Filed: Jan. 09, 2009
Latest Update: Mar. 02, 2020
Summary: §866 [hereinafter UCMJ], of the case submitted on its merits, we, note that, although the Specification of the Charge alleged appellant, intentionally injured himself by placing his legs under a M1114HMMWV, the, evidence only supports a finding appellant placed one leg, rather than, both, under the vehicle.Valerio, U.S. Army, did, at, or near Forward Operating Base Sykes, Iraq, in a hostile fire, pay zone, on or about 29 January 2007, for the purpose of, avoiding service as an enlisted person in
Summary: §866 [hereinafter UCMJ], of the case submitted on its merits, we, note that, although the Specification of the Charge alleged appellant, intentionally injured himself by placing his legs under a M1114HMMWV, the, evidence only supports a finding appellant placed one leg, rather than, both, under the vehicle.Valerio, U.S. Army, did, at, or near Forward Operating Base Sykes, Iraq, in a hostile fire, pay zone, on or about 29 January 2007, for the purpose of, avoiding service as an enlisted person intentionally injure, himself by placing his leg underneath a M1114HMMWV, in order to, break it.
More
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and SULLIVAN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist FLEMING A. VALERIO
United States Army, Appellant
ARMY 20071037
Headquarters, 25th Infantry Division
Julie Hasdorff, Military Judge
Colonel Timothy J. Pendolino, Staff Judge Advocate
For Appellant: Major Bradley M. Voorhees, JA; Captain Sarah E. Wolf, JA
(on brief).
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
9 January 2009
---------------------------------
SUMMARY DISPOSITION
--------------------------------
Per Curiam:
Upon review under Article 66, Uniform Code of Military Justice, 10
U.S.C. §866 [hereinafter UCMJ], of the case submitted on its merits, we
note that, although the Specification of the Charge alleged appellant
intentionally injured himself by placing his legs under a M1114HMMWV, the
evidence only supports a finding appellant placed one leg, rather than
both, under the vehicle. Accordingly, we amend the finding of guilty in
the Specification of the Charge to correspond to the evidence. The
Specification as amended now reads as follows:
In that Specialist (E-4) Fleming A. Valerio, U.S. Army, did, at
or near Forward Operating Base Sykes, Iraq, in a hostile fire
pay zone, on or about 29 January 2007, for the purpose of
avoiding service as an enlisted person intentionally injure
himself by placing his leg underneath a M1114HMMWV, in order to
break it.
Reassessing the sentence of the basis of the error noted and the
entire record, applying the principles of United States v. Sales, 22 M.J.
305 (C.M.A. 1986) and United States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006),
including Judge Baker’s concurring opinion, the finding as amended and
sentence are affirmed.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
