United States v. Cheeseman

CCA 200900567. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), said petition is granted on the following specified issue:

WHETHER APPELLANT’S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c)(2), UCMJ, SHOULD BE SET ASIDE IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES v. NEAL, 68 M.J. 289 (C.A.A.F. 2010), AND UNITED STATES v. PRATHER, 69 M.J. 338 (C.A.A.F. 2011).

It is further ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge III and Specification 1 thereunder and as to the sentence, but affirmed in all other respects. The findings as to Charge III and Specification 1 thereunder and the sentence are set aside. The *128record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority who may order a rehearing on the affected charge and sentence. Alternatively, a rehearing on sentence only may be ordered with regard to the affirmed findings.