United States v. McGrew

53 M.J. 522, 2000 CCA LEXIS 114, 2000 WL 519275
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 28, 2000
DocketNMCM 98 01751
StatusPublished

This text of 53 M.J. 522 (United States v. McGrew) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McGrew, 53 M.J. 522, 2000 CCA LEXIS 114, 2000 WL 519275 (N.M. 2000).

Opinion

DORMAN, Senior Judge:

The appellant stands convicted by a special court-martial consisting of a military judge sitting alone. At trial the appellant plead guilty to a one-day unauthorized absence and intentionally missing movement of his ship. The military judge determined that the appellant’s pleas were providently entered and found the appellant guilty consistent with his pleas. The appellant’s offenses violated Articles 86 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 887. The approved sentence includes confinement for 75 days, reduction to pay grade E-1, and a bad-conduct discharge. The sentence to confinement in excess of 30 days was suspended in accordance with the terms of the appellant’s pretrial agreement.

We have carefully reviewed the record of trial, the appellant’s four assignments of error, and the Government’s response. We find that the appellant’s conviction for unauthorized absence is multiplicious with his offense of missing movement through design, and that the appellant is entitled to sentencing relief. Following our corrective action, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

The Facts

The appellant was attached to the 13th Marine Expeditionary Unit on board the USS PELELIU when it pulled into Darwin, Australia, for a liberty call in February 1998. Upon arrival in Darwin, the appellant’s com[524]*524manding officer advised him of the approximate time the ship would be lifting anchor on 3 February 1998. On 2 February, the appellant caught the liberty boat with two other Marines from his unit, Lance Corporals Biezad and Priest, and went ashore. That evening, instead of returning to the ship, they spent the night at the home of a female acquaintance they had met in Darwin. The next day, 3 February, when the USS PELELIU set sail, the appellant and his two shipmates were not on board. That afternoon, the appellant called back to Camp Pendleton to obtain instructions on how to return to his unit. Following those instructions, the three Marines surrendered to Australian military authorities on 4 February. Upon his return to Camp Pendleton, the appellant spent 49 days in pretrial restriction.

Charges against all three Marines were eventually referred for trial by special courts-martial by the same convening authority. All three were court-martialed for a one-day unauthorized absence and for missing movement of the USS PELELIU by design. Those were the only charges that LCpl Priest faced. Consistent with his plea, LCpl Priest was convicted and sentenced to 45 days confinement, forfeiture of $250 pay per month for 2 months, and reduction to E-2. The same military judge who sentenced the appellant sentenced LCpl Priest. LCpl Biezad was also charged with an orders violation for possessing drug paraphernalia, and the possession and use of anabolic steroids. LCpl Biezad was convicted, consistent with his pleas, of all 5 offenses. A different military judge sentenced him to confinement for 45 days, forfeiture of $600 pay per month for one month, and reduction to E-2.

In addition to the unauthorized absence and the missing movement offenses, the appellant was charged with, and convicted of, an orders violation concerning his failure to properly sign out on liberty from the ship. The military judge sentenced the appellant to 75 days confinement, forfeiture of $617 pay per month for 3 months, reduction to E-l, and a bad-conduct discharge. In taking his action, the convening authority dismissed the orders violation and reassessed the sentence by not approving the forfeitures. This reassessment, however, provided no meaningful relief because the appellant was already on appellate leave by the time the action was taken, and some of the forfeiture was imposed before the appellant’s appellate leave began. Additionally, when he took action in the appellant’s case the convening authority did not indicate what action he took in the courts-martial of LCpls Priest and Biezad.

Companion Cases

In his first assignment of error, the appellant argues that his bad-conduct discharge is inappropriately severe. The appellant highlights the fact that this was his first offense (and a relatively minor one), that he had served honorably for a year-and-a-half, his proficiency and conduct marks averaged 4.4/4.4, and that he had received the Armed Forces Expeditionary Medal, the Sea Service Deployment Ribbon, and the Rifle Sharpshooter Badge. The appellant also argues that his sentence is highly disparate from the sentences imposed in the closely related cases of LCpls Priest and Biezad. He also asserts that, since the cases are closely related and since there are no good or cogent reasons for the disparity in his sentence when compared to the other two, we should set aside his bad-conduct discharge. Appellant’s Brief of 18 August 1999 at 4-8. The appellant’s second assignment of error is related to the first. There, he argues that under the Manual of the Judge Advocate General, § 0151(A)(2),1 at the time the convening authority acted in his case, he was required to state what action he took in the cases of LCpls Priest and Biezad. Appellant’s Brief of 18 August 1999 at 8-10.

In response, the Government argues that the appellant’s sentence is appropriate, and that the three cases are not closely related. The Government clearly takes issue with the appellant’s suggestion that his misconduct was not that severe. The Government argues that the “appellant’s complete disregard for the detrimental effect that his missing movement had on his command’s operations, the increased workload of his shipmates, and the manpower used to return him to his unit [525]*525warranted his discharge.” Government Brief of 18 January 2000 at 4. While the Government’s argument is intuitively accurate, we find no evidence in the record to support it. The Government argues that even if the cases are closely related, the sentences are not highly disparate.

In raising the issue of sentence disparity, the appellant has the burden of “demonstrating that any cited cases are ‘closely related’ to his ... case and that the sentences are ‘highly disparate.’ ” United States v. Lacy, 50 M.J. 286, 288 (1999). In assessing whether cases are closely related, our superior court looks to such issues as “coaetors involved in a common crime, servieemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Lacy, 50 M.J. at 288 (emphasis added). Additionally, in United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R.1994), we defined “closely related cases” as those cases that “involve offenses that are similar in both nature and seriousness or which arise from a common scheme or design.” Applying these criteria, we find that the appellant has met his burden of demonstrating that his case is closely related to those of LCpls Biezad and Priest.

We next consider whether the appellant has met his burden of demonstrating that the sentences are highly disparate.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Lacy
50 M.J. 286 (Court of Appeals for the Armed Forces, 1999)
United States v. Cook
48 M.J. 434 (Court of Appeals for the Armed Forces, 1998)
United States v. Olinger
47 M.J. 545 (Navy-Marine Corps Court of Criminal Appeals, 1997)
United States v. Ortiz
52 M.J. 739 (Navy-Marine Corps Court of Criminal Appeals, 2000)
United States v. Johnson
12 C.M.A. 640 (United States Court of Military Appeals, 1962)
United States v. Sales
22 M.J. 305 (United States Court of Military Appeals, 1986)
United States v. Ohrt
28 M.J. 301 (United States Court of Military Appeals, 1989)
United States v. Peoples
29 M.J. 426 (United States Court of Military Appeals, 1990)
United States v. Evans
35 M.J. 754 (U.S. Navy-Marine Corps Court of Military Review, 1992)
United States v. Kelly
40 M.J. 558 (U.S. Navy-Marine Corps Court of Military Review, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
53 M.J. 522, 2000 CCA LEXIS 114, 2000 WL 519275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcgrew-nmcca-2000.