United States v. Private E1 JACOB B. KILGORE

• Court: Army Court of Criminal Appeals
• Decided: August 28, 2008
• Docket: ARMY 20070941
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before ZOLPER, COOK, and BAIME Appellate Military Judges

UNITED STATES, Appellee v. Private E1 JACOB B. KILGORE United States Army, Appellant

ARMY 20070941

Headquarters, 1st Infantry Division and Fort Riley John P. Saunders, Military Judge Colonel Scott W. Arnold, Staff Judge Advocate

For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain W. Jeremy Stephens, JA (on brief).

For Appellee: Colonel Denise R. Lind, JA; Major Lisa L. Gumbs, JA; Major Donna E. Leavitt, JA (on brief).

28 August 2008

----------------------------------------- SUMMARY DISPOSITION ----------------------------------------- Per Curiam:

Appellant was convicted by a military judge sitting as a general court-marital, pursuant to his pleas, of conspiracy to commit larceny over $500.00, failure to repair, absence without leave, willfully disobeying a superior commissioned officer, false official statement (two specifications), larceny of a value over $500.00, forgery, and breaking restriction, in violation of Uniform Code of Military Justice [hereafter UCMJ], Articles 81, 86, 90, 107, 121, 123 and 134; 10 U.S.C. §§ 881, 886, 890, 907, 921, 923, and 934 (2005). We agree with appellate counsel that appellant suffered illegal post-trial confinement.[1] While we affirm the findings of guilty and the sentence[2], we also order that the appellant receive twenty-eight days of pay and allowances at the grade of E1 to compensate appellant for twenty-eight days of illegal post-trial confinement. See United States v. Hammond, 61 M.J. 676, 678 (Army Ct. Crim. App. 2005).

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] Government appellate counsel agree that the appellant suffered twenty- eight days of illegal post-trial confinement from 6 November through 4 December 2007, and that financial remuneration is the appropriate remedy. However, government appellate counsel argue that because the appellant received full pay and allowances from 6 November to 20 November 2007, due to the convening authority deferring automatic forfeitures, appellant should only receive fourteen days of full pay and allowances for the period of 21 November through 4 December to avoid overpaying appellant. We disagree and find the convening authority’s independent act of deferring forfeitures unrelated to the issue of providing appellant a remedy for suffering illegal post-trial confinement.

[2] 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 them to be encompassed by the appellant’s asserted assignment of error regarding illegal post-trial confinement.