United States v. Private E2 ALEXANDER L. JOHNSON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and CONN Appellate Military Judges UNITED STATES, Appellee v. Private E2 ALEXANDER L. JOHNSON United States Army, Appellant ARMY 20080445 82d Airborne Division Patrick J. Parrish, Military Judge Lieutenant Colonel William A. Schmittel, Acting Staff Judge Advocate (pretrial) Lieutenant Colonel Gregg A. Engler, Acting Staff Judge Advocate (recommendation) Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (addendum) Lieutenant Colonel Paul S. Wilson, Staff Judge Advocate (forfeiture request) For Appellee: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller; JA; Major Grace M. Gallagher, JA; Captain Alison L. Gregoire, JA (on brief). For Appellant: Lieutenant Colonel Francis C. Kiley, JA; Captain Claire L. O’Shaughnessy, JA (on brief). 13 May 2009 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, contrary to his plea, of desertion with intent to avoid hazardous duty, in violation of Article 85, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 885 . The military judge sentenced appellant to reduction to a bad-conduct discharge, confinement for six months, and reduction to Private E1. This case is before us for review pursuant to Article 66, UCMJ. We have carefully considered appellant’s assertion that the convening authority’s intent to first defer and then waive mandatory forfeitures under Article 58a, UCMJ, was “frustrated” because the Staff Judge Advocate (SJA) prepared a form which only offered the option to approve or disapprove simultaneous deferral and waiver of forfeitures. The record demonstrates appellant sought only waiver of mandatory forfeitures for the benefit of his family and not deferral of forfeitures for his own benefit, but received both. Consequently, appellant’s assignment of error merits no relief. In apparent consideration of evidence regarding appellant’s family situation, the military judge did not sentence appellant to any financial forfeiture. Further, the military judge added after announcing sentence: “The court strongly recommends that the pay which is forfeited by law be paid to the accused’s wife for the maximum period authorized.” Two days later, appellant’s defense counsel noted the military judge’s recommendation in a memorandum to the convening authority (CA): “On behalf of [appellant,] I respectfully request that you defer and waive his automatic forfeitures of pay and allowances under Article 58b, UCMJ and direct his pay be given to his 18 year-old wife and two young children. . . .” The request concluded by stating, “For the above reasons, I respectfully request that you waive his automatic forfeitures of pay and allowances for the maximum period of 6 months, under Article 58b, and direct his pay be given to his young wife and two children.” The SJA prepared a decision memorandum for the CA properly outlining the legal options regarding deferral and waiver of forfeitures.[1] The memorandum included options for the CA to disapprove or approve deferral and waiver of forfeitures, effective on the same day mandatory forfeitures would take effect pursuant to Article 58b, UCMJ. The record does not support the supposition that the convening authority intended to first defer and then waive forfeitures, or that appellant or his counsel actually requested such action. While the defense counsel initially used the phrase “defer and waive” in his request, he framed the request solely for the benefit of appellant’s wife and children.[2] Obviously, the CA could not direct deferred forfeitures be paid to appellant’s family. See United States v. Adney, 61 M.J. 554, 556 (Army Ct. Crim. App. 2005). Further, mandatory forfeitures may only be “waived” when paid directly to dependents. See Article 58b(b), UCMJ. We hold the SJA’s decision memorandum to the CA properly addressed deferral and waiver and allowed the CA to elect whether to waive appellant’s mandatory forfeitures of Article 58a, UCMJ, for the benefit of his family. Waiver of forfeitures clearly was appellant’s intent, reflected both by the memorandum requesting waiver and appellant’s R.C.M. 1105 submissions, in which he thanked the CA for granting the waiver. The post-trial submissions were notably silent on any error regarding deferral of forfeitures. Even if error existed, appellant was not prejudiced. We note appellant received both deferral and waiver in this case. See Article 59, UCMJ. Further, given appellant’s short six month sentence, it is unlikely he would have been able to receive both deferral and the requested six month waiver of forfeitures before release from confinement, which would have terminated his right to any pay and allowances. See United States v. Morales, 65 M.J. 665, 667 (Army Ct. Crim. App. 2007). Therefore, appellant has failed to show the requisite prejudice to his substantial rights necessary to grant the relief he requests. United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998). CONCLUSION On consideration of the entire record, including the assignment of error and matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of guilty and the sentence are affirmed. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] The memorandum erroneously stated appellant was tried by a special court-martial, but we find no prejudicial error in this misstatement. [2] However imprecise the language used by counsel may be, even an obviously superfluous request to both “defer and waive” obligates an SJA to obtain the CA’s specific action on deferral. See Rule for Courts-Martial [hereinafter R.C.M.] 1101(c)(3); United States v. Sloan, 35 M.J. 4, 6-7 (C.M.A. 1992).