Misc. No. 99-8019/NA. United States, appellee, v. Hector C. COLEMAN, appellant. CCA 99-0501. Writ-appeal petition for review of United States Navy-Marine Corps Court of Criminal Appeals denial of a petition for extraordinary relief filed under Rule 27(b).

No. 98-0437/AR. U.S. v. David HIRALDO. CCA 9701543. Second motion to May 5, 1999.

No. 99-0404/AR. U.S. v. Lawrence R. SCHUMM. CCA 9800570. To April 30, 1999.

No. 99-0410/NA. U.S. v. Jody C. COMER. CCA 98-0730. To May 3, 1999.

    In each of the above three cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 98-0946/AR. U.S. v. Charles G. KNIGHT. CCA 9700322. Appellant's motion to extend time to file final brief granted to April 2, 1999.

No. 99-0431/AF. U.S. v. Scott D. KUNKLE. CCA S26672. On further consideration of the above-entitled case and, in particular, the record therein which indicates that appellant’s petition for grant of review of the decision of the then-United States Air Force Court of Military Review was filed in this Court on July 11, 1985, under Docket No. 52875/AF, and it appearing that this Court thereafter granted review of said petition and, after a hearing on the granted issue, affirmed the decision of the lower court, 23 MJ 213 (CMA 1987), it is ordered that the Docketing Notice issued in this case is hereby vacated; and that the Clerk of the Court return this petition to appellant with a letter explaining that this case is now final.

No. 95-0342/AF. U.S. v. Daniel L. BARTLEY. CCA 30605. */

No. 99-0509/AF. U.S. v. Roy H. RUIZ. CCA S29457.

No. 99-0510/AF. U.S. v. Gary R. DAVIS, II. CCA 33474.

____________
*/ Third petition filed in same case.

No. 99-0511/AR. U.S. v. Sarveswara R. CHERUKURI. CCA 9601824.

No. 99-0512/AR. U.S. v. Daren E. ANDERSON. CCA 9801585.

No. 99-0513/AR. U.S. v. Ernesto R. LOYA. CCA 9800196.

No. 99-0514/AR. U.S. v. Neil S. MANNING. CCA 9800461.

No. 99-0515/AR. U.S. v. Bradford M. GOSNEY. CCA 9700653.

No. 99-0516/NA. U.S. v. Roberto LAUDERBAUGH. CCA 96-2071.

No. 99-0517/NA. U.S. v. Anthony D. GARCIA. CCA 98-1815.

No. 99-0518/MC. U.S. v. Scott C. PATTERSON. CCA 98-1771.

Misc. No. 99-8020/AF. United States, appellee, v. Nicholas G. MORGAN, III, appellant. CCA 99-03. Writ-appeal petition for review of United States Air Force Court of Criminal Appeals denial of a petition for extraordinary relief filed under Rule 27(b).

No. 98-0752/AR. U.S. v. John M. McCLAIN, Jr. CCA 9501831.

No. 98-0822/AR. U.S. v. Grady D. GLOVER. CCA 9600736.

No. 98-1075/AR. U.S. v. Anthony G. GRIFFIN. CCA 9601913.

No. 99-0519/MC. U.S. v. Marcos A. GARCIA. CCA 98-1888.

No. 99-0520/NA. U.S. v. Daniel R. KANAGIE. CCA 98-0247.

No. 99-0521/MC. U.S. v. Leslie D. MACNIVEN. CCA 98-1630.

No. 98-0810/AR. U.S. v. Nathan D. LOONEY. CCA 9500433. Appellant’s petition for reconsideration of the order of the Court issued on the 1^st day of March 1999 denied.

No. 97-0506/AR. U.S. v. John A. ROBINSON. CCA 9301094. Appellant’s fifth motion to extend time to file supplement to petition for grant of review granted to April 16, 1999.

No. 99-0091/NA. U.S. v. Roger D. GEORGE. CCA 97-1969. Appellee’s motion to correct errata granted.

No. 99-0377/MC. U.S. v. Nickolas J. WEBB. CCA 97-2153. Appellant's motion to attach granted.

No. 99-0405/AF. U.S. v. James G. SIROKY. CCA 30646. Appellant’s motion to file supplement to petition for grant of review out of time granted.

No. 98-0015/AF. U.S. v. Jason S. ROLAND. CCA 32485.

No. 98-5029/AF. U.S. v. Larry D. STUART, Jr. CCA 32517.

No. 98-0855/AR. U.S. v. David R. FORD. CCA 9601467.

No. 98-0947/AR. U.S. v. Jason L. ROCK. CCA 9700192.

No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745.

No. 98-0053/MC. U.S. v. Seth CHIZUM. CCA 96-0347. On further
consideration of the granted issue, 49 MJ 40 (1998), we conclude that the Court of Criminal Appeals acted properly and within its discretion in ordering an appropriate convening authority to promulgate a corrected general court-martial order noting the five specifications of which appellant was convicted. However, no further relief is warranted because
we agree with the Court of Criminal Appeals that appellant waived any errors in the staff judge advocate’s recommendation and that appellant suffered no prejudice. RCM 1106(f)(6), Manual for Courts-Martial, United States (1998 ed.); Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 98-0477/AR. U.S. v. Frank R. REED, Jr. CCA 9601782. On further consideration of the granted issues, ___MJ____ (Daily Journal Aug. 12, 1998) in light of our decision in United States v. Wheelus, 49 MJ 283 (1998), we conclude that the Court of Criminal Appeals was within its discretion in not ordering a new staff judge advocate recommendation and convening authority action, and in not granting appellant sentence relief. Further, we are satisfied that trial defense counsel’s failure to note the minor defects in the staff judge advocate recommendation did not amount to ineffective assistance of counsel, and that appellant was not prejudiced thereby. Accordingly, the decision of the United States Army Court of Criminal Appeals is affirmed.

No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685. Review granted on the following issues:

 
I. WHETHER THE MILITARY JUDGE ERRED BY SEVERING APPELLANT'S ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN JAMES MAUS WITHOUT GOOD CAUSE.

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS IMPROPERLY SHIFTED THE BURDEN TO APPELLANT TO PROVE THAT THE MILITARY JUDGE SEVERED APPELLANT'S ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN JAMES MAUS WITHOUT GOOD CAUSE.

III. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHERE THE COURT APPLIED INCONSISTENT EVIDENTIARY REQUIREMENTS (1) BY HOLDING THAT APPELLANT'S FAILURE TO SUBMIT EVIDENCE OF AN EXISTING ATTORNEY-CLIENT RELATIONSHIP WAS FATAL, AND (2) BY HOLDING THAT THERE WAS GOOD CAUSE TO SEVER AN ATTORNEY-CLIENT RELATIONSHIP BASED UPON CAPTAIN MAUS' RELEASE FROM ACTIVE DUTY, DESPITE THE GOVERNMENT'S FAILURE TO INTRODUCE SUCH EVIDENCE AT TRIAL.

IV. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT A TRIAL DEFENSE COUNSEL'S RELEASE FROM ACTIVE DUTY PER SE CONSTITUTES GOOD CAUSE TO SEVER AN ATTORNEY-CLIENT RELATIONSHIP.

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING A STATEMENT MADE BY THE VICTIM AFTER A MOTIVE TO FABRICATE AROSE, AS A PRIOR CONSISTENT STATEMENT AND THEN INSTRUCTING THE MEMBERS THAT THEY COULD CONSIDER SUCH TESTIMONY (SIC) AS EVIDENCE FOR THE TRUTH OF THE MATTER ASSERTED THEREIN.

No. 99-0401/AR. U.S. v. Chrissandra V. MARBURY. CCA 9700371. Appellee’s motion to dismiss petition for grant of review granted without prejudice to appellant’s right to file a petition for grant of review after completion of review under Article 66, Uniform Code of Military Justice, 10 USC § 866. Appellant’s motion to file index granted; appellant’s motion to stay return of record of trial to convening authority denied.

No. 99-0522/AR. U.S. v. O. Z. BOBBITT, Jr. CCA 9701101.

No. 99-0523/NA. U.S. v. Jesus R. MOYA. CCA 98-0258.

No. 97-0432/AR. U.S. v. Tereasa M. HICKS, CCA 9502205. Appellant’s motion to correct errata granted.

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349. Third motion.

No. 98-0975/MC. U.S. v. Wesley S. GRIMM. CCA 97-1691.

    In each of the above two cases appellant's motion to cite supplemental authority granted.

No. 98-0947/AR. U.S. v. Jason L. ROCK. CCA 9700192. Appellee’s motion to file supplemental citations of authority granted.

No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745. Appellant's motion to cite supplemental citations of authority and appellee’s motion to correct errata granted.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201. Appellant's motion to admit defense appellate exhibit B granted.

No. 99-0412/MC. U.S. v. Eli P. HESTERLY. CCA 97-1948. To May 6, 1999.

No. 99-0421/NA. U.S. v. Stephen A. ROBBINS. CCA 97-0652. To May 10, 1999.

    In each of the above two cases appellant's motion to extend time to file supplement to petition granted to date indicated.

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349.

No. 98-0952/AF. U.S. v. Billy LEE, Jr. CCA 32794.

No. 98-0975/MC. U.S. v. Wesley S. GRIMM. CCA 97-1691.

No. 95-0775/NA. U.S. v. James K. EDWARDS. CCA 94-0029. The petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 95-0775/NA. U.S. v. James K. EDWARDS. CCA 94-0029. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 99-0170/NA. U.S. v. Vernon T. WILSON. CCA 96-2503.

No. 99-0283/AF. U.S. v. George K. KOLBINSKI. CCA S29361.

No. 99-0284/MC. U.S. v. Richard N. KAUFMAN, Jr. CCA 98-1142.

No. 99-0324/AR. U.S. v. Shawn A. EVANS. CCA 9701727.

No. 99-0329/MC. U.S. v. Jamille R. STEPHENS. CCA 96-2243.

No. 99-0348/AF. U.S. v. Bradley J. SUTTON, Jr. CCA S29561.

No. 99-0349/NA. U.S. v. Shawn K. DAUGHERTY. CCA 98-0150.

No. 99-0355/AR. U.S. v. Onetia P. SCHENCK. CCA 9601949.

No. 99-0358/NA. U.S. v. Steven M. PEARSON. CCA 98-0981.

No. 99-0359/AF. U.S. v. Kevin P. BIEHL. CCA 33399.

No. 99-0360/AF. U.S. v. Kelly N. MCGREW. CCA 33388.

No. 99-0362/NA. U.S. v. Jereme D. SCHOEMAKER. CCA 98-0648.

No. 99-0364/NA. U.S. v. Todd M. WILSON. CCA 98-0238.

No. 99-0372/AR. U.S. v. Terrance T. BRADHAM. CCA 9800533.

No. 99-0383/AF. U.S. v. Jamar A. HOLDER. CCA S29588.

No. 99-0389/NA. U.S. v. Bryan L. GREER. CCA 98-0273.

No. 99-0411/AR. U.S. v. Michael W. SHELTON. CCA 9800702.

No. 99-0425/AR. U.S. v. Frederick A. TETRO. CCA 9800064.

No. 99-0524/MC. U.S. v. Francisco J. LOPEZ. CCA 96-2454.

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211.

No. 98-0795/NA. U.S. v. Craig D. BROWNFIELD. CCA 93-1483

    In each of the above two cases, appellee’s motion to extend time to file answer to final brief granted, but only up to and including the 26th day of April, 1999.

No. 98-0882/AR. U.S. v. Jeremy J. WILLIAMS. CCA 9601126. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above-entitled case, in which appellant asserts that he is entitled to the relief prescribed in our opinion in United States v. Gorski, 47 MJ 370 (1997), we note that the Defense Finance and Accounting Service (DFAS) has established a procedure whereby servicemembers may apply directly for return of any monies improperly withheld as a result of the improper application of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. We have no indication whether appellant filed, on his own behalf, a claim for back pay and allowances with the DFAS before his petition for grant of review was filed with this Court, or whether The Judge Advocate General notified DFAS of appellant's status as an affected servicemember entitled to appropriate reimbursement. Accordingly, it is ordered that within 30 days of the date of this Order, counsel for the United States advise this Court in writing whether appellant, on his own behalf, submitted a claim for reimbursement, or whether The Judge Advocate General notified DFAS of appellant's status as an affected servicemember entitled to appropriate reimbursement; and that action on appellant's petition for grant of review shall be deferred until a response has been filed with the Court by the United States and served on counsel for appellant.

No. 98-0914/AR. U.S. v. Monty J. HARRIS. CCA 9401997. Appellee’s motion to extend time to file answer to final brief granted to May 3, 1999.

No. 98-0916/AR. U.S. v. Paul J. TIRADO. CCA 9600943. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above-entitled case, in which appellant asserts that he is entitled to the relief prescribed in our opinion in United States v. Gorski, 47 MJ 370 (1997), we note that the Defense Finance and Accounting Service (DFAS) has established a procedure whereby servicemembers may apply directly for return of any monies improperly withheld as a result of the improper application of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. We have no indication whether appellant filed, on his own behalf, a claim for back pay and allowances with the DFAS before his petition for grant of review was filed with this Court, or whether The Judge Advocate General notified DFAS of appellant's status as an affected servicemember entitled to appropriate reimbursement. Accordingly, it is ordered that within 30 days of the date of this Order, counsel for the United States advise this Court in writing whether appellant, on his own behalf, submitted a claim for reimbursement, or whether The Judge Advocate General notified DFAS of appellant's status as an affected servicemember entitled to appropriate reimbursement; and that action on appellant's petition for grant of review shall be deferred until a response has been filed with the Court by the United States and served on counsel for appellant.

No. 99-0193/AF. U.S. v. Thomas M. CULLUM. CCA S29508. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals we note that, as part of the pretrial agreement, the convening authority agreed to waive all automatic forfeitures for a period of 3 months or the period of confinement, whichever was less. In his recommendation, dated 14 January 1998, the staff judge advocate recommended that the convening authority waive those forfeitures in accordance with the pretrial agreement. The action, dated 29 January 1998, did not take this action; nor is there any documentation in the record indicating that the convening authority deferred forfeitures before taking his action. Accordingly, it is ordered that appellate counsel provide within 60 days evidence to show that the convening authority complied with the pretrial agreement and recommendation of the staff judge advocate to waive all automatic forfeitures for a period of 3 months or for the period of confinement, whichever was less.

No. 99-0242/MC. U.S. v. Wayne E. BURTON. CCA 98-0805. Review granted on the following issue:

No. 99-0525/MC. U.S. v. Wesley H. HEMBREE. CCA 96-1353.

No. 99-0526/MC. U.S. v. Nathan E. LEWIS. CCA 96-0355.

No. 99-0527/AF. U.S. v. Ann M. KUNDINGER. CCA 32954.

No. 99-0528/AF. U.S. v. Joel A. BRAND. CCA 32866.

No. 99-0529/AF. U.S. v. Richard E. PEARSON. CCA 33472.

No. 99-0530/AF. U.S. v. Marc S. SOVIK. CCA 33365.

No. 96-1198/AF. U.S. v. Edward L. MITCHELL. CCA 31421.

No. 97-1016/AR. U.S. v. Matthew D. ALLEN. CCA 9501503.

No. 97-1203/NA. U.S. v. Samuel J. SOUTHWORTH. CCA 96-0960.

No. 99-0531/NA. U.S. v. Aaron K. BROWN. CCA 98-0587.

No. 99-0532/MC. U.S. v. Danny H. FRAZEE. CCA 98-1910.

No. 99-0533/AF. U.S. v. Charles L. FRICKE. CCA 33421.

No. 99-0534/AF. U.S. v. James E. HARDENBURGH. CCA 32937.

No. 99-0535/AF. U.S. v. Vanessa M. MCNEAL. CCA S29528.

No. 99-0536/AF. U.S. v. Robert J. MONROE. CCA 32592.

No. 99-0537/AF. U.S. v. Mark A. NEGRON. CCA 33498.

No. 99-0538/AF. U.S. v. Christopher D. RHODES. CCA 33451.

No. 99-0539/AF. U.S. v. Stephen A. RUCKER. CCA 33304.

No. 99-0540/AF. U.S. v. Jonas W. WILSON. CCA 33349.

No. 98-0502/AF. U.S. v. Kerry S. EGGEN. CCA 32541. Appellant's motions to file supplemental citation of authority out of time and to file corrected pages granted; appellee’s motions to file supplemental citation of authority out of time and to substitute corrected pages granted.

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349. Appellee’s motion to cite supplemental citations of authority granted.

No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745. Appellee’s motion to cite supplemental authority granted.

No. 99-0294/MC. U.S. v. Enrique MARTINEZ. CCA 98-0203. Appellant's motion to file out of time additional reasons for granting review to supplement to petition for grant of review and motion to attach documents granted.

No. 99-0418/AR. U.S. v. Donald L. GARREN. CCA 9700732. To May 6, 1999.

No. 99-0419/AR. U.S. v. Homer R. LANGSTON. CCA 9700358. To April 23, 1999.

No. 99-0420/AF. U.S. v. Billy W. COOK. CCA 32885.

No. 99-0437/AF. U.S. v. Philip T. SLADEWSKI. CCA 32741. To May 12, 1999.

No. 99-0446/MC. U.S. v. Stephen A. MCMILON. CCA 97-0762. To May 19, 1999.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 98-0502/AF. U.S. v. Kerry S. EGGEN. CCA 32541. */

No. 98-0656/AR. U.S. v. Patrick B. ROLLE. CCA 9601336. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING SSG ROLLE’S CAUSAL CHALLENGE AGAINST TWO (2) PANEL MEMBERS WHO STATED THEY COULD NOT CONSIDER THE FULL RANGE OF PUNISHMENT, TO INCLUDE NO PUNISHMENT.

II. WHETHER THE APPLICATION OF ARTICLE 57(a), 10 USC § 857(a), VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION WITH RESPECT TO APPELLANT WHERE THE OFFENSE OF WHICH APPELLANT WAS CONVICTED OCCURRED BEFORE APRIL 1, 1996, WHERE APPELLANT WAS SENTENCED ON AUGUST 8, 1996, WHERE THE CONVENING AUTHORITY DID NOT TAKE ACTION ON APPELLANT’S CASE UNTIL NOVEMBER 14, 1996,AND WHERE THE ADJUDGED COURT-MARTIAL SENTENCE INCLUDED A BAD-CONDUCT DISCHARGE AND REDUCTION TO THE GRADE OF PRIVATE E-1.

Judge Effron did not participate in this decision. See United
States v. Gorski (Memorandum Opinion of Judge Effron, September 8, 1997), 40 MJ 317, 324 n. 9 (1997). This is without prejudice to his future participation in this case should it subsequently be presented to the Court in a manner that does not require determination of the application of the ex post facto clause to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for fiscal year 1996.

No. 99-0270/MC. U.S. v. Barry W. EASON. CCA 98-0082. Review granted on the following issue:

No. 99-0541/AR. U.S. v. Toby M. WARPUP. CCA 9800483.

No. 99-0542/MC. U.S. v. Anthony W. PORTER. CCA 97-2090.

No. 99-0427/NA. U.S. v. Joseph H. CASEY. CCA 96-1682. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 12, 1999.

_________________

*/ This case was heard at Maxwell Air Force Base, Montgomery, Alabama.

No. 98-0963/NA. U.S. v. Benjamin H. HOGG. CCA 9700493.

No. 99-0062/AR. U.S. v. Mark D. RUNYON. CCA 9700648.

No. 99-0263/AF. U.S. v. Keith A. DONALDSON. CCA S29446.

No. 99-0266/AR. U.S. v. Keith J. SIMS. CCA 9701712.

No. 96-0669/NA. U.S. v. Charles W. JOHNSON. CCA 94-1674. */

No. 99-0543/AF. U.S. v. Michael S. PARKER. CCA 33237.

No. 99-0544/AF. U.S. v. Gordon D. RAISTRICK. CCA 33094.

No. 99-0545/AF. U.S. v. Shawn C. CLARK. CCA S29602.

No. 99-0546/AF. U.S. v. Patrick R. HERYFORD. CCA 33249.

No. 97-0604/AR. U.S. v. Larry WALLACE, Jr. CCA 9500234. Appellant’s motion to extend time to file supplement to petition for grant of review granted to May 17, 1999.

No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508. Appellee’s motions to withdraw motion to correct errata and to file substituted motion to correct errata granted.

No.98-0847/AR. U.S. v. Martez L. HENDERSON. CCA 9501435. Appellee’s motion to file brief of more than fifty pages granted.

_____________________
*/ Second petition filed in same case.

No. 99-0188/NA. U.S. v. Charles G. FORTNER. CCA 96-2253.

No. 99-0375/MC. U.S. v. Lane E. JAYNES. CCA 98-1185.

No. 99-0379/AF. U.S. v. Christopher TERRONEZ. CCA S29591.

No. 99-0382/AF. U.S. v. Alfred G. HOGEDA, Jr. CCA 33256.

No. 99-0384/AF. U.S. v. Kareem L. WALLACE, Jr. CCA S29543.

No. 99-0391/AF. U.S. v. Michael P. DYMOND. CCA 33247.

No. 99-0413/MC. U.S. v. John A. VASQUEZ. CCA 97-0014.

No. 99-0547/AR. U.S. v. Paul E. GRIER. CCA 9700651.

No. 99-0548/AR. U.S. v. Jai S. TRIPLETT. CCA 9800601.

No. 99-0549/AR. U.S. v. Jessica SANTIAGO. CCA 9800117.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201. Appellee’s motion to extend time to file answer to final brief granted but only up to and including April 26, 1999.

No. 98-8010/MC. United States et al., appellees, v. Russell B. STEELE, appellant. CCA 97-1615.

No. 99-0550/AF. U.S. v. Stephen L. FORTIN. CCA 33420.

No. 99-0551/AF. U.S. v. Paul C. GALYEAN. CCA 33363.

No. 99-0552/AF. U.S. v. Stanley J. HILL. CCA 33325.

No. 99-0553/AF. U.S. v. Jon J. MOORE. CCA 33120.

No. 99-0554/AF. U.S. v. David L. WATERSTREET. CCA 32656.

No. 99-0555/AR. U.S. v. William G. RABY. CCA 9701858.

No. 99-0556/AR. U.S. v. Benjiman JOHNSON. CCA 9602016

No. 99-0557/AR. U.S. v. Sean E. HYLTON. CCA 9801269.

No. 99-0558/AR. U.S. v. Charles D. MATTHEWS. CCA 9700829.

No. 99-0559/AR. U.S. v. Michael A. MADLER. CCA 9701581.

No. 99-0560/NA. U.S. v. Kerry V. LYNN. CCA 97-1482.

No. 99-0561/NA. U.S. v. Rafell S. GRAHAM. CCA 99-0137.

No. 99-0562/AF. U.S. v. Dennis C. LEE. CCA 33367.

No. 99-0563/AF. U.S. v. Robert T. SOLCHAGA. CCA 33260.

No. 99-0564/AF. U.S. v. Shannon T. VERBURGT. CCA S29594.

No. 98-0952/AF. U.S. v. Billy LEE, Jr. CCA 32794. Appellee's motion to correct mistaken statement at oral argument granted.

No. 98-0999/AR. U.S. v. Roger D. EVERSOLE. CCA 9600466. Appellant's motion to extend time to file final brief granted to May 5, 1999.

No. 99-0232/AR. U.S. v. Robert W. MARTIN. CCA 9600413. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to May 19, 1999.

No. 99-0367/MC. U.S. v. Craig J. SPERANZI. CCA 98-1588. Second motion to April 26, 1999.

No. 99-0370/AR. U.S. v. James E. GEORGE, Jr. CCA 9700630. Second motion to May 10, 1999.

No. 99-0428/AR. U.S. v. Richard G. WILSON. CCA 9700636. To May 12, 1999.

No. 99-0441/AR. U.S. v. Jeffery A. ESTABROOK. CCA 9601988. To May 19, 1999.

    In each of the above four cases, appellant's motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 99-0424/AR. U.S. v. Dwight D. HEINECKE, II. CCA 9702006. Appellant's motion to file out of time extension of time request granted; appellant’s motion to extend time to file supplement to petition for grant of review granted to May 12, 1999.

No. 99-0565/NA. U.S. v. Matthew J. JOYCE. CCA 98-0280.

No. 99-0566/MC. U.S. v. Seth R. BROWN. CCA 98-0381.

No. 99-0567/MC. U.S. v. George T. BILLAM. CCA 98-0131.

No. 99-0568/MC. U.S. v. Anthony S. PERSON. CCA 98-0219.

No. 99-0363/MC. U.S. v. Michael G. WILLIAMS. CCA 97-2089. Appellee's motion to attach documents granted.

No. 99-0449/MC. U.S. v. Micah A. SOLOMON. CCA 97-0114. Appellant's motion to substitute corrected signature page and certificate of service to appellant's supplement to petition for grant of review granted.

No. 99-0158/AF. U.S. v. Howard M. COOLEY, Jr. CCA 32978.

No. 99-0287/AR. U.S. v. Benjamin I. BALL. CCA 9701401.

No. 99-0335/AF. U.S. v. Keith J. MANNING. CCA S29387.

No. 99-0371/AR. U.S. v. Steven L. HILL. CCA 9701538.

No. 99-0381/AF. U.S. v. Jeffrey D. GRIFFITH. CCA 33225.

No. 99-0385/AF. U.S. v. Eddie J. SOCHIA. CCA S29521.

No. 99-0386/AR. U.S. v. Herbert R. DRAYTON, Jr. CCA 9801594.

No. 99-0394/NA. U.S. v. Kenneth A. WIGGINS. CCA 98-1546.

No. 99-0395/MC. U.S. v. Erick H. KNIGHT. CCA 97-1476.

No. 99-0400/AF. U.S. v. Joseph R. DUFFY. CCA 32977.

No. 99-0569/AR. U.S. v. Anthony T. KING. CCA 9601507.

No. 99-0570/MC. U.S. v. Robert DIFFOOT. CCA 97-0515.

No. 99-0571/NA. U.S. v. Todd A. TITTEL. CCA 97-1224.

No. 99-0572/AF. U.S. v. Heather J. CLARK. CCA 33380.

No. 99-0573/AF. U.S. v. Darren L. KNIGHT. CCA S29620.

No. 99-0574/AF. U.S. v. Robert H. PARMER, Jr. CCA 33220.

No. 99-0087/AF. U.S. v. Robert A. CALAMITA. CCA 32092 Appellant’s petition for reconsideration of the order of the Court issued on March 26, 1999, denied.

No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003. Appellant's
motion to attach denied.

No. 98-0581/MC. U.S. v. Mary Julia E. HAAGENSON. CCA 96-1296. Appellant's motion to file supplemental brief denied.

    SULLIVAN, Judge (dissenting): I would grant the motion.

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. Appellant's motion to attach documents denied.

No. 99-0143/MC. U.S. v. Donald R. DINKEL. CCA 97-0531. Appellant's motion to file petition for reconsideration out of time denied.

No. 99-0504/AR. U.S. v. Rob W. ROBERTS. CCA 9600785. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 1, 1999.

No. 97-0617/AF. U.S. v. Verdell GRAHAM, Jr. CCA 32283. Appellee’s petition for reconsideration of the opinion of the Court issued on March 9, 1999 denied.

    SULLIVAN, Judge (dissenting): I dissent from the order of the Court.

No. 99-0417/AR. U.S. v. Samuel G. BROWNING. CCA 9601041. Second motion to June 7, 1999.

No. 99-0455/AR. U.S. v. Michael L. LANDRY. CCA 9700143. To May 7, 1999.

    In each of the above two cases, appellant's motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 99-0575/AR. U.S. v. David G. LIRA, Jr. CCA 9601280.

No. 99-0576/MC. U.S. v. Gregory A. ARIAS. CCA 98-1090.

No. 99-0577/MC. U.S. v. Kyle J. DEXTER. CCA 98-1811.

No. 99-0578/NA. U.S. v. Joseph D. DIFUSCO. CCA 96-1550.

No. 99-0579/AF. U.S. v. Terry N. SIMMONS. CCA S29626.

No. 99-0580/AF. U.S. v. Craig J. FANGUY, Jr. CCA S29419.

No. 99-0581/AF. U.S. v. David L. AIPLE, Jr. CCA 33283.

No. 99-0582/AF. U.S. v. Michael E. KNIGHT. CCA 32754.

No. 99-0583/AF. U.S. v. Anthony B. SLEDGE. CCA 32834.

No. 99-0584/NA. U.S. v. Charles R. ROSENDAHL. CCA 96-1073.

No. 99-0585/MC. U.S. v. Reginald L. WOODS. CCA 98-0243.

No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745. Appellant's motion to cite supplemental authority granted.

No. 98-0998/AR. U.S. v. Jose M. MARTINEZ. CCA 9501957. Appellant's motion to file supplemental citations of authority granted.

No. 99-0474/AF. U.S. v. Michael J. BURNS. CCA 32841. To May 21, 1999.

No. 99-0487/AF. U.S. v. Sherrie L. MATTHEWS. CCA S29326. To May 17, 1999.

    In each of the above two cases, appellant's motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 98-0998/AR. U.S. v. Jose M. Martinez. CCA 95-1957. */

No. 99-0586/MC. U.S. v. Wayne A. NURIDDIN. CCA 97-0495.

No. 99-0587/NA. U.S. v. Samuel B. SAUNDERS. CCA 98-1399.

No. 99-0588/AF. U.S. v. Gary R. MOORE, Jr. CCA 33317.

No. 97-0092/AF. U.S. v. Kenth G. STARGELL CCA. S29111. Appellant’s petition for reconsideration of the opinion of the Court (49 MJ 92) is granted only to the extent that the words, "id. at para. 6.35 (airmen with 16-20 years service ‘entitled to special consideration for probation upon their request’)," at 49 MJ 94, are deleted from the opinion of the Court; in all other respects the petition for reconsideration is denied.

    SULLIVAN, Judge (dissenting):

The majority’s partial denial of this petition for reconsideration cannot be justified on the basis that no point of law or fact was overlooked or misapprehended by the Court in its original decision. The majority earlier denied appellant’s appeal on the basis "that the likelihood of appellant being allowed to retire honorably if not sentenced to a punitive discharge was a fair inference from the evidence in this case." 49 MJ 92, 94 (1998). The majority then cited service regulations, not evidenced or otherwise considered at trial, to support its speculation in this regard, including paragraph 6.35, Air Force Instruction 36-3208 (14 October 1994). Contra United States v. Perry, 48 MJ 197, 199 (1998). The majority now concedes error in its prior opinion because, as appellant points out, other sections of this regulation contradict the majority’s previous assertion on the likelihood of honorable retirement.

I strongly disagreed with the majority deciding this important case on the basis of evidence not in the record of trial. See Stargell, supra at 95 (Sullivan, J., dissenting). However, to dismiss appellant’s request for reconsideration on the basis that it does not present anything not considered by the Court before is simply unfair. Neither 10 USC § 1176(a) nor the sections of Air Force Instruction 36-3208 cited in the majority opinion were cited in the briefs of either party to the original appeal.

Moreover, appellant was found guilty of marijuana use and possession. As pointed out by appellant, paragraph 7.2.6. of AFI 36-3208 clearly states, contrary to the majority opinion in this case:

• Failure to comply with preventive medicine counseling, paragraph 5.53.

• Fraudulent entry, paragraph 5.15.

• Entry Level Performance or conduct, paragraph 5.22.

• Homosexual conduct, paragraph 5.36.

• In the interest of national security, paragraph 5.57.

• In lieu of trial by court-martial. (Chapter 4)

• Drug abuse, paragraph 5.54.

The majority notes that appellant had 19 ½ years of service at the time of his trial. Paragraph 5.55.2.1 of AFI 36-3208 is quite clear that the likelihood of a senior staff sergeant being retained on active duty for retirement purposes after a conviction for drug use was not reasonable. It states:

• Drug abuse is a departure from the member’s usual and customary behavior.

• Drug abuse occurred as the result of drug experimentation (a drug experimentor is defined as one who has illegally or improperly used a drug for reasons of curiosity, peer pressure, or other similar reasons).

• Drug abuse does not involve recurring incidents, other than drug experimentation as defined above.

• The member does not desire to engage in or intend to engage in drug abuse in the future.

• Drug abuse under all the circumstances is not likely to recur.

• Under the particular circumstances of the case, the member’s continued presence in the Air Force is consistent with the interest of the Air Force in maintaining proper discipline, good order, leadership, and morale (Noncommissioned officers have special responsibilities by virtue of their status; fulfill an integral role in maintaining discipline; and, therefore, must exhibit high standards of personal integrity, loyalty, dedication, devotion to duty and leadership).

• Drug abuse did not involve drug distribution. For the purpose of this paragraph, drug distribution means the delivery to the possession of another. Distribution does not occur with the transfer of the drugs from one person to another while such persons are engaged in the mutual use of drugs, except that individuals who obtain, or arrange for obtaining, the drugs used by others are involved in distribution. "Delivery" means the actual, constructive, or attempted transfer of the drugs, whether or not there exists an agency relationship.

A simple editorial amendment will not change reality and it will not correct the misapprehension upon which the majority’s previous opinion was based. To decide a case on appeal on the basis of evidence not admitted at trial is legal error. To do so on the basis of an acknowledged inaccuracy as to the content of that unadmitted evidence compounds that error. In my view, the majority’s impermissible and erroneous finding of fact cries out for reconsideration or for later correction by a higher court. See generally Art. 67(c), Uniform Code of Military Justice, 10 USC § 867(c) (1994) (Court of Appeals for Armed Forces limited to deciding questions of law).

    EFFRON, Judge (dissenting):

Appellant’s petition for reconsideration challenges the conclusion of the majority that it was appropriate to infer that appellant would have been allowed to retire honorably if not sentenced to a punitive discharge, and the majority’s view that "[h]e would have been entitled to special consideration if administrative discharge proceedings had been initiated after his court-martial." 49 MJ 92, 94 (1998). In support of his challenge, appellant has cited regulatory provisions indicating that, as a drug offender, he would have been ineligible for parole and rehabilitation programs under the regulation and that he would have faced a very heavy burden of proving in administrative proceedings that his retention in the Air Force was warranted under specific, limited circumstances.

These regulatory provisions have been raised in response to language that remains in the majority opinion. Appellant has offered new argument that raises legitimate questions about the merits of the majority opinion. Under these circumstances, appellant is entitled to reconsideration of the Court’s earlier decision against him.

No. 98-1109/AR. U.S. v. Jason E. NELSON. CCA 9601144. Appellant's motion to admit defense appellate exhibit A granted.

No. 99-0311/AR. U.S. v. Brant D. PFISTER. CCA 9600589. Third motion.

No. 99-0442/AR. U.S. v. Darrick G. DREW. CCA 9800999. To May 21, 1999.

No. 99-0459/AR. U.S. v. James K. SAUNDERS. CCA 9700830. To May 21, 1999.

No. 99-0476/AF. U.S. v. Thane J. CHRISTENSON. CCA 33058. To May 21, 1999.

No. 99-0485/AF. U.S. v. Ronald E. LANE. CCA S29537. To May 26, 1999.

    In each of the above five cases, appellant's motion to extend time to file supplement to petition for grant of review granted to date indicated.

No. 99-0398/MC. U.S. v. Michael O. KEEVE. CCA 97-1980. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to May 26, 1999.

No. 99-0449/MC. U.S. v. Micah A. SOLOMON. CCA 97-0114. Appellant's motion to attach excerpts from Marine Corps Separation Manual (MARCORSEPMAN) granted.

No. 97-0617/AF. U.S. v. Verdell GRAHAM, Jr. CCA 32283.

No. 98-0036/AR. U.S. v. John W. BICKLEY. CCA 9601806.

No. 98-0152/MC. U.S. v. Keith J. BIAGASE. CCA 96-1459.

No. 98-0207/AF. U.S. v. David E. RUSSELL. CCA 32662.

No. 98-0306/MC. U.S. v. Kenneth R. WATT. CCA 96-1587.

No. 98-0888/MC. U. S. v. Michael E. REIST CCA 97-1294

___________________

*/ This case was heard at the United States Military Academy, West Point, New York.

No. 98-0333/AR. U.S. v. Paul S. WORRELL. CCA 9601261. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

Judge Effron did not participate in the Court’s prior action on this case. See 50 MJ 190-91 (1998). In view of the materials filed by the parties, the case is now before the Court in a manner that does not require determination of the ex post facto issue that led to Judge Effron’s decision not to participate in the earlier proceedings. Accordingly, Judge Effron has participated in the decision on this petition and will participate in any further proceedings on this case.

No. 98-0385/AR. U.S. v. Daniel J. DE SANTI. CCA 9601323. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

Judge Effron did not participate in the Court’s prior action on this case. See 50 MJ 128 (1998). In view of the materials filed by the parties, the case is now before the Court in a manner that does not require determination of the ex post facto issue that led to Judge Effron’s decision not to participate in the earlier proceedings. Accordingly, Judge Effron has participated in the decision on this petition and will participate in any further proceedings on this case.

No. 98-0534/AR. U.S. v. Edward L. WORTHINGTON. CCA 9601109. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

Judge Effron did not participate in the Court’s prior action on this case. See 50 MJ 206 (1998). In view of the materials filed by the parties, the case is now before the Court in a manner that does not require determination of the ex post facto issue that led to Judge Effron’s decision not to participate in the earlier proceedings. Accordingly, Judge Effron has participated in the decision on this petition and will participate in any further proceedings on this case.

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

No. 99-0154/AR. U.S. v. Sylvester L. KELLY. CCA 9600774. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any. That court will give further consideration to the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN
HE DENIED THE DEFENSE MOTION FOR DISCOVERY OF A KEY
GOVERNMENT WITNESS’ PERSONNEL FILE WHERE THE DEFENSE
HAS A GOOD FAITH BASIS TO BELIEVE THAT THE FILE
CONTAINED INFORMATION CONCERNING THE WITNESS’
CREDIBILITY FOR TRUTHFULNESS.

No. 99-0181/AR. U.S. v. Art A. HERMOSILLA. CCA 9700922. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is by the Court, that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

No. 99-0589/MC. U.S. v. Joseph W. WINSTEAD. CCA 98-0875.

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 96-0585. Appellant's motion for division of oral argument granted.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201. Appellant's motion to file out of time answer to motion to vacate the grant of review of issues granted.

No. 99-0210/MC. U.S. v. Howard J. RICH. CCA 97-2040. */

No. 99-0308/AR. U.S. v. Allen W. SAUNDERS. CCA 9800744.

No. 99-0332/AF. U.S. v. Robert U. AGUILAR. CCA 32809. */

No. 99-0590/AR. U.S. v. Addis G. WILEY. CCA 9101188.

No. 99-0591/MC. U.S. v. Jerry W. DRIVER. CCA 86-2313.

No. 99-0592/AF. U.S. v. Manoi J. BIRDSONG. CCA 33376.

No. 99-0593/AF. U.S. v. Samuel D. ODLE. CCA 33351.

_______________________

*/ Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317 (1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

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