United States v. Private First Class DONALD J. SPEAKMAN

• Court: Army Court of Criminal Appeals
• Decided: January 29, 2009
• Docket: ARMY 20070951
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before SULLIVAN, COOK, BAIME Appellate Military Judges

UNITED STATES, Appellee v. Private First Class DONALD J. SPEAKMAN United States Army, Appellant

ARMY 20070951

Headquarters, Joint Task Force Guantanamo Peter E. Brownback III, Military Judge Captain Patrick M. McCarthy, USN, Staff Judge Advocate

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Teresa L. Raymond, JA; Major Leonard W. Jones, JA.

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA; Captain Anthony O. Pottinger, JA.

29 January 2009

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

Per Curiam:

Appellant was convicted, pursuant to his pleas, of conspiracy to commit an assault, assault, adultery, and providing alcohol to minors (two specifications), in violation of Articles 81, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 928, and 934, respectively. The case is before us for review pursuant to Article 66, UCMJ, and appellant raises several issues relating to errors in the post- trial processing of his case. The record of trial (ROT), including allied papers, forwarded for our review was poorly prepared and missing many of the documents required by Rule for Court-Martial [hereinafter R.C.M.] 1103(b)(3). Government counsel has commendably filled much of the void with its appellate exhibits, but has been unable to provide any evidence that either appellant or trial defense counsel was served with the staff judge advocate’s post-trial recommendation (SJAR) prepared under R.C.M. 1106. Appellant complains, inter alia, that the SJAR fails to list fully all awards and decorations, and asserts it was not served on either appellant or his defense counsel for comment or correction prior to the convening authority taking action. Appellant has submitted a supporting affidavit from trial defense counsel on the failure to serve and on the corrective action trial defense counsel would have taken had the inaccurate SJAR been served. Although the government contends the SJAR omitted only “comparatively minor” awards,[1] government counsel join with appellant and agree the ROT should be returned for a new SJAR and action in light of the government’s failure to serve the SJAR on appellant and his defense counsel. See United States v. Williams, 57 M.J. 1, 3 (C.A.A.F. 2002) (where SJAR not served on trial defense counsel prior to action, low threshold of “colorable showing of possible prejudice” met by trial defense counsel’s sworn declaration on comments he would have made as to omissions in the SJAR). We will do as both parties request.

The convening authority’s initial action, dated 7 December 2007, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR and a new initial action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.[2]

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court

----------------------- [1] We are not necessarily convinced the omitted Global War on Terrorism (GWOT) Expeditionary Medal is “comparatively minor,” reflecting as it does an overseas deployment in direct support of GWOT Operations. See Exec. Order No. 13289, 68 Fed. Reg. 12,567 (Mar. 12, 2003) (establishing the GWOT expeditionary and the GWOT service medals); Army Reg. 600-8-22, Personnel- General: Military Awards, para. 2-18 (11 December 2006). Government counsel, however, question whether appellant was entitled to wear the GWOT Expeditionary Medal in the first place, noting that Cuba is not listed as a geographical location for award entitlement. We need not, however, resolve the issue to decide on appropriate relief.

[2] The new action should reflect, inter alia, the correct plea to the Specification of Charge III, the correct UCMJ article of Charge V, and the language in Specifications 3 and 4 of Charge V, subsequently amended, on which appellant was arraigned.