United States v. Usry

9 M.J. 701
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 23, 1980
DocketNCM 79 1894
StatusPublished
Cited by17 cases

This text of 9 M.J. 701 (United States v. Usry) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Usry, 9 M.J. 701 (usnmcmilrev 1980).

Opinions

EDWARDS, Judge:

This case originally came before us without specific assignment of error. We have asked appellate counsel for, and received, briefs on the issue of appropriateness of the sentence. In carrying out our statutory duties, we must be convinced that the findings and sentence are correct in law and fact. We have no quarrel with our brother in his concurring/dissenting opinion that such duty requires us not to approve any sentence which, in view of the entire record, we conclude is not fair and just. Article 66c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c). In the instant case, we find the sentence to be fair and just.

At his general court-martial convened on 2 August 1979, the appellant on his pleas was found guilty of an unauthorized absence of approximately 56 days and larceny of another Marine’s automobile, in violation of Articles 86 and 121, UCMJ, 10 U.S.C. §§ 886 and 921. He was sentenced to confinement (at hard labor for 2 years, to forfeit all pay and allowances, to be reduced to pay grade E-l, and to be discharged from the U. S. Marine Corps with a dishonorable discharge. The sentence as adjudged was approved on review below.

Prior to sentencing, evidence was introduced to show that Private First Class Usry was 19 years of age, had been in the Marine Corps for just short of 2 years, had previously received nonjudicial punishment for possessing a trace amount of marijuana, and had his unauthorized absence terminated by apprehension in Lexington, Georgia. The owner of the stolen automobile testified in substance that he knew the accused; that he was from the same battery as the accused; that in early March of 1979 he had departed Camp Lejeune, North Carolina, for an operation at Fort Bragg, North Carolina, returning on 30 March 1979; that he had left his 1976 Nova automobile in the parking lot behind his barracks; that he had bought the automobile in November 1978 for $2600.00; that when he left for Fort Bragg the automobile was in good condition with no body damage; that he was married and required a car to get to work; that he did not get the car back until 15 June 1979 and it was necessary for him to fly down to Lexington, Georgia, to get it from the sheriff; and that the car was substantially in the same condition as when it was taken.

The appellant introduced into evidence documents showing that he had been a Private First Class since March of 1978; that he had fired low marksman in 1977 and 1978 with the M-16 rifle and had familiarization fired the .45 caliber pistol; that his [703]*703aptitude tests scores indicated a GCT of approximately 109; and that he had completed high school and a basic cannoneers school, and was qualified for an MOS as a field artillery batteryman (MOS 0811). The appellant then made an unsworn statement in which he asserted that he was 19 years old; that he was the only boy of five siblings in his family; that his father was dead and his mother was unable to work, having a slipped disc in her back; that while an unauthorized absentee he went home and worked to help support his mother and four sisters; that he, in fact, had not graduated from high school but had passed the GED test; that he was a field artillery battery-man; that his father had been in the Army; that he came into the Marine Corps on the urging of his mother; that he respected the Marine Corps because even though he had made a mistake they treated him in a respectful manner and that he had been treated fairly throughout his Marine Corps career; that he had been in pretrial confinement over 2 months; that he knew he broke the law and was sorry for that; that he came from a family of all women and a deceased father, and that his mother spent more time with the girls and never taught him right from wrong; that his grandmother, who had heart trouble, lived next door; that his family had lived on Social Security and his father’s VA benefits since his father’s death in 1967; that what monies he sends home plus the Social Security and YA benefits are not enough for his family to live on; that he left the Marine Corps to support his family but that he did not think he would have left had he been involved in combat doing the Marine Corps mission; and that he broke the law and was sorry for what he had done to the Marine Corps and the man from whom he had stolen the car.

It is with the above information, the fact that the appellant had pled guilty, and the information contained in the charge that the appellant, who was from the same battery as the victim, had stolen the car on or about 30 March 1979 and had entered an unauthorized absence status on that same date and had remained absent until 25 May 1979, that the military judge was confronted with the weighty task of imposing an appropriate sentence.

We are confident that the military judge was well aware of the significance of awarding a dishonorable discharge as opposed to a bad-conduct discharge, or of not awarding a punitive discharge at all, and of the words of the Manual for Courts-Martial, 1969 (Rev.), paragraphs 127c (4) and 76a (3) and (4), concerning when a bad-conduct discharge is more appropriate than a dishonorable discharge. We note that “dishonorable discharge(s)” should be reserved for those who should be separated for dishonor, after having been convicted of offenses usually recognized by the civil law as felonies, or of offenses of a military nature requiring severe punishment. Id. at paragraph 76a (3).

The appellant stole the automobile of his batterymate, who was deployed on an operation, on or about the very day that the batterymate was returning from that deployment in full expectation that his car would be there in order for him to return home to his wife and then be used to get him back and forth to his duties while in garrison. The appellant stole the car in order to return to his home in an unauthorized absence status. Larceny is commonly recognized at common law as a serious felony crime. In the United States military services, the theft of any motor vehicle carries a maximum sentence of a dishonorable discharge and confinement at hard labor for 5 years. Table of Maximum Punishments, Chapter XXV, Manual for Courts-Martial, 1969 (Rev.). Larceny crimes strike at the very heart of society’s ability to exist as a community, and this is certainly no less important in a military community. It is commonly recognized that the crime of larceny against a fellow service member takes on even more significance in the military community where the very lives of men at arms often rest upon the complete trust and confidence of their fellow combatants. This trust is emphasized and nurtured in the United States Marine Corps from a Marine’s first experiences in bootcamp and throughout his Marine Corps career. Basic to this philosophy is an expectation that your batterymate will not steal from you.

[704]*704Considering all the circumstances in this case, it can be seen that appellant’s conduct deserves to be characterized as “dishonorable”. While evidence of family hardship was introduced, we cannot say in this case that such hardship, even when considered along with the other matters introduced as extenuation, is of such a nature to warrant the mitigation of the characterization of the discharge from “dishonorable” to “bad-conduct”.

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Bluebook (online)
9 M.J. 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-usry-usnmcmilrev-1980.