FORT HOOD — A judge said he plans to recommend that a soldier’s sexual assault conviction be overturned.

During the sentencing phase of the court-martial of Pfc. Thomas A. Chestnut Jr. on Wednesday, Col. Gregory Gross, the judge in the case, said he researched how to overturn the conviction himself, but he can’t.

“I’ll recommend the convening authority overturn the conviction,” he said.

Chestnut was found guilty by a military jury June 24 of one specification of sexual assault and found not guilty of one specification of assault consummated by a battery.

Three-year prison term

Chestnut was sentenced Wednesday to three years in prison, reduction in rank to private and a dishonorable discharge.

“It’s extraordinary,” said retired Lt. Col. Geoffrey S. Corn, a law professor at South Texas College of Law. “What that tells you is Judge Gross ... is just convinced that an innocent person has been convicted.”

Maj. Gen. Michael Bills, 1st Cavalry Division commander, is the convening authority in Chestnut’s court-martial.

Chestnut’s conviction stems from an incident with a male soldier in his Fort Sam Houston barracks room in August 2012. Chestnut, 25, is an openly gay medic from Dripping Springs assigned to the 1st Cavalry Division’s 3rd Brigade Combat Team.

In an unsworn statement, Chestnut said he had an encounter with the victim, who was taking Ambien at the time. Chestnut said he didn’t know about the sleeping medication and thought the sex was consensual.

“I wish that I had spoken up for myself sooner, and I am sorry for that,” he told the panel of eight Army officers Wednesday. “In those 45 minutes had I known ... It was not worth this.”

Co-workers, his mother and boyfriend testified about Chestnut’s character, hoping to sway the jury to opt for a lighter sentence.

“Turning over a guilty finding is very uncommon to begin with,” said Corn, adding the jury may have “felt some sense of obligation to return some conviction of a sexual offense because of the current atmosphere.”

One compromise would be to order a new trial, Corn said.

No conviction has been overturned by the convening authority at Fort Hood over the past year, according to III Corps officials.

Read more about Chestnut’s case in Wednesday’s Fort Hood Herald.

Rose L. Thayer is the military editor for the Killeen Daily Herald. She joined the paper in February 2011 as a health and military reporter. View her complete profile Here. You can contact Rose L. Thayer at or (254) 501-7463. Follow her on Twitter at KDHmilitary.

Rose L. Thayer is the military editor for the Killeen Daily Herald. She joined the paper in February 2011 as a health and military reporter. View her complete profile Here.

(3) comments


I have to ask this question in fairness - if it were a male that was on trial for having intercourse with a female soldier that he did not realize was on under the influence of this particular drug, would the same judge be trying just as hard to exonerate him as well. Or, and this question has to be asked, is the judge trying so hard because it is a same-sex case? With the current government pushing for open integration as hard as they have been, is the judge, the military and the government afraid this will shed light on some things they would rather keep in the dark? Maybe the answer is no but, it has to be asked.


Why did the defense not ask for, and the judge consider a ruling consistent with his power to dismiss after a members finding of guilt. I have used this in prior cases.
The authority is found in United States v. Griffiths, a Court of Appeals for the Armed Forces case found here.

The Court of Military Appeals has recently reiterated its position that, under certain circumstances, the MJ may set aside a finding of guilty after announcement. See United States v. Scaff, 29 M.J. 60 (C.M.A. 1989); United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).


Had the law been followed in the first place, the accused would not be on active duty, having the personal behavior traits he has. The victim would not then have been homosexually raped.

The accused was found guilty at trial and the punishment must be imposed.

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