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

                            UNITED STATES, Appellee
                                         v.
                      Sergeant DEAN B. VALLEJO-PACHECO
                           United States Army, Appellant

                                      ARMY 20120450

                               Headquarters, I Corps
                    David L. Conn, Military Judge (arraignment)
                        Kwasi Hawks, Military Judge (trial)
              Colonel Kurt A. Didier, Staff Judge Advocate (pretrial)
         Lieutenant Colonel John T. Rothwell , Acting Staff Judge Advocate
                                (recommendation)
           Colonel William R. Martin, Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieuten ant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).

                                      27 February 2014

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of larceny of property of a value more than $500 (two
specifications), forgery (two specifications), and communication of a threat, in
violation of Articles 121, 123, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 921, 923, 934 [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge and confinement for twenty-eight months. Pursuant to a
pretrial agreement, the convening authority approved only so much of the sentence
as provided for the bad-conduct discharge and confinement for thirteen months. The
accused was properly credited with 155 days against his sentence to confinement.
VALLEJO-PACHECO — ARMY 20120450

       This case is before us for review pursuant to Article 66, U CMJ. Appellant
raises two assignments of error, both of which merit discussion and relief. Those
errors are the lack of legal efficacy of a forged U.S. Army Leave and Earnings
Statement (LES) and dilatory post-trial processing. The matters raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are without
merit.

                                    DISCUSSION

                     The Forged Leave and Earnings Statement

       In September 2010, in order to fraudulently obtain money, appellant went
online and applied for a $6,000.00 loan in the name of his estranged brother, who is
a civilian, from Pioneer Services Midcountry Bank . In support of that request,
appellant submitted an LES, which he had falsely made. This fake LES purported to
be that of appellant’s brother, included his brother’s social security number, and
falsely identified the brother as an O-3 in the U.S. Army with a monthly pay of
$8,902.30. The brother did not authorize appellant to use his name or apply for a
loan on his behalf nor did appellant intend on sharing any of the ill -gotten money
with his brother. For this misrepresentation, appellant was charged w ith forgery of
the LES under Article 123, UCMJ.

       During the providence inquiry concerning this forgery, the military judge
inquired whether the creation of a false LES imposes legal liability on another as
required by the statute. In response, the defense counsel replied:

             I would say the ‘but for’ test would be applicable here; but
             for [appellant] providing those supporting documents, the
             loan never would have been accepted . . . . In order for
             this loan to go through, I’ve got to create the supporting
             documentation in order to provide to Pioneer Services in
             this case, so that they fully buy off on the fact that this is
             legit.

       Appellant, the government, and the military judge all concurred in this
analysis, appellant’s plea was accepted, and he was conv icted of this specification.
Appellant now complains that the forged LES did not have the required legal
efficacy and therefore was not the proper subject of forgery under Article 123,
UCMJ. The government concedes this point, and we accept the concessio n.

        Forgery under Article 123, UCMJ, requires a false “writing which would, if
genuine, apparently impose a legal liability on another or change his legal right or
liability to his prejudice.” UCMJ art. 123. However, “[t]he mere making of a false
signature or other entry on a document is not, in itself, sufficient to constitute
forgery; the apparent nature of the document is critical.” United States v. Thomas,


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VALLEJO-PACHECO — ARMY 20120450

25 MJ 396, 398 (C.M.A. 1988). This case is similar to the facts in Thomas. Id. In
that case, in an attempt to obtain a loan, the accused forged a credit reference form
known as a “Commanding Officer’s Letter.” Id. at 397. Our superior court found
that the forged supporting document, which the lender was free to completely ignore
if it so chose, did not, “by itself or in conjunction with anything else, purport” to
establish any entitlement or assert any obligation or duty. Id. at 402. We find the
fabricated LES here to be analogous to the fabricated letter of reference in Thomas.
Accordingly, we will dismiss the forgery offense charged in Specification 2 of
Charge II.

                             Dilatory Post-Trial Processing

       Appellant asserts relief is warranted because it took 2 88 days, 245 of them
attributable to the government, from trial to convening authority action in a case
with only a ninety-seven page record of trial. While certainly each stage along the
way of the post-trial process is important and the circumstances are viewed in their
totality, in this case, our concern is focused on one particular event, the
authentication of the record of trial. Transcription of the record was complete d on
16 August 2012. Substitute authentication by the trial counsel occurred almost four
months later on 5 December 2012.

       Included in the record is a memorandum for record by the Senior Military
Court Reporter, explaining why substitute authentication was required . Basically,
the trial judge  was nearing retirement so arrangements were made and agreed upon
for him to receive and authenticate records in a timely fashion. Those arrangements
resulted in profound failure.

       Between 21 July 2012 and 27 November 2012, numerous records of trial , to
include appellant’s, were sent to this military judge. The military judge was “texted,
called, and emailed on numerous times about completion of his reviews of these
records of trial all without results.” Additionally, the Chief Circuit Judge
communicated with the military judge regarding this issue, yet no records of trial
were authenticated as of 27 November 2012. The military judge r etired, was
unavailable, and this record was accordingly authenticated by the trial counsel,
albeit belatedly. We find that tolerating the specific post-trial processing found in
this case “would adversely affect the public’s perception of the fairness and integrity
of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006). Therefore, we will grant relief.





    As distinguished from the military judge who presided over arraignment.



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VALLEJO-PACHECO — ARMY 20120450

                                   CONCLUSION

       On consideration of the entire record and the assigned error s, the finding of
guilty of Specification 2 of Charge II is set aside and that Specification is dismissed.
The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error s noted and do so
after conducting a thorough analysis of the totality of the 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).

        First, appellant remains convicted of the larceny which was ultimately
accomplished by means of the forgery now set aside. So, appellant’s convictions
still capture the gravamen of his originally charged misconduct, and the
circumstances surrounding appellant’s forgery remain admissible with respect to the
remaining offense. Second, appellant pleaded guilty in a judge -alone court-martial.
Finally, appellant benefitted from a relatively favorable pretrial agreement and its
corresponding sentence limitation.

       Accordingly, we AFFIRM only so much of the sentence as provides for a bad-
conduct discharge and confinement for eleven months. 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 and sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).

      Senior Judge COOK and Judge CAMPANELLA concur.

                                        FOR  THE
                                        FOR THE   COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES,
                                        MALCOLM              JR.
                                                       H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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