U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 38946
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UNITED STATES
Appellee
v.
Jorge O. Pagan
Captain (O-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 24 March 2017
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Military Judge: Shelly W. Schools.
Approved sentence: Dismissal, confinement for 30 days, and a repri-
mand. Sentence adjudged 27 October 2015 by GCM convened at Joint
Base San Antonio-Randolph, Texas.
For Appellant: Major Mark C. Bruegger, USAF; Major Jeffrey A. Davis,
USAF; Captain Jarett Merk, USAF.
For Appellee: Captain Sean J. Sullivan, USAF; Gerald R. Bruce, Es-
quire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
DUBRISKE and Judge HARDING joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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C. BROWN, Judge:
At a general court-martial composed of officer members, Appellant was con-
victed, consistent with his pleas, of two charges of violating a lawful general
regulation in violation of Article 92, Uniform Code of Military Justice (UCMJ),
United States v. Pagan, No. ACM 38946
10 U.S.C. § 892. 1 The panel sentenced Appellant to a dismissal, confinement
for 30 days, and a reprimand. The convening authority approved the sentence
as adjudged.
On appeal, Appellant asserts that his sentence, specifically the dismissal,
is inappropriately severe based upon the facts and circumstances of his case.
Finding no relief is warranted, we affirm the findings and sentence.
I. BACKGROUND
At the time of the offenses, Appellant was a 28-year-old Reserve Officer
Training Corps (ROTC) Instructor and Assistant Operations Flight Com-
mander assigned to the ROTC Detachment at Texas State University in San
Marcos, Texas. In this role, he was responsible for teaching and mentoring un-
dergraduate student cadets who were members of the Texas State University
ROTC Program. During the fall semester, 2013, Appellant developed a per-
sonal relationship with JR, a 19-year old ROTC cadet assigned to Appellant’s
detachment, in violation of Air Education and Training Command Instruction,
36-2909, Professional and Unprofessional Relationships. Appellