UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, LEVIN, 1 and WOLFE
                                    Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                      Private First Class ALEXANDER E. DENSON
                              United States Army, Appellant

                                         ARMY 20150137

                         Headquarters, United States Army Alaska
                      Douglas Watkins, Military Judge (arraignment)
                            Andrew Glass, Military Judge (trial)
                     Colonel Erik L. Christiansen, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman JA;
Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).

                                          18 August 2017
                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LEVIN, Judge:

       Appellant raises four errors, three of which merit discussion and relief. First,
appellant asks that we set aside his convictions for sexual assault and abusive sexual
contact in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United
States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). Here, the factfinder – over defense
objection – was permitted to consider appellant’s propensity to commit the charged
offenses based on the factfinder’s assessment of the evidence with respect to three
other charged offenses. 2 This was error and warrants relief. Second, appellant

1
    Judge LEVIN took final action while on active duty.
2
 The military judge denied the motion with respect to one specification of sexual
assault and ultimately acquitted appellant of that particular specification.
DENSON—ARMY 20150137

alleges, and the government concedes in part, that several of the assault charges
amounted to an unreasonable multiplication of charges. We agree with some, but
not all, of appellant’s averments in that regard. Finally, appellant asks that we
provide sentencing relief because it took 303 days for the convening authority to
take action on his case. Because we find a due process violation, we agree and grant
relief. 3

       This case is before us for review under Article 66, Uniform Code of Military
Justice, 10 U.S.C. § 866 (2012) [hereinafter UCMJ]. A military judge sitting as a
general court-martial convicted appellant, contrary to his pleas, of one specification
of false official statement, two specifications of sexual assault, two specifications of
abusive sexual contact, one specification of aggravated assault, seven specifications
of assault consummated by a battery, and two specifications of communicating a
threat, in violation of Articles 107, 120, 128, and 134, UCMJ. The convening
authority approved the adjudged sentence to a bad-conduct discharge, confinement
for sixty-eight months, forfeiture of all pay and allowances, and reduction to Private
E-1. Appellant was credited with three days against the sentence to confinement.

                                 LAW AND DISCUSSION

     A. The Admission of Military Rule of Evidence 413 Propensity Evidence

            1. Factual Background for the Article 120, UCMJ, Offenses

        With respect to the allegations involving sexual offenses, appellant’s crimes
fall into four categories: misconduct relating to AK; misconduct relating to AS;
misconduct relating to LR; and misconduct relating to EC. All of the misconduct
occurred within a sixteen-month period.

3
  Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserts a number of issues. Among those issues, appellant claims that the
record of trial is incomplete because his appellate defense counsel were unable to
view Prosecution Exhibit 9, a video of appellant’s interview with the United States
Army Criminal Investigation Command (CID). This statement, in part, served as the
basis for appellant’s conviction for the Specification of Charge I, making a false
official statement. As neither counsel nor appellant submitted an affidavit, there is
no evidence before this court that appellate defense counsel were not able to view
the exhibit. Furthermore, as part of our own statutory mandate to conduct a de novo
review of the factual and legal sufficiency of a conviction, United States v. Walters,
58 M.J. 391, 395 (C.A.A.F. 2003), we have reviewed the record of trial and find this
issue to be without merit. To the extent the other issues personally raised by
appellant are not mooted by our resolution of other assignments of error, they merit
neither discussion nor relief.

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DENSON—ARMY 20150137

        On 13 May 2013, appellant and AK met in person after having previously met
online. While together in appellant’s car, appellant pulled out a knife and poked
AK’s upper thigh, asking if it hurt. The record is silent as to whether AK responded
to appellant’s question. The next day, sitting in appellant’s car, appellant again
pulled out a knife and poked AK, asking if it hurt. AK responded, “Yeah, you
already knew that would hurt because you had done it before.” That same evening,
appellant placed a burning end of his cigarette on the middle of AK’s foot. AK
pulled away and appellant responded, “I’m abusive, get used to it.” Apparently not
heeding his warning, AK moved to appellant’s lap and the two started kissing. After
first kissing AK’s breast in a playful way, appellant then bit down hard despite AK’s
pleas for him to stop. Shortly thereafter, AK advised appellant she no longer wished
to see him and, within an hour, reported the incident to the Anchorage Police
Department.

        On 11 September 2013, appellant and AS met in person after having
previously met online. While appellant and AS were watching a movie in AS’s
apartment, appellant exposed his penis and asked AS to perform oral sex on him.
AS complied. Later that night, AS was voluntarily guided onto “all fours” and
appellant started to penetrate her anus. AS directed appellant to stop, explaining
that it hurt. Although he stopped briefly, appellant began to thrust his penis into
AS’s anus again. Later, appellant acknowledged to a CID agent that at the time of
his statement, he felt like he had sexually assaulted AS. Significantly, appellant told
the agent that at the time of the intercourse, he “figured it would be okay” and AS
had given him permission to perform anal sex on her previously.

       In December 2013, appellant was with LR, whom he had previously met
online and then married. After initially consenting to anal intercourse, LR told
appellant to stop, explaining that “it really hurts.” Instead of stopping, appellant
applied more pressure on her back, pushed her face down into a pillow, and stated,
“No. You’ll be fine, take it. It’ll get better after a minute or two.”

       Finally, in August 2014, appellant was with EC, whom he had previously met
online and with whom he had engaged in a sexual relationship the year before. 4
While in EC’s home, appellant became aggressive with EC, grabbing her breasts,
vagina and buttocks without her permission. Although EC struggled with appellant
and managed to get away momentarily, appellant grabbed her and held her by the
throat against a door. Appellant released EC when EC’s roommate awoke and
interceded.

      Prior to trial, the government gave the defense notice it intended to offer the
charged offenses as propensity evidence under Military Rule of Evidence

4
 Trial defense counsel argued that these particular websites were “hook-up sites.”
A reasonable inference, no doubt.
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DENSON—ARMY 20150137

[hereinafter Mil. R. Evid.] 413 and moved the court to make a preliminary ruling on
admissibility. The defense opposed the government’s motion to admit evidence
under Mil. R. Evid. 413. Although the military judge deferred ruling, he ultimately
granted the government’s motion.

                       2. Hills and Hukill Applied to this Case

       After appellant's court-martial, our superior court held it is constitutional
error for a military judge to give an instruction to a panel that permits Mil. R. Evid.
413 to be applied to evidence of charged sexual misconduct. Hills, 75 M.J. at 352.
Our superior court reasoned:

             The instructions in this case provided the members with
             directly contradictory statements about the bearing that
             one charged offense could have on another, one of which
             required the members to discard the accused's presumption
             of innocence, and with two different burdens of proof -
             preponderance of the evidence and beyond a reasonable
             doubt. Evaluating the instructions in toto, we cannot say
             that Appellant's right to a presumption of innocence and to
             be convicted only by proof beyond a reasonable doubt was
             not seriously muddled and compromised by the
             instructions as a whole.

Id. at 357. Recently, in Hukill, the Court of Appeals for the Armed Forces
(C.A.A.F.) explained that the Hills reasoning applies to trials by military judge
alone. Hukill, 76 M.J. at 220. In appellant's court-martial, the military judge
allowed the propensity evidence involving charged offenses to be used against each
charged offense for which appellant was convicted and, therefore, created
constitutional error. Id.

       If instructional error is found when there are constitutional dimensions at
play, this court tests for prejudice under the standard of harmless beyond a
reasonable doubt. United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). The
inquiry for determining whether constitutional error is harmless beyond a reasonable
doubt is whether, beyond a reasonable doubt, the error did not contribute to the
defendant's conviction or sentence. United States v. Kreutzer, 61 M.J. 293, 298
(C.A.A.F. 2005). An error is not harmless beyond a reasonable doubt when there is
a reasonable possibility the error complained of might have contributed to the
conviction. United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007); United
States v. Chandler, 74 M.J. 674, 685 (Army Ct. Crim. App. 2015).

      Here, not only did the military judge’s admission of propensity evidence
provide for the lessening of the burden of proof, the government's closing argument
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DENSON—ARMY 20150137

also drew attention to the propensity evidence. On at least three occasions, trial
counsel urged the factfinder to consider the accused’s propensity to commit sexual
acts of violence against several other victims.

