This opinion is subject to administrative correction before final disposition.
Before HACKEL, KIRKBY, and DALY Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Kevin D. ANTHONY Culinary Specialist Chief Petty Officer (E-7), U.S. Navy Appellant
No. 202300167
Decided: 13 February 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Matthew C. Cox
Sentence adjudged 16 May 2023 by a special court-martial convened at Naval Station Norfolk, Virginia, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-6, confine- ment for six months, a fine of $1,000, and a bad-conduct discharge. 1
For Appellant: Lieutenant Commander Matthew A. Kozyra, JAGC, USN
1 Appellant was credited with having served 133 days of pretrial confinement. United States v. Anthony, NMCCA No. 202300167 Opinion of the Court
This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a).
PER CURIAM: After careful consideration of the record, submitted without assignment of error, and Appellant having not challenged the factual sufficiency of this case, we have determined that the findings are correct in law, the sentence is correct in law and fact, and that no error materially prejudicial to Appellant’s substan- tial rights occurred. 2 However, we note that the Entry of Judgment does not reflect the correct adjudged sentence. 3 Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. 4 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. The findings and sentence are AFFIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
2 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.
3 See Block 12 of the Entry of Judgment.
4 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
2 This opinion is subject to administrative correction before final disposition.
UNITED STATES NMCCA NO. 202300167
v. ENTRY OF Kevin D. ANTHONY JUDGMENT Culinary Specialist Chief Petty Of- ficer (E-7) As Modified on Appeal U.S. Navy Accused 13 February 2024
On 16 May 2023, the Accused was tried at Naval Station Norfolk, Virginia, by a special court-martial, consisting of a military judge sitting alone. Military Judge Mat- thew C. Cox presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:
Charge I: Violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885. Plea: Guilty. Finding: Guilty.
Specification: On or about 25 July 2022, at or near NAS Oceana, Virginia, without authority and with intent to remain away therefrom permanently, absent himself from his unit to wit: NAS Oceana, Virginia, and did remain so absent in desertion until he was apprehended on or about 3 January 2023. Plea: Guilty. Finding: Guilty.
Charge II: Violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Plea: Not Guilty.
1 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 1: On or about July 2021, to on or about January 2022, violate a lawful general order, which was his duty to obey, to wit: SECNAVINST 5300-26E, dated 28 May 2020, by sexually harassing Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 2: Knew or should have known of his duties, at or near NAS Oceana, Virginia, on or about 23 March 2022, was derelict in the performance of those duties in that he willfully failed to obtain by direction authority to draft a memorandum on command letterhead for his personal use, as it was his duty to do. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge III: Violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. Plea: Guilty. Finding: Guilty.
Specification 1: On divers occasions, from on or about 13 October 2021 to on or about 15 April 2022, at or near NAS Oceana, Virginia, steal gasoline, of a value of over $1,000, the property of Navy Exchange Dam Neck. Plea: Guilty. Finding: Guilty.
Specification 2: On divers occasions, from on or about 26 June 2021 to on or about 11 January 2022, at or near NAS Oceana, Virginia, steal MWR Committee Funds, of a value of about $800.00, the property of the MWR Committee, to wit: made ATM withdrawals from the MWR Committee Account. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge IV: Violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928.
2 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification: Between on or about February 2022 and on or about March 2022, unlawfully grab Culinary Specialist Third Class Petty Officer J.Y., U.S. navy, by the hand with the accused’s hand. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge V: Violation of Article 131b, Uniform Code of Military Justice, 10 U.S.C. § 131b. Plea: Guilty. Finding: Guilty.
Specification 1: On or about February 2022, wrongfully do a certain act, to wit: instructed Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, to delete text messages from her personal cellular phone between the accused and Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, in the accused’s presence, with the intent to obstruct the due administration of justice in the case of Culinary Specialist Chief Petty Officer Kevin D. Anthony, against whom the accused had reason to believe that there were or would be disciplinary proceedings pending. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 2: On or about 26 April 2022, wrongfully do a certain act, to wit: as the Dam Neck Annex UH LCPO, communicate to Naval Facilities Engineering Systems Command Mid-Atlantic, “Thank you for the information and no investigation is needed at this time,” in response to a Command inquiry into the fraudulent use of the Fleet Fuel Card and request, “Just let us know how you would like the proceed,” fraudulent use he had knowledge of and was individually responsible for, with the intent to obstruct the due administration of justice in the case of Culinary Specialist Chief Petty Officer Kevin D. Anthony, against who the accused had reason to
3 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
believe that there were or would be disciplinary proceedings pending. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 3: On or about 27 April 2022, wrongfully do a certain act, to wit: directed Machinery Repairman First Class Petty Officer John Roberts, U.S.
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This opinion is subject to administrative correction before final disposition.
Before HACKEL, KIRKBY, and DALY Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Kevin D. ANTHONY Culinary Specialist Chief Petty Officer (E-7), U.S. Navy Appellant
No. 202300167
Decided: 13 February 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Matthew C. Cox
Sentence adjudged 16 May 2023 by a special court-martial convened at Naval Station Norfolk, Virginia, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-6, confine- ment for six months, a fine of $1,000, and a bad-conduct discharge. 1
For Appellant: Lieutenant Commander Matthew A. Kozyra, JAGC, USN
1 Appellant was credited with having served 133 days of pretrial confinement. United States v. Anthony, NMCCA No. 202300167 Opinion of the Court
This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a).
PER CURIAM: After careful consideration of the record, submitted without assignment of error, and Appellant having not challenged the factual sufficiency of this case, we have determined that the findings are correct in law, the sentence is correct in law and fact, and that no error materially prejudicial to Appellant’s substan- tial rights occurred. 2 However, we note that the Entry of Judgment does not reflect the correct adjudged sentence. 3 Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. 4 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. The findings and sentence are AFFIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
2 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.
