United States v. Staff Sergeant BYRON D. TYSON

• Court: Army Court of Criminal Appeals
• Decided: February 2, 2011
• Docket: ARMY 20090072
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges

UNITED STATES, Appellee v. Staff Sergeant BYRON D. TYSON United States Army, Appellant

ARMY 20090072

Headquarters, U.S. Army Basic Combat Training Center of Excellence and Fort Jackson Kirsten Brunson, Military Judge Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; Major Sean S. Park, JA (on brief); Captain Shay Stanford, JA; Captain Brent A. Goodwin, JA (on supplemental pleading).

For Appellee: Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA; Captain Joshua W. Johnson, JA (on brief).

2 February 2011

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of five specifications of violating a general order; one specification each of wrongful sexual contact, committing an indecent act and sodomy; and three specifications of adultery, in violation of Articles 92, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 925, and 934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to the grade of E1.

Appellant raises one assignment of error: the staff judge advocate’s post-trial recommendation (SJAR) provided the convening authority with incorrect information regarding appellant’s offenses. This allegation of error warrants discussion, but no relief.

The result of trial was included as an enclosure to the SJAR. The result of trial, in describing the specifications to which appellant pled guilty regarding Charges I, III, and IV, did not include the language that appellant violated each of these offenses and specifications “on divers occasions.” However, the descriptions of the offenses and findings are sufficient, as they provide a general depiction of the offenses. Accordingly, the assignment of error is without merit. United States v. Alexander, 63 M.J. 269 (C.A.A.F. 2006).

Additionally, though not raised as an assignment of error, we note that the result of trial inaccurately states Specifications 2 and 6 of Charge I and Specifications 1 and 2 of Charge II were dismissed on motion of the trial counsel prior to findings. In fact, when informed by trial counsel that the government would not present evidence on those specifications to which appellant pled not guilty, the military judge entered findings of not guilty to those specifications. The incorrect information in the result of trial did not result in prejudice to appellant and the promulgating order correctly indicates that appellant was found not guilty of those specifications.

On consideration of the entire record, including consideration of the issues personally specified by the appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court