       Having reviewed the evidence, given that this is a case of preserved error, we
are not convinced beyond a reasonable doubt the propensity instruction did not
contribute to the findings of guilty or appellant's sentence. Thus, the findings for
these specifications and charges and the sentence cannot stand. We grant relief in
our decretal paragraph.

                    B. Unreasonable Multiplication of Charges

      With respect to this assignment of error, which appellant has couched in terms
of unreasonable multiplication of charges, appellant’s charges fall into three
categories: assault charges involving LR in January 2014; assault charges involving
LR in February 2014; and assault charges involving AK in May 2013. We first
address the assault charges involving LR.

  1. Specifications 1 and 2 of Charge III and Specifications 3 and 4 of Charge III

    Appellant was found guilty, inter alia, of the following violations of the
UCMJ:

             CHARGE III: Article 128:

             SPECIFICATION 1: [In that appellant] [d]id at or near
             Joint Base Elmendorf-Richardson, Alaska, between about
             1 January 2014 and 30 January 2014, commit an assault
             upon Mrs. L.R. by putting his arm around her neck and
             applying force likely to produce death or grievous bodily
             harm, to wit: strangulation with his arm.

             SPECIFICATION 2: [In that appellant] [d]id at or near
             Joint Base Elmendorf-Richardson, Alaska, between about
             1 January 2014 and 30 January 2014, unlawfully strike
             Mrs. L.R. on the head with his hand.

These specifications stem from appellant's conduct during a single incident in late
January 2014.




                                          5
DENSON—ARMY 20150137

    Appellant was also found guilty, inter alia, of the following violations of the
UCMJ:

             CHARGE III: Article 128:

             SPECIFICATION 3: [In that appellant] [d]id at or near
             Joint Base Elmendorf-Richardson, Alaska, between about
             1 February 2014 and 16 February 2014, unlawfully strike
             Mrs. L.R. on the face with his knee.

             SPECIFICATION 4: [In that appellant] [d]id at or near
             Joint Base Elmendorf-Richardson, Alaska, between about
             1 February 2014 and 16 February 2014, unlawfully pull
             the hair of Mrs. L.R. with his hands.

These specifications stem from appellant's conduct during a single incident in
February 2014.

      After the military judge ruled that he would merge Specifications 1 and 2 of
Charge III for sentencing purposes, as well as merge Specifications 3 and 4 of
Charge III for sentencing purposes, he asked trial defense counsel if there was
“[a]nything else?” Counsel responded, “No, Your Honor. Thank you.” Defense
counsel did not file a motion or otherwise raise the issue of the unreasonable
multiplication of charges for findings.

       Here, the government has conceded the issue. Therefore, we need not decide
whether this is a “unit of prosecution” or unreasonable multiplication of charges
issue. We also need not decide whether appellant has preserved the issue for appeal.
As the government concedes that the specifications are unreasonably multiplied and
we have no reason to reject this concession, we provide appellant relief below.

 2. Unreasonable Multiplication of Charges as Applied to Specifications 1 and 2 of
                              Additional Charge II

       With respect to Specifications 1 and 2 of Additional Charge II, we find no
error. Appellant was found guilty, inter alia, of the following violations of the
UCMJ:

            ADDITIONAL CHARGE II: Article 128:

            SPECIFICATION 1: [In that appellant] [d]id at or near
            Anchorage, Alaska, on or about 16 May 2013, unlawfully
            burn Ms. A.K.’s foot with a cigarette.


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DENSON—ARMY 20150137

            SPECIFICATION 2: [In that appellant] [d]id at or near
            Anchorage, Alaska, on or about 16 May 2013, unlawfully
            poke Ms. A.K.’s leg with a knife.

      Here, the Quiroz factors on balance weigh in favor of the government. See
United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001). First, defense
counsel, after findings, made a motion to merge these specifications - only for
sentencing purposes - on the grounds that they constituted an unreasonable
multiplication of charges. This factor weighs in favor of the government.

       Regarding the second Quiroz factor, it appears that Specifications 1 and 2 of
Additional Charge II were aimed at separate criminal acts. First, appellant used
separate objects to assault AK: a knife and then a lit cigarette. Second, there was a
break between incidents, rather than a continuous assault. This factor weighs in
favor of the government.

      Regarding the third factor, findings of guilty against appellant for all of the
language in the specifications delineated above do not exaggerate appellant's
criminality. This factor weighs in favor of the government.

      Regarding the fourth factor, appellant's punitive exposure was not
unreasonably increased because the court merged the specifications for sentencing
purposes. This factor weighs in favor of the government.

       Finally, because the two acts addressed separate acts of criminal conduct,
there is no evidence of prosecutorial overreaching or abuse in the drafting of the
charges. Thus, the fifth factor weighs in favor of the government.

      On balance, we find the Quiroz factors with respect to these specifications
weigh in favor of the government and, thus, no relief is warranted.

                          C. Speedy Post-Trial Processing

       Appellant requests relief for dilatory post-trial processing, where the
convening authority took action 303 days after the court-martial concluded. Of that
period, none was attributable to defense delay. See United States v. Banks, 75 M.J.
746, 748 (Army Ct. Crim. App. 2016). Appellant requests relief pursuant to this
court's statutory authority. See Article 66(c), UCMJ; United States v. Collazo, 53
M.J. 721 (Army Ct. Crim. App. 2000) (recognizing the statutory authority of Courts
of Criminal Appeals to grant relief for dilatory post-trial processing).

       However, given appellant's meritorious issue regarding the improper use of
propensity evidence of charged misconduct, we must determine if the post-trial delay
violated appellant's due process rights to timely post-trial processing. See Toohey v.
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DENSON—ARMY 20150137

United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (“An appeal that needlessly takes
ten years to adjudicate is undoubtedly of little use to a defendant who has been
wrongly incarcerated on a ten-year sentence.”) (quoting United States v. Smith, 94
F.3d 204, 207 (6th Cir.1996)). Appellant does not ground his post-trial processing
claim as a due process violation. However, we are compelled to determine whether
appellant has suffered a due process violation for several reasons.

       We previously articulated the analysis to be conducted in such a situation in
United States v. Jackson, 74 M.J. 710, 718 (Army Ct. Crim. App. 2015). First, in
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior court
established a “presumption of unreasonable delay that will serve to trigger the full
[Barker v. Wingo, 407 U.S. 514 (1972),] analysis where the action of the convening
authority is not taken within 120 days of the completion of trial.” Second, our
superior court in Moreno further urged this court to exercise “institutional vigilance”
in this area of law. Moreno, 63 M.J. at 143. Lastly, our statutory authority under
Article 66(c) requires us to review the “entire record.” See United States v. Tardif,
57 M.J. 219, 223 (C.A.A.F. 2002) (“Our Court has consistently recognized the broad
power of the Courts of Criminal Appeals to protect an accused.”) (citation omitted).
These reasons sufficiently establish our authority to review whether appellant
suffered a due process violation in the post-trial processing of his case, even though
he did not raise this issue before this court. We do so while acknowledging that the
record may be less developed given the lack of litigation on this issue.

       As noted above, in determining whether post-trial delay results in a due
process violation, we apply the four-factor test announced in Barker. 407 U.S. at
530; see also Moreno, 63 M.J. at 135. These factors include (1) length of the delay,
(2) reasons for the delay, (3) assertion of the right to a timely review and appeal,
and (4) prejudice. Id. “Once this due process analysis is triggered by a facially
unreasonable delay, the four factors are balanced, with no single factor being
required to find that post-trial delay constitutes a due process violation.” Moreno,
63 M.J. at 136. These factors ultimately weigh in favor of appellant.

      First, the length of the delay – 303 days - is facially unreasonable under any
standard. Id. at 142 (establishing a presumption of unreasonable delay when the
convening authority takes action more than 120 days after the trial ends). This 794-
page record, while lengthy, was not particularly complex or unusual. This factor
weighs in favor of appellant.

        Second, the government's explanations for the delay involve a 14-day defense
delay for errata, a 45-day delay for the military judge to authenticate the record of
trial, a 58-day delay for the record to be transcribed, and 135-day delay for defense
counsel to submit clemency on behalf of his client. With respect to the defense
delay to submit clemency, it is the government’s responsibility to hold individuals
accountable for the performance of their duties in the military justice system. See
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DENSON—ARMY 20150137

Banks, 75 M.J. at 748-51 (holding defense counsel to their statutory allowed time for
post-trial). Still, we recognize that the defense requested this delay, and that the
delay presumably benefited appellant. Thus, we consider these facts when deciding
prejudice. With respect to the 58-day delay for the record to be transcribed, our
superior court has held “that personnel and administrative issues ... are not
legitimate reasons justifying otherwise unreasonable post-trial delay.” United States
v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (“To allow caseloads to become a factor
in determining whether appellate delay is excessive would allow administrative
factors to trump the Article 66 and due process rights of appellants.”) (citing
Moreno, 63 M.J. at 137) (additional citations and quotations omitted). The reasons
for delay weigh in favor of appellant.

      Third, there is no evidence before us that appellant asserted his right to
speedy post-trial processing at any time before transcription was complete, before
the military judge authenticated the record of trial, or before the convening authority
took action. This factor weighs in favor of the government.

      Fourth, we apply three factors when analyzing prejudice in the context of a
due process violation for post-trial delay:

             (1) prevention of oppressive incarceration pending
             appeal;

             (2) minimization of anxiety and concern of those
             convicted awaiting the outcome of their appeals; and

             (3) limitation of the possibility that a convicted person's
             grounds for appeal, and his or her defenses in case of
             reversal and retrial, might be impaired.

Moreno, 63 M.J. at 138-39 (citing Rheuark v. Shaw, 628 F.2d 297, 303 n. 8 (5th Cir.
1980)) (additional citations omitted).

       The first sub-factor is “directly related to the success or failure” of appellant's
substantive appeal. Id. at 139. “If the substantive grounds for the appeal are not
meritorious, an appellant is in no worse position due to the delay, even though it
may have been excessive.” Id. (citing Cody v. Henderson, 936 F.2d 715, 720 (2d
Cir. 1991)).

       Appellant's remedy for the Mil. R. Evid. 413 issue is for this court to set aside
appellant's sexual misconduct convictions and the sentence. Put another way,
appellant served confinement as part of a sentence we cannot affirm. “[I]f an appeal
is not frivolous, a person convicted of a crime may be receiving punishment the
effects of which can never be completely reversed or living under the opprobrium of
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DENSON—ARMY 20150137

guilt when he or she has not been properly proven guilty and may indeed be innocent
under the law.” Id. (quoting Rheuark, 628 F.2d at 304). This sub-factor weighs in
favor of appellant.

       The second sub-factor requires “an appellant to show particularized anxiety or
concern that is distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision.” Id. at 140. Our superior court in Moreno concluded
sex-offender registration following release from confinement sufficiently established
this sub-factor, where appellant's ultimately-successful appeal was still pending at
the time of registration. Appellant has not established a factual predicate that he has
been released yet from confinement and been placed on a sex-offender registry. Cf.
United States v. Bush, 68 M.J. 96, 100 (C.A.A.F. 2009) (requiring an appellant to
produce corroborating evidence of employment prejudice). At the same time, we are
cognizant sex-offender registration is an “automatic result” after some sex crime
convictions. United States v. Riley, 72 M.J. 115, 121 (C.A.A.F. 2013) (citations
omitted); see also Dep't of Def. Instr. 1325.07, Administration of Military
Correctional Facilities and Clemency and Parole Authority, app'x. 4 to enclosure 2
(March 11, 2013) (establishing offenses requiring sex offender registration within
three days of release from confinement, including abusive sexual contact with a
child). Because appellant has not established whether he has registered as a sex
offender yet, this factor weighs slightly in favor of the government.

       The third sub-factor is relevant when a rehearing is authorized, as is the case
here. Moreno, 63 M.J. at 140. “In order to prevail on this factor an appellant must
be able to specifically identify how he would be prejudiced at rehearing due to
delay. Mere speculation is not enough.” Id. at 140-41 (citation omitted). Because
appellant did not raise a due process claim, his brief does not address this issue.
However, we also acknowledge the difficulty on appeal “in identifying problems that
would hinder an appellant's ability to present a defense at a rehearing.” Id. at 141 n.
19. This factor also weighs slightly in favor of the government.

       In balancing the Barker factors, we have an appellant who, for nearly one year
of post-trial processing from sentencing to action, had a meritorious appeal
warranting a rehearing. As a result of the post-trial delay, appellant served
oppressive incarceration. The government's reasons for this delay are unavailing
given the constitutional rights at issue. These factors outweigh appellant's failure to
assert his right to speedy post-trial processing, establish particularized anxiety or
articulate any prejudice he would suffer at a rehearing. For the same reasons, we
cannot conclude that the post-trial delay was harmless beyond a reasonable doubt.
See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006) (“If we conclude that
an appellant has been denied the due process right to speedy post-trial review and
appeal, ‘we grant relief unless this court is convinced beyond a reasonable doubt
that the constitutional error is harmless.’”) (quoting Toohey, 63 M.J. at 363).


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DENSON—ARMY 20150137

     Having found a due process violation, we must determine an appropriate
remedy. In Moreno, our superior court listed a range of available remedies:

             (a) day-for-day reduction in confinement or confinement
             credit; (b) reduction of forfeitures; (c) set aside of
             portions of an approved sentence including punitive
             discharges; (d) set aside of the entire sentence, leaving a
             sentence of no punishment; (e) a limitation upon the
             sentence that may be approved by a convening authority
             following a rehearing; and (f) dismissal of the charges and
             specifications with or without prejudice.

63 M.J. at 143.

      As in Moreno, our range of available remedies is limited because we are
authorizing a rehearing. Given that appellant has not demonstrated any prejudice he
would face at that rehearing, dismissal of the charges and specifications is not
appropriate at this stage of the proceedings.

      Since we are setting aside the sentence, we cannot as a matter of logic only
approve certain portions of the sentence, a common remedy when we grant relief
pursuant to Article 66, UCMJ.

       Appellant has already served nearly half of his confinement. In our view, the
appropriate remedy is to limit the possible punishment that the convening authority
may approve to a bad-conduct discharge, sixty-six months confinement, forfeiture of
all pay and allowances, and reduction to the grade of E–1, unless the government
tries appellant for additional offenses not tried at the first court-martial. See Article
63, UCMJ.

                                    CONCLUSION

       The findings of guilty as to Charge II and its specifications and Additional
Charge I and its specifications are set aside in light of our superior court’s decisions
in Hills and Hukill. 75 M.J. 350; 76 M.J. 219.

       Specifications 2 and 4 of Charge III are conditionally dismissed based on an
unreasonable multiplication of charges. See United States v. Britton, 47 M.J. 195,
203 (C.A.A.F. 1997) (J. Effron concurring); United States v. Hines, 75 M.J. 734, 738
n.4 (Army. Ct. Crim. App. 2016); United States v. Woods, 21 M.J. 856, 876
(A.C.M.R. 1986). Our dismissal is conditioned on Specifications 1 and 3 of Charge
III surviving the “final judgment” as to the legality of the proceedings. See Article
71(c)(1), UCMJ (defining final judgment as to the legality of the proceedings). The
remaining findings of guilty are AFFIRMED.
                                           11
DENSON—ARMY 20150137


       Additionally, the sentence is set aside. The case is returned to the same or a
different convening authority. A rehearing is directed on Charge II and its
specifications, Additional Charge I and its specifications, and the sentence. If the
convening authority determines that a rehearing on those charges is impracticable,
he may dismiss the charges and order a rehearing on the sentence only. If the
convening authority determines that a rehearing on the sentence likewise is
impracticable, he may take any other lawful action. In any event, the convening
authority shall not approve a sentence in excess of a bad-conduct discharge, sixty-
six months confinement, forfeiture of all pay and allowances, and reduction to the
grade of Private E–1, unless the government tries appellant for additional offenses
not tried at the first court-martial.

      Senior Judge MULLIGAN and Judge WOLFE concur.

                                        FOR THE COURT:




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




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