United States v. VARGAS

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: January 15, 2025
• Docket: 202300302
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before KISOR, FLUHR, and HARRELL Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Hiram A. VARGAS Aviation Boatswain’s Mate (Handling) Petty Officer Third Class (E-4), U.S. Navy Appellant

No. 202300302

Decided: 15 January 2025

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Mishonda M. Mosley

Sentence adjudged 18 October 2023 by a general court-martial tried at Naval Station Norfolk, Virginia, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for ten months, for- feiture of all pay and allowances, and a bad-conduct discharge.

For Appellant: Lieutenant Raymond E. Bilter, JAGC, USN United States v. Vargas, NMCCA No. 202300302 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. 1 However, we note that the Entry of Judgment does not: (1) include the date of the offenses as required by Rule for Courts-Martial (R.C.M.) 1111(b)(1)(A) and United States v. Wadaa; 2 (2) correctly reflect the disposition of the charge and specifications to which Appellant pleaded not guilty; 3 (3) specify the confinement adjudged for each specification as required by R.C.M. 1111(b)(2)(A); and, (4) specify that the terms of confinement are to run concurrently as required by R.C.M. 1111(b)(2)(B). Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. 4 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the rec- ord. The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

1 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.

2 84 M.J. 652, 655 (N-M. Ct. Crim. App. 2024).

3 See Block 11 of the Entry of Judgment (incorrectly reflecting that Charge I and its Spec-

ifications are dismissed without prejudice upon completion of appellate review). 4 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

2 UNITED STATES NMCCA NO. 202300302 v. ENTRY OF Hiram A. VARGAS JUDGMENT Aviation Boatswain’s Mate (Handling) Petty Officer As Modified on Appeal Third Class (E-4) U.S. Navy 15 January 2025 Accused

On 18 October 2023, the Accused was tried at Naval Station Norfolk, Vir- ginia, by a general court-martial, consisting of a military judge sitting alone. Military Judge Mishonda M. Mosley presided.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all of- fenses the convening authority referred to trial:

Charge I: Violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.

Specification 1: Sexual assault (without consent) on or about 27 August 2022. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review. United States v. Vargas, NMCCA No. 202300302 Modified Entry of Judgment

Specification 2: Sexual assault (asleep or otherwise unaware) on or about 27 August 2022. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.

Specification 3: Sexual assault (incapable of consenting) on or about 27 August 2022. Plea: Not Guilty. Finding: Withdrawn and dismissed without prejudice to ripen into prejudice upon completion of appellate review.

Charge II: Violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c. Plea: Guilty. Finding: Guilty.

Specification: Indecent recording on or about 27 August 2022. Plea: Guilty. Finding: Guilty.

Additional Charge: Violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. Plea: Guilty. Finding: Guilty.

Specification: Abusive sexual contact on or about 27 August 2022. Plea: Guilty. Finding: Guilty.

2 United States v. Vargas, NMCCA No. 202300302 Modified Entry of Judgment

SENTENCE

On 18 October 2023, a military judge sentenced the Accused to the follow- ing: Reduction to pay grade E-1. Forfeiture of all pay and allowances. Confinement For the Specification of Charge II: confinement for 10 months. For the Specification of the Additional Charge: confinement for 10 months. The terms of confinement will run concurrently. Confinement for a total of 10 months. A bad-conduct discharge.