United States v. Schlegel

7 M.J. 773

• Court: U.S. Army Court of Military Review
• Decided: May 30, 1979
• Docket: CM 436854
• Status: Published

Opinions

OPINION OF THE COURT

FELDER, Judge:

The appellant was convicted of rape and sodomy and sentenced to a dishonorable discharge, confinement at hard labor for ten years and reduction to Private El. The findings of guilty were established beyond a reasonable doubt but I am concerned about the appropriateness of the sentence. In addition to the facts of the case, the character of both the appellant and victim are worthwhile considerations in assessing the punishment. See United States v. Shields, 40 C.M.R. 546 (A.B.R.1969); Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 199b.

The victim, a run-a-way from a female reformatory, was fourteen years old with a notorious reputation for sexual promiscuity and harlotry. Her claimed age of eighteen and advanced physical development camouflaged her actual tender years. She was proud of her reputation and boasted of having sodomitic relations on previous occasions. The incident involving the appellant was not reported to officials for several days and she suffered very minor physical injury. In fact, the day after the incident she voluntarily engaged in carnal copulation with another soldier. Conversely, the appellant had an unblemished record. Parenthetically, I am not unmindful that a co-actor was acquitted of the same charges. In my opinion, the sentence is disproportionate and clemency is warranted. Article 66(c), UCMJ, 10 U.S.C. § 866(c).

The findings of guilty are affirmed. On the basis of consideration of the entire record, only so much of the sentence as provides for a dishonorable discharge, confinement at hard labor for five years, and reduction to Private E-1 is affirmed.