United States v. Private First Class ADAM J. TIMBERLAKE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges UNITED STATES, Appellee v. Private First Class ADAM J. TIMBERLAKE United States Army, Appellant ARMY 20061118 III Corps and Fort Hood (trial) Headquarters, Fort Hood (post-trial) Charles S. Walters, Military Judge Colonel Mark Cremin, Staff Judge Advocate (trial) Lieutenant Colonel Richard W. Rousseau, Staff Judge Advocate (post-trial) For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Fansu Ku, JA; Captain Adam K. Mellor, JA (on brief). For Appellee: Major Elizabeth G. Marotta, JA; Captain W. Todd Kuchenthal, JA; Captain Teresa T. Phelps, JA (on brief). 17 March 2008 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: In our review of the case under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 [hereinafter UCMJ], we agree with appellate defense counsel that the Staff Judge Advocate’s post-trial recommendation (SJAR) inaccurately advised the convening authority that appellant was found guilty of absence without leave, in violation of Article 86, UCMJ, rather than the greater offense of desertion, in violation of Article 85, UCMJ. Unless otherwise indicated in the action, a convening authority approves the findings as stated in the SJAR. See United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994); United States v. Lindsey, 56 M.J. 850, 851 (Army Ct. Crim. App. 2002). The SJAR may contain other documents as enclosures, including the record of trial itself or the Report of Result of Trial[1], to accurately advise the convening authority of the court’s findings and sentence. See generally United States v. Alexander, 63 M.J. 269, 274 (C.A.A.F. 2006) (citing Rule for Courts-Martial [hereinafter R.C.M.] 1107(b)(3)(B)) (“The convening authority may consider other sources of information” beyond those listed in R.C.M. 1107(b)(3)(A)). In this case, we are unable to determine whether the convening authority was aware of the actual findings of the court. Although the Report of Result of Trial correctly described the guilty findings, neither the record of trial nor the Report of Result of Trial are listed in the enclosures provided to the convening authority prior to the initial action. Under the circumstances, we may either affirm the findings of guilty “that are correctly . . . stated in the SJAR, or return the case to the convening authority for a new SJAR and action.” United States v. Henderson, 56 M.J. 911, 913 (Army Ct. Crim. App. 2002) (citing Diaz, 40 M.J. at 345 ); R.C.M. 1107(g). The action of the convening authority, dated 18 May 2007, is set aside. The record is returned to The Judge Advocate General for a new SJAR and action by the same convening authority in accordance with Article 60(c)- (e), UCMJ. Once the convening authority takes action on the case, he shall then return the record of trial to this court for further review. FOR THE COURT: MARY B. CHAPMAN Deputy Clerk of Court ----------------------- [1] Dep’t of Army, Form 4430-R, Report of Result of Trial (Sept. 2002).