United States v. Specialist JACOB P. HENDERSON, ARMY 20140081

Background

Appellant (Spc. Jacob P. Henderson) was convicted at a general court-martial of multiple offenses including four aggravated sexual-assault specifications (two digital-penetration, two penile-penetration) and sentenced to a dishonorable discharge, nine years confinement (168 days credit), total forfeitures, and reduction to E-1; convening authority approved eight years, ten months confinement and the remainder of the sentence.
At an Article 39(a) session before sentencing, the military judge sua sponte ruled Specifications 1 & 2 (digital) were multiplicious and merged them into a single aggravated-sexual-assault specification for findings and sentencing; did the same for Specifications 3 & 4 (penile).
The military judge instructed the members the two digital specs count as one offense and the two penile specs count as one offense for sentencing.
The SJAR incorporated the Report of Result of Trial (ROT), but the ROT and promulgating order still listed four separate aggravated-sexual-assault findings (i.e., did not reflect the judge’s merger). The convening authority’s action approved the sentence without addressing the discrepancy.
Appellate court found an unresolvable ambiguity between the military judge’s in-court merger and the findings as reported/approved by the convening authority, consolidated the paired specifications consistent with the judge’s ruling, set aside the convening authority’s action, and returned the record for a new SJAR and action.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the aggravated-sexual-assault specifications were unreasonably multiplied and thus should be merged for findings and sentencing	The military judge properly found multiplicity/unreasonable multiplication and merged the paired specs; convictions/sentencing should reflect that merger	The convening authority’s approval as reflected in the SJAR/ROT/promulgating order listed four convictions, creating ambiguity about what findings were approved	Court consolidated Specs 1&2 and 3&4 consistent with the military judge’s ruling (unreasonable multiplication) and directed new SJAR/action due to unresolvable ambiguity in approved findings
Whether the convening authority implicitly approved findings as reported in the SJAR/ROT despite the in-court merger	The merger at trial controls; the SJAR/ROT’s failure to reflect merger created ambiguity that requires correction	Where a convening authority does not explicitly address findings, the SJAR controls; but an unresolvable conflict between adjudged and approved findings requires returning the record	Court held the conflict was unresolvable; set aside convening authority’s action and returned the record for a new SJAR and action
Whether relief beyond consolidation was required (e.g., new action)	Appellant sought correction to conform findings and approval to the military judge’s merger	Government agreed the discrepancy required return for a new SJAR/action	Court ordered consolidation of paired specs and returned the record to The Judge Advocate General for new SJAR and action
Whether Grostefon matters raised personally by appellant had merit	Appellant raised additional personal claims	Government opposed	Court found Grostefon matters without merit

Key Cases Cited

United States v. Alexander, 63 M.J. 269 (C.A.A.F.) (unresolvable ambiguity between adjudged and approved findings requires return for new SJAR and action)
United States v. Alexander, 61 M.J. 266 (C.A.A.F.) (standard for de novo review of convening authority approval and findings issues)
United States v. Diaz, 40 M.J. 335 (C.M.A.) (convening authority implicitly approves findings as correctly reported in the SJAR)
United States v. Mayberry, 72 M.J. 467 (C.A.A.F.) (authority to consolidate specifications to remedy unreasonable multiplication)
United States v. Campbell, 71 M.J. 19 (C.A.A.F.) (clarifies terminology and framework for unreasonable multiplication of charges)
United States v. Moreno, 63 M.J. 129 (C.A.A.F.) (post-trial processing delay and related clemency considerations)
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (procedures for appellant-raised matters on appeal)