United States v. Sergeant Major ANDREW F. UNDERWOOD ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant Major ANDREW F. UNDERWOOD
United States Army, Appellant
ARMY 20110319
U.S. Army Military District of Washington
Steven H. Levin, Military Judge
Colonel Corey L. Bradley, Staff Judge Advocate
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Kenneth W. Borgnino, JA (on brief).
13 November 2012
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SUMMARY DISPOSITION
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ALDYKIEWICZ, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of six specifications of false official statement, six
specifications of wearing unauthorized ribbons and insignia, and one specification of
false swearing, in violation of Articles 107 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 907, 934 (2006). The military judge sentenced appellant to
confinement for twelve months and a bad-conduct discharge. Pursuant to a pretrial
agreement, the convening authority approved only thirty days’ confinement and a
bad-conduct discharge. At the time of trial, appellant was a Command Sergeant
Major with over twenty-five years of service assigned to the Criminal Investigation
Command (CID).
Having considered appellant’s allegations of error alleging, inter alia, that his
sentence was inappropriately severe, as well as those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A 1982), we find
UNDERWOOD—ARMY 20110319
the allegations of error and the matters personally raised by appellant, to include the
alleged inappropriateness of appellant’s sentence, lack merit and warrant no relief.
We leave for another day any discussion regarding the government’s contention that
our superior court’s decision in United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010)
placed certain limits on this court’s authority to determine sentence appropriateness.
On consideration of the entire record, to include the issues personally raised
by appellant, we are satisfied the findings are correct in law and fact and that the
sentence is appropriate. We therefore, affirm the findings of guilty and the
sentence.
Senior Judge KERN concurs.
MARTIN, Judge, dissenting:
While I agree that the findings are correct in law and fact, I disagree with my
colleagues as to the sentence and would find that appellant’s approved sentence to a
punitive discharge is inappropriately severe.
It is clear this court has both the authority and the responsibility to determine
whether an approved sentence is appropriate. In United States v. Bauerbach, 55
M.J. 501, 502–06 (Army Ct. Crim. App. 2001), this court provided a historical
review of the events that led to the development of the Uniform Code of Military
Justice (UCMJ) as a backdrop to the Courts of Criminal Appeals’ unusually broad
statutory authority for review under Article 66, UCMJ. Several troubling courts-
martial cases arising during World War I, combined with a large number of courts-
martial convictions in World War II, prompted Congress to provide more procedural
due process for servicemembers in the UCMJ. Id. at 502–03 (citing United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001); United States v. Lacy, 50 M.J. 286, 287–
88 (C.A.A.F. 1999)). Indeed, Article 66, UCMJ, was drafted, in part to ensure that
commanders did not exercise “too much control over court-martial procedures and
results.” Bauerbach, 55 M.J. at 503 (emphasis added).
Article 66, UCMJ, provides that this court “may affirm only such findings of
guilty and the sentence or such part or amount of the sentence, as it finds correct in
law and fact and determines, on the basis of the entire record, should be approved.”
UCMJ art. 66(c) (emphasis added). The distinctive authorization for sentence
review is further highlighted when compared to the statutory authority of our
superior court under Article 67(c), UCMJ. The Court of Appeals for the Armed
Forces may “act only with respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in law by the Court of
Criminal Appeals . . . . The Court of Appeals for the Armed Forces shall take action
only with respect to matters of law.” UCMJ art. 67(c) (emphasis added).
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The government in its brief before this court, relies on United States v. Nerad,
69 M.J. 138 (C.A.A.F. 2010), among other cited authority as a limitation on this
court’s authority to evaluate the appropriateness of a sentence. It is important to
note that the holding in Nerad pertained to the service court’s ability to disapprove a
legally and factually sufficient finding based on equity; it is not a sentence
appropriateness case. In Lacy, the Court of Appeals for the Armed Forces
highlighted our court’s highly discretionary and unusual authority under Article 66,
UCMJ, by providing, “The power to review a case for sentence appropriateness,
including relative uniformity, is vested in the Courts of Criminal Appeals, not in our
Court, which is limited to errors of law.” Lacy, 50 M.J. at 288. It is clear, then that
“our . . . authority to review for factual sufficiency and sentence appropriateness
exists separately and independently from our legal sufficiency authority.”
Bauerbach, 55 M.J. at 504.
Congress has given the Courts of Criminal Appeals the authority to ensure “a
fair and just punishment for every accused,” by requiring that a judicial body review
all qualifying, approved sentences as a procedural safeguard against inappropriately
severe sentences. Id. (quoting United States v. Lanford, 6 U.S.C.M.A. 371, 378,
20 C.M.R. 87, 94 (1955)). This mandate exists even when no legal error was
committed. Id. at 506. Accordingly, the UCMJ requires that the members of this
court independently determine, in every case within our limited Article 66, UCMJ,
jurisdiction, the sentence appropriateness of each case we affirm. Finally, it is
important to point out that determining an appropriate sentence is distinct from
granting clemency. “Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the punishment he deserves.
Clemency involves bestowing mercy—treating an accused with less rigor than he
deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
In order to determine sentence appropriateness, we must review each case
with “individualized consideration of the particular accused on the basis of the
nature and seriousness of the offense and the character of the offender.” United
States v. Roukis, 60 M.J. 925, 930–31 (Army Ct. Crim. App. 2005) (quoting United
States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982) (internal quotation marks
omitted)). “A soldier should not receive a more severe sentence than otherwise
generally warranted by the offense, the circumstances surrounding the offense, his
acceptance or lack of acceptance of responsibility for his offense, and his prior
record.” Roukis, 60 M.J. at 931 (quoting United States v. Aurich, 31 M.J. 95, 97 n.*
(C.M.A. 1990) (internal quotation marks omitted)). Moreover, “the punishment
should ‘fit the offender and not merely the crime.’” Roukis, 60 M.J. at 931 (quoting
United States v. Wright, 20 M.J. 518, 519 (A.C.M.R. 1985)).
Appellant served over twenty years of service before he committed his first
charged offense. A review of the charged misconduct versus his actual career
highlights the injustice of a punitive discharge. Although the charges were
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UNDERWOOD—ARMY 20110319
numerous, the gravamen of the offenses is limited to failure to correct records that
inflated or exaggerated his deployment time, wearing the associated ribbons, medals,
and accoutrements for the deployments in which he did not participate, and allowing
his records to reflect embellishments to his prior positions and civilian education.
He was not charged with altering the records or submitting false documents in
support of the erroneous entries. Appellant pled guilty to all offenses as charged
and he expressed remorse and accepted responsibility for his actions. While the
offenses were especially troubling in light of his position as both a Command
Sergeant Major and a CID agent, the offenses were not so severe as to warrant a bad-
conduct discharge and termination of his ability to receive any meaningful benefits.
Therefore, based on the circumstances surrounding the offenses, his guilty plea to all
charges and specifications, and his almost twenty years of otherwise honorable
service, I find that the bad-conduct discharge is inappropriately severe. I further
submit that this case is exactly what Congress had in mind when they provided
service courts with the highly discretionary authority to review a sentence and
determine its appropriateness under Article 66, UCMJ.
This court has the power and the responsibility to affirm only so much of the
sentence as should be approved, based on the entire record. That portion of the
punishment that results in the loss of all benefits attendant to appellant’s service is
inappropriately severe given appellant’s entire record. Accordingly, I would
disapprove the bad-conduct discharge, not as a matter of clemency, but to assure that
justice is done.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
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