UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            SIMS, COOK, and GALLAGHER
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist JEFFREY D. SMITH
                          United States Army, Appellant

                                   ARMY 20110569

     Headquarters, United States Army Accessions Command and Fort Knox
                       Timothy Grammel, Military Judge
     Colonel Robert J. Cotell, Staff Judge Advocate (pretrial and addendum)
  Lieutenant Colonel Philip C. Mitchell, Acting Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Jacob D.
Bashore, JA (on brief).

For Appellee: Major Amber J. Roach, JA (on brief).


                                      29 May 2012

                               --------------------------------
                               SUMMARY DISPOSITON
                               --------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of false official statement, one
specification of aggravated sexual assault, one specification of wrongful sexual
contact, and one specification of committing an indecent act, in violation of Articles
107 and 120 of the Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 920
(2008) [hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge,
confinement for eighteen months, and reduction in rank to E-1. The convening
authority (CA) approved the adjudged sentence. The CA deferred the adjudged
reduction in rank and automatic forfeitures until action. At action, the CA waived
the automatic forfeiture of all pay and allowances for a period of six months,
effective 2 Dec 2011. This case is before this court for review pursuant to Article
66, UCMJ.
SMITH – ARMY 20110569

                                   DISCUSSION

       As noted in a footnote to appellant’s brief, Specification 5 of Charge I
contains superfluous language that should have been excepted from the
specification. We will take appropriate action in our decretal paragraph to address
this harmless error.

       Although not raised as an issue, we note appellant’s counsel erroneously
stated in the Rules for Courts-Martial [hereinafter R.C.M.] 1105 and 1106
submission, that appellant had requested a bad-conduct discharge during his guilty
plea. In his R.C.M. 1105/1106 submission, appellant’s counsel requested the
convening authority waive appellant’s automatic forfeitures and reduce appellant’s
sentence to confinement from 18 to 12 months. In partial support of this request,
appellant’s counsel stated appellant had requested a bad-conduct discharge during
his guilty plea, the implication being that a punitive discharge, along with 12 months
of confinement, was an appropriate punishment.

       Appellant, in a personal letter to the convening authority included in the
1105/1106 submission, specifically and repeatedly requested his sentence to
confinement be reduced to 12 months. He cited his obligation to financially support
his three children as a reason to reduce his period of confinement. Appellant did not
request the convening authority disapprove the adjudged bad-conduct discharge. It
is apparent appellant made a conscious decision to tailor his clemency request
towards reducing confinement. Accordingly, we find no prejudice from counsel’s
erroneous statement.

                                   CONCLUSION

       The court affirms only so much of the finding of guilty of Specification 5 of
Charge I as finds appellant did, at or near Louisville, KY, on or about 14 August
2010, wrongfully engage in sexual contact, to wit: touching the breast of L.T.
without L.T.’s permission. The remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the minor error noted, the entire record, and
in accordance with the principles of United States v. Sales, 

(C.M.A.
1986) and United States v. Moffeit, 

(C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion, the court affirms the
sentence. We have also considered the matters personally raised by appellant
pursuant to United States v. Grostefon, 

(C.M.A. 1982) and find them to
be without merit.




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SMITH – ARMY 20110569

                        FOR THE COURT:
                        FOR THE COURT:



                        MALCOLM H. SQUIRES, JR.
                        Clerk of Court
                        MALCOLM     H. SQUIRES, JR.




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