3 See Block 12 of the Entry of Judgment.
4 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
2 This opinion is subject to administrative correction before final disposition.
UNITED STATES NMCCA NO. 202300167
v. ENTRY OF Kevin D. ANTHONY JUDGMENT Culinary Specialist Chief Petty Of- ficer (E-7) As Modified on Appeal U.S. Navy Accused 13 February 2024
On 16 May 2023, the Accused was tried at Naval Station Norfolk, Virginia, by a special court-martial, consisting of a military judge sitting alone. Military Judge Mat- thew C. Cox presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the convening authority referred to trial:
Charge I: Violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885. Plea: Guilty. Finding: Guilty.
Specification: On or about 25 July 2022, at or near NAS Oceana, Virginia, without authority and with intent to remain away therefrom permanently, absent himself from his unit to wit: NAS Oceana, Virginia, and did remain so absent in desertion until he was apprehended on or about 3 January 2023. Plea: Guilty. Finding: Guilty.
Charge II: Violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Plea: Not Guilty.
1 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 1: On or about July 2021, to on or about January 2022, violate a lawful general order, which was his duty to obey, to wit: SECNAVINST 5300-26E, dated 28 May 2020, by sexually harassing Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 2: Knew or should have known of his duties, at or near NAS Oceana, Virginia, on or about 23 March 2022, was derelict in the performance of those duties in that he willfully failed to obtain by direction authority to draft a memorandum on command letterhead for his personal use, as it was his duty to do. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge III: Violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. Plea: Guilty. Finding: Guilty.
Specification 1: On divers occasions, from on or about 13 October 2021 to on or about 15 April 2022, at or near NAS Oceana, Virginia, steal gasoline, of a value of over $1,000, the property of Navy Exchange Dam Neck. Plea: Guilty. Finding: Guilty.
Specification 2: On divers occasions, from on or about 26 June 2021 to on or about 11 January 2022, at or near NAS Oceana, Virginia, steal MWR Committee Funds, of a value of about $800.00, the property of the MWR Committee, to wit: made ATM withdrawals from the MWR Committee Account. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge IV: Violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928.
2 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification: Between on or about February 2022 and on or about March 2022, unlawfully grab Culinary Specialist Third Class Petty Officer J.Y., U.S. navy, by the hand with the accused’s hand. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Charge V: Violation of Article 131b, Uniform Code of Military Justice, 10 U.S.C. § 131b. Plea: Guilty. Finding: Guilty.
Specification 1: On or about February 2022, wrongfully do a certain act, to wit: instructed Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, to delete text messages from her personal cellular phone between the accused and Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, in the accused’s presence, with the intent to obstruct the due administration of justice in the case of Culinary Specialist Chief Petty Officer Kevin D. Anthony, against whom the accused had reason to believe that there were or would be disciplinary proceedings pending. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 2: On or about 26 April 2022, wrongfully do a certain act, to wit: as the Dam Neck Annex UH LCPO, communicate to Naval Facilities Engineering Systems Command Mid-Atlantic, “Thank you for the information and no investigation is needed at this time,” in response to a Command inquiry into the fraudulent use of the Fleet Fuel Card and request, “Just let us know how you would like the proceed,” fraudulent use he had knowledge of and was individually responsible for, with the intent to obstruct the due administration of justice in the case of Culinary Specialist Chief Petty Officer Kevin D. Anthony, against who the accused had reason to
3 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
believe that there were or would be disciplinary proceedings pending. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 3: On or about 27 April 2022, wrongfully do a certain act, to wit: directed Machinery Repairman First Class Petty Officer John Roberts, U.S. Navy to make certain fraudulent looking charges in the Government Fleet Card records go away, with the intent to obstruct the due administration of justice in the case of Culinary Specialist Chief Petty Officer Kevin D. Anthony, against whom the accused had reason to believe that there were or would be disciplinary proceedings pending. Plea: Guilty. Finding: Guilty.
Charge VI: Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 1: From on or about January 2022 to on or about April 2022, knowingly make sexual advances, to wit be saying to Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, “How would you like it if your pussy was eaten out,” “I would like to wear your ass as earmuffs,” “Do you want to sleep together,” “So now you can go hoe-ing around,” and that he was “starting to catch feelings,” for her, or words to that effect, that such conduct was unwelcome; and under the circumstances was so severe, repetitive, or pervasive that a reasonable person would perceive, and Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, did perceive, an intimidating, hostile, or offensive, working environment; and that such conduct was to the prejudice of good order and discipline in the armed forces. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
Specification 2: On or about 23 March 2022, direct Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy, his subordinate, to sign her name in the signature block of
4 United States v. Anthony, NMCCA No. 202300167 Modified Entry of Judgment
a memorandum drafted on command letterhead, knowing he did not have the authority to issue the order and Culinary Specialist Third Class Petty Officer J.Y., U.S. Navy did not have the authority to sign, and that such conduct was to the prejudice of good order and discipline in the armed forces. Plea: Not Guilty. Finding: Withdrawn and dismissed IAW the plea agreement.
SENTENCE
On 16 May 2023, a military judge sentenced the Accused to the following: Reduction to pay grade E-6. For the sole Specification of Charge I: confinement for six months. For Specification 1 of Charge III: confinement for six months. For Specification 3 of Charge V: confinement for six months. The terms of confinement will run concurrently. Confinement for a total of six months. For Specification 1 of Charge III: A fine of $1,000. A bad-conduct discharge. The Accused has served 133 days pretrial confinement and shall be credited with 133 days of pretrial confinement already served, to be deducted from the adjudged sentence to confinement for six months.