United States v. McPHAUL

Opinion

This opinion is subject to administrative correction before final disposition.

Before

GASTON, HOUTZ, and BAKER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Leal L. M C PHAUL

Aviation Boatswain’s Mate (Handling) Airman Recruit (E-1)

U.S. Navy

Appellant No. 202000195

Decided: 25 February 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Benjamin B. Robertson

Sentence adjudged 14 May 2020 by a special court-martial convened at Naval Station Norfolk, Virginia, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: confinement for ninety-four days and a bad-conduct discharge.

For Appellant:

Captain Kimberly D. Hinson, JAGC, USN

For Appellee: Brian K. Keller, Esq.

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, 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. Uniform Code of Military Justice arts. 59, 66, 10 U.S.C. §§ 859, 866. However, we note that the Entry of Judgment does not accurately reflect the disposition of the charges. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). 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:

RODGER A. DREW, JR. Clerk of Court

UNITED STATES NMCCA NO. 202000195

v. ENTRY OF

Leal L. M C PHAUL JUDGMENT Aviation Boatswain’s Mate (Handling) Airman Recruit (E-1) As Modified on Appeal U.S. Navy Accused

25 February 2021

On 14 May 2020, the Accused was tried at Naval Station Norfolk, Virginia, by a special court-martial, consisting of a military judge sitting alone. Military Judge Benjamin B. Robertson 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: Not Guilty. Finding: Not Guilty.

Specification: Desertion with the intent to shirk important service from on or about 7 January 2020 until apprehension on or about 9 February 2020. Plea: Not Guilty. Finding: Not Guilty.

Charge II: Violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Plea: Guilty. Finding: Guilty.

Modified Entry of Judgment

Specification 1: Absence from unit from on or about 29 December 2019 until on or about 4 January 2020. Plea: Guilty. Finding: Guilty.

Specification 2: Absence from unit from on or about 7 January 2020 until on or about 9 February 2020. Plea: Guilty. Finding: Dismissed as unreasonable multiplication of charges with the Additional Charge of desertion, conditional upon completion of appellate review for the Additional Charge.

Charge III: Violation of Article 87, Uniform Code of Military Justice, 10 U.S.C. § 887. Plea: Guilty. Finding: Guilty.

Specification: Missing movement through design on or about 17 January 2020. Plea: Guilty. Finding: Guilty.

Charge IV: Violation of Article 87b, Uniform Code of Military Justice, 10 U.S.C. § 887b. Plea: Guilty. Finding: Guilty.

Specification: Breach of restriction on or about 29 December 2019. Plea: Guilty. Finding: Guilty.

Charge V: Violation of Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891. Plea: Guilty. Finding: Guilty.

Specification: Willful disobedience of a petty officer on or about 7 January 2020. Plea: Guilty. Finding: Guilty.

3

Modified Entry of Judgment

Charge VI: Violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Plea: Guilty. Finding: Guilty.

Specification 1: Wrongful use of a controlled substance on or about 3 September 2019. Plea: Guilty. Finding: Guilty.

Specification 2: Wrongful use of a controlled substance on or about 25 October 2019. Plea: Guilty. Finding: Guilty.

Specification 3: Wrongful use of a controlled substance on or about 7 November 2019. Plea: Guilty. Finding: Guilty.

Specification 4: Wrongful use of a controlled substance on or about 9 February 2020. Plea: Guilty. Finding: Guilty.

Additional Charge: Violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885. Plea: Guilty. Finding: Guilty.

Specification: Desertion from on or about 7 January 2020 until apprehension on or about 9 February 2020. Plea: Guilty. Finding: Guilty.

4

Modified Entry of Judgment

SENTENCE

On 14 May 2020, a military judge sentenced the Accused to the following: Confinement for ninety-four days. A bad-conduct discharge. The Accused is credited with ninety-nine days’ confinement credit, to be deducted from the adjudged sentence to confinement.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court