United States v. Bork

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: January 20, 2022
• Docket: 202000191
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before GASTON, HOLIFIELD, and HOUTZ Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Timothy BORK Hospital Corpsman First Class (E-6), U.S. Navy (Retired) Appellant

No. 202000191

Decided: 20 January 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Chad C. Temple

Sentence adjudged 15 May 2020 by a general court-martial convened at Naval Base San Diego, California, consisting of a military judge sitting alone. Sentence approved by the convening authority: confinement for six years and a dishonorable discharge.

For Appellant: Captain Daniel J. McCoy, JAGC, USN

For Appellee: Lieutenant Nicholas Hathaway, USCG Major Clayton L. Wiggins, USMC United States v. Bork, NMCCA No. 202000191 Opinion of the Court

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.

PER CURIAM: Appellant was convicted, pursuant to his pleas, of one specification of sex- ual assault of a child and four specifications of sexual abuse of a child, in vio- lation of Article 120b, Uniform Code of Military Justice [UCMJ], 1 for discuss- ing, viewing, and engaging in various sexual activity with a 15-year-old. Appellant asserts two assignments of error [AOEs]: (1) that Article 2(a)(6), UCMJ, violates Fifth Amendment equal protection by subjecting members of the Fleet Reserve to UCMJ jurisdiction while excluding Reservists and Reserve retirees from such jurisdiction when not on active duty; and (2) that Appellant, a Fleet Reservist, does not have a sufficient current connection to the military for Congress to subject him to constant UCMJ jurisdiction. We find no preju- dicial error and affirm.

I. DISCUSSION

Appellant was an active-duty Sailor for 21 years before retiring and becom- ing a member of the Fleet Reserve, in which status he committed the offenses for which he was convicted at court-martial. In United States v. Begani, which was decided after the parties submitted their briefs, our superior court held that Article 2(a)(6)’s subjecting of members of the Fleet Reserve and not retired Reservists to UCMJ jurisdiction does not violate equal protection. 2 In the same case, which is binding precedent on this Court, our superior court reiterated

1 10 U.S.C. § 920b. 2 United States v. Begani, 81 M.J. 273, 281 (C.A.A.F. 2021), cert. denied, ___ U.S. ___, 211 L. Ed. 2d 400 (2021). We find the court’s reasoning applies equally with respect to the exclusion from UCMJ jurisdiction of non-retired Reservists when not on active duty.

2 United States v. Bork, NMCCA No. 202000191 Opinion of the Court

its previous holding that members of the Fleet Reserve have a sufficient cur- rent connection to the military such that Congress may constitutionally subject them to UCMJ jurisdiction. 3 We therefore find no merit in Appellant’s AOEs.

II. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. 4 The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

3 Id. 4 Articles 59 & 66, UCMJ.