
           avoiding service as an enlisted person intentionally injure
           himself by placing his leg underneath a M1114HMMWV, in order to
           break it.


      Reassessing the sentence of the basis of the error noted and the
entire record, applying the principles of United States v. Sales, 22 M.J.
305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
including Judge Baker’s concurring opinion, the finding as amended and
sentence are affirmed.

                                  FOR THE COURT:



                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court
