This opinion is subject to administrative correction before final disposition.
Before KISOR, BAKER, and MIZER Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Emmanuel ROMAN, Jr. Gas Turbine Systems Technician (Electrical) Fireman Appren- tice (E-2), U.S. Navy Appellant
No. 202300176
Decided: 29 April 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: John J. Stephens
Sentence adjudged 20 April 2023 by a special court-martial convened at Naval Station Great Lakes, Illinois, consisting of a military judge sit- ting alone. Sentence in the Entry of Judgment: confinement for 70 days and a bad-conduct discharge. 1
For Appellant: Lieutenant Raymond E. Bilter, JAGC, USN
1 Appellant was credited with having served 99 days of pretrial confinement. United States v. Roman, NMCCA No. 202300176 Opinion of the Court
For Appellee: Lieutenant Lan T. Nguyen, JAGC, USN Lieutenant Commander James P. Wu Zhu, JAGC, USN
Judge BAKER delivered the opinion of the Court, in which Senior Judge KISOR and Judge MIZER joined.
This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.
BAKER, Judge: Appellant was convicted, consistent with his pleas, of one specification of absence without leave, in violation of Article 86, Uniform Code of Military Jus- tice [UCMJ], 2 and one specification of wrongful use of a controlled substance, in violation of Article 112a, UCMJ. 3 In his sole assignment of error, Appellate asserts that the Entry of Judg- ment fails to comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(a) be- cause it does not correctly summarize each specification, with the exception of Charge IV. We find no prejudicial error. However, to ensure that Appellant’s record of trial is correct and accurately reflects the proceedings, we take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record.
I. BACKGROUND
On 27 October 2023, Appellant accepted nonjudicial punishment for violat- ing Article 112a, UCMJ, by wrongfully using various controlled substances. For this misconduct, his Commanding Officer imposed 45 days restriction and 45 days of extra duties. 4 Roughly two weeks into restriction, Appellant left Na- val Station Great Lakes, without prior authorization, staying at a hotel for two
2 10 U.S.C. § 886.
3 10 U.S.C. § 912a.
4 Pros. Ex. 1 at 1-2.
2 United States v. Roman, NMCCA No. 202300176 Opinion of the Court
days before returning to his unit. 5 On 20 April 2023, the military judge con- victed Appellant of unauthorized absence and wrongful use of a controlled sub- stance consistent with his pleas and in accordance with his plea agreement. The plea agreement required the military judge to adjudge a bad-conduct dis- charge. 6 The Entry of Judgment contained a purported summary of each charge and specification. 7 Appellant made no post-trial motion to correct the judgment entered by the military judge. 8
II. DISCUSSION
Whether a record of trial is accurate and complete is a question we review de novo. 9 An appellant is entitled to have the official record accurately reflect what happened in the proceedings. 10 Appellant submits that the military judge erred in certifying the Entry of Judgment, which failed to summarize the charges and specifications, with the exception of Charge IV (violation of Article 112a, UCMJ). The Government submits that the military judge properly sum- marized the charges and specifications. An entry of judgment must “include, at a minimum, the gravamen of the offense.” 11 We find that, contrary to the Government’s contention, the Entry of Judgment, other than Charge IV, failed to provide a legally sufficient summary of the charges and specifications. 12 R.C.M. 1111(b) requires that an entry of judgment include, for each charge referred to court-martial, a summary of each charge and specification, the plea of the accused, and the disposition of each charge, as well as the sentence adjudged.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings are correct in law, the sentence is correct in
5 Id. at 2. 6 App. Ex. I at 14.
7 Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A).
8 R.C.M. 1104(b)(2)(C).
9 United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998).
10 Id. at 539.
11 United States v. Booker, 83 M.J. 595, 598 (N-M. Ct. Crim. App. 2023).
12 R.C.M. 1111(b)(1)(A).
3 United States v. Roman, NMCCA No. 202300176 Opinion of the Court
law and fact, and that no error materially prejudicial to Appellant’s substantial rights occurred. 13 The Entry of Judgment does not accurately reflect the disposition of the charges, in accordance with R.C.M. 1111(c)(2), as it fails to reflect the grava- men of the listed offenses. Specifically, we note the Block 12 entries are defi- cient in the following ways: (1) Specification 2 of Charge I does not state how long the period of unauthorized absence lasted; (2) for the sole specification of Charge III, a violation of Article 92, UCMJ, the block 12 entry fails to specify the general order that Appellant was charged with violating. Therefore, we modify the Entry of Judgment and direct that it be included in the record. 14 Although we find no prejudice from this error, Appellant is entitled to courts- martial records that correctly reflect the content of his proceedings. 15 The findings and sentence are AFFIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
13 Articles 59 & 66, UCMJ, 10 U.S.C. §§ 859, 866.
14 Id.
15 Crumpley, 49 M.J. at 539; United States v. Sutton, 81 M.J. 677 (N-M. Ct. Crim.
App. 2021).
4 UNITED STATES NMCCA NO. 202300176
v. ENTRY OF Emmanuel ROMAN, Jr. JUDGMENT Gas Turbine Systems Technician (Electrical) Fireman Apprentice (E-2) As Modified on Appeal U.S. Navy Accused 29 April 2024
On 20 April 2023, the Accused was tried at Naval Station Great Lakes, Illinois, by special court-martial consisting of a military judge sitting alone. Military Judge John J. Stephens presided.
FINDINGS
The following are the Accused’s pleas and the Court’s finding to all offenses the convening authority referred to trial:
Charge I: Violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Plea: Guilty. Finding: Guilty.
Specification 1: On or about 8 November 2022, at or near Naval Station Great Lakes, failed to go to his appointed place of duty, to wit: 0730 muster. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: On or about 16 November 2022 absented himself from his unit, to wit: Surface Warfare Engineering School Command, located at Naval Station Great Lakes, without authority and remained absent until on or about 18 November 2022.
1 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
Plea: Guilty. Finding: Guilty.
Charge II: Violation of Article 91, Uniform Code of Military Justice, 10 U.S.C.
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This opinion is subject to administrative correction before final disposition.
Before KISOR, BAKER, and MIZER Appellate Military Judges
_________________________
UNITED STATES Appellee
v.
Emmanuel ROMAN, Jr. Gas Turbine Systems Technician (Electrical) Fireman Appren- tice (E-2), U.S. Navy Appellant
No. 202300176
Decided: 29 April 2024
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: John J. Stephens
Sentence adjudged 20 April 2023 by a special court-martial convened at Naval Station Great Lakes, Illinois, consisting of a military judge sit- ting alone. Sentence in the Entry of Judgment: confinement for 70 days and a bad-conduct discharge. 1
For Appellant: Lieutenant Raymond E. Bilter, JAGC, USN
1 Appellant was credited with having served 99 days of pretrial confinement. United States v. Roman, NMCCA No. 202300176 Opinion of the Court
For Appellee: Lieutenant Lan T. Nguyen, JAGC, USN Lieutenant Commander James P. Wu Zhu, JAGC, USN
Judge BAKER delivered the opinion of the Court, in which Senior Judge KISOR and Judge MIZER joined.
This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.
BAKER, Judge: Appellant was convicted, consistent with his pleas, of one specification of absence without leave, in violation of Article 86, Uniform Code of Military Jus- tice [UCMJ], 2 and one specification of wrongful use of a controlled substance, in violation of Article 112a, UCMJ. 3 In his sole assignment of error, Appellate asserts that the Entry of Judg- ment fails to comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(a) be- cause it does not correctly summarize each specification, with the exception of Charge IV. We find no prejudicial error. However, to ensure that Appellant’s record of trial is correct and accurately reflects the proceedings, we take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record.
I. BACKGROUND
On 27 October 2023, Appellant accepted nonjudicial punishment for violat- ing Article 112a, UCMJ, by wrongfully using various controlled substances. For this misconduct, his Commanding Officer imposed 45 days restriction and 45 days of extra duties. 4 Roughly two weeks into restriction, Appellant left Na- val Station Great Lakes, without prior authorization, staying at a hotel for two
2 10 U.S.C. § 886.
3 10 U.S.C. § 912a.
4 Pros. Ex. 1 at 1-2.
2 United States v. Roman, NMCCA No. 202300176 Opinion of the Court
days before returning to his unit. 5 On 20 April 2023, the military judge con- victed Appellant of unauthorized absence and wrongful use of a controlled sub- stance consistent with his pleas and in accordance with his plea agreement. The plea agreement required the military judge to adjudge a bad-conduct dis- charge. 6 The Entry of Judgment contained a purported summary of each charge and specification. 7 Appellant made no post-trial motion to correct the judgment entered by the military judge. 8
II. DISCUSSION
Whether a record of trial is accurate and complete is a question we review de novo. 9 An appellant is entitled to have the official record accurately reflect what happened in the proceedings. 10 Appellant submits that the military judge erred in certifying the Entry of Judgment, which failed to summarize the charges and specifications, with the exception of Charge IV (violation of Article 112a, UCMJ). The Government submits that the military judge properly sum- marized the charges and specifications. An entry of judgment must “include, at a minimum, the gravamen of the offense.” 11 We find that, contrary to the Government’s contention, the Entry of Judgment, other than Charge IV, failed to provide a legally sufficient summary of the charges and specifications. 12 R.C.M. 1111(b) requires that an entry of judgment include, for each charge referred to court-martial, a summary of each charge and specification, the plea of the accused, and the disposition of each charge, as well as the sentence adjudged.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings are correct in law, the sentence is correct in
5 Id. at 2. 6 App. Ex. I at 14.
7 Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A).
8 R.C.M. 1104(b)(2)(C).
9 United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998).
10 Id. at 539.
11 United States v. Booker, 83 M.J. 595, 598 (N-M. Ct. Crim. App. 2023).
12 R.C.M. 1111(b)(1)(A).
3 United States v. Roman, NMCCA No. 202300176 Opinion of the Court
law and fact, and that no error materially prejudicial to Appellant’s substantial rights occurred. 13 The Entry of Judgment does not accurately reflect the disposition of the charges, in accordance with R.C.M. 1111(c)(2), as it fails to reflect the grava- men of the listed offenses. Specifically, we note the Block 12 entries are defi- cient in the following ways: (1) Specification 2 of Charge I does not state how long the period of unauthorized absence lasted; (2) for the sole specification of Charge III, a violation of Article 92, UCMJ, the block 12 entry fails to specify the general order that Appellant was charged with violating. Therefore, we modify the Entry of Judgment and direct that it be included in the record. 14 Although we find no prejudice from this error, Appellant is entitled to courts- martial records that correctly reflect the content of his proceedings. 15 The findings and sentence are AFFIRMED.
FOR THE COURT:
MARK K. JAMISON Clerk of Court
13 Articles 59 & 66, UCMJ, 10 U.S.C. §§ 859, 866.
14 Id.
15 Crumpley, 49 M.J. at 539; United States v. Sutton, 81 M.J. 677 (N-M. Ct. Crim.
App. 2021).
4 UNITED STATES NMCCA NO. 202300176
v. ENTRY OF Emmanuel ROMAN, Jr. JUDGMENT Gas Turbine Systems Technician (Electrical) Fireman Apprentice (E-2) As Modified on Appeal U.S. Navy Accused 29 April 2024
On 20 April 2023, the Accused was tried at Naval Station Great Lakes, Illinois, by special court-martial consisting of a military judge sitting alone. Military Judge John J. Stephens presided.
FINDINGS
The following are the Accused’s pleas and the Court’s finding to all offenses the convening authority referred to trial:
Charge I: Violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Plea: Guilty. Finding: Guilty.
Specification 1: On or about 8 November 2022, at or near Naval Station Great Lakes, failed to go to his appointed place of duty, to wit: 0730 muster. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: On or about 16 November 2022 absented himself from his unit, to wit: Surface Warfare Engineering School Command, located at Naval Station Great Lakes, without authority and remained absent until on or about 18 November 2022.
1 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
Plea: Guilty. Finding: Guilty.
Charge II: Violation of Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 1: On or about 23 December 2022, at or near Naval Station Great Lakes, was disrespectful in language to a petty officer, whom he knew was in the execution of her office, by saying to her, “how the fuck do you know if I am a Yeoman,” and “fucking stupid,” or words to that effect. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 2: On or about 23 December 2022, at or near Naval Station Great Lakes, was disrespectful in language to a petty officer, whom he knew was in the execution of his office, by saying to him, “I’m not a boy, I’m a man and you’re not going to talk to me like that,” or words to that effect. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 3: On or about 16 February 2023, at or near Naval Station Great Lakes, was disrespectful in language to a petty officer, whom he knew was in the execution of his office, by saying to him, “stupid motherfuckers,” “dick- heads,” and “retards,” or words to that effect. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 4: On or about 16 February 2023, at or near Naval Station Great Lakes, was disrespectful in language to a petty officer, whom he knew was in the execution of her
2 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
office, by saying to her, “stupid motherfuckers,” “dick- heads,” and “retards,” or words to that effect. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 5: On or about 16 February 2023, at or near Naval Station Great Lakes, was disrespectful in language to a petty officer, whom he knew was in the execution of his office, by saying to him, “stupid motherfuckers,” “dick- heads,” and “retards,” or words to that effect. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge III: Violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification: On or about 15 February 2023, at or near Naval Station Great Lakes, did violate a lawful general order which was his duty to obey, to wit: chapter 4, paragraph 1(d)(4), OPNAVINST 5350.4E, by wrongfully using delta-8 tetrahydrocannabinol. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge IV: Violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. Plea: Guilty. Finding: Guilty.
Specification 1: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used 3,4- Methylenedioxyamphetamine, a Schedule I controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
3 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
Specification 2: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used 3,4- Methylenedioxyamphetamine, a Schedule I controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 3: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used Cocaine, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 4: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used Methamphetamine, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 5: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used Fentanyl, a Schedule II controlled substance. Plea: Guilty. Finding: Guilty.
Specification 6: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used Norfentanyl, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
4 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
Specification 7: On or about 27 August 2022, at or near Naval Station Great Lakes, wrongfully used Alprazolam, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 8: On or about 3 November 2022, at or near Naval Station Great Lakes, wrongfully used Cocaine, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification 9: On or about 15 February 2023, at or near Naval Station Great Lakes, wrongfully used Cocaine, a Schedule II controlled substance. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Charge V: Violation of Article 131b, Uniform Code of Military Justice, 10 U.S.C. § 931b. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification: On or about 8 January 2023, at or near Naval Station Great Lakes, wrongfully did a certain act, to wit: tell DC2 Sean Chaput, that he could not get a hold of MMFR Liza A. Capozzi, with intent to obstruct the due administration of justice in the case of MMFR Capozzi, against whom he had a reason to believe there was, or would be disciplinary proceedings. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
5 United States v. Roman, NMCCA No. 202300176 Modified Entry of Judgment
Charge VI: Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
Specification: On or about 16 February 2023, in the east lounge of the USS Preble, committed indecent conduct, to wit: engaged in sexual intercourse, and that said conduct was to the prejudice of good order and discipline of the armed forces. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.
SENTENCE
On 27 October 2022, the military judge sentenced the Accused to the following: Confinement for a total of 70 days, as follows: For Specification 2 of Charge I: confinement for one month. For Specification 5 of Charge IV: confinement for 70 days. The terms of confinement will run concurrently. The Accused has served 99 days of pretrial confinement and shall be cred- ited with 99 days of confinement already served, to be deducted from the adjudged sentence to confinement. A bad-conduct discharge.