United States v. Specialist FLEMING A. VALERIO

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