United States v. Sergeant MICHAEL J. SMITH

• Court: Army Court of Criminal Appeals
• Decided: October 27, 2008
• Docket: ARMY 20060541
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Sergeant MICHAEL J. SMITH United States Army, Appellant

ARMY 20060541

United States Army Military District of Washington John W. Rolph and Paul H. McConnell, Military Judges Colonel Sarah S. Green, Staff Judge Advocate (pretrial) Colonel William T. Barto, Staff Judge Advocate (recommendation) Lieutenant Colonel Patricia H. Lewis, Staff Judge Advocate (addendum)

For Appellant: Captain Alison L. Gregoire, JA (argued); Lieutenant Colonel Jonathan F. Potter, JA; Captain Alison L. Gregoire, JA (on brief).

For Appellee: Michael G. Pond, JA (argued); Colonel Denise R. Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Lisa L. Gumbs, JA; Michael G. Pond, JA (on brief).

27 October 2008

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

Per Curiam:

Appellant was a military police dog handler at the Baghdad Central Confinement Facility at Abu Ghraib, Iraq. After appellant was convicted, contrary to his pleas, of several offenses including assault (Specification 3 of Charge IV), the military judge dismissed that assault specification as an unreasonable multiplication of charges. Although the promulgating order correctly reflects the dismissal, the Staff Judge Advocate's Recommendation (SJAR) made pursuant to Rule for Court-Martial 1106 reflects the initial finding of guilty but not the subsequent dismissal. Conversely, while appellant was found guilty of dereliction of duty (Charge III and its specification), the SJAR and promulgating order erroneously indicate that charge was dismissed. Consistent with United States v. Alexander, we dismiss Charge III and its specification and Specification 3 of Charge IV "in the interest of efficient administration of justice." 63 M.J. 269, 275 (C.A.A.F. 2006) (quoting United States v. Diaz, 40 M.J. 335, 343 (C.M.A. 1994) (disapproving findings omitted from the SJA's recommendation and affirming the balance of the findings where such actions would not prejudice appellant). We have considered the other assignments of error as well as those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.

The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, including Judge Baker's concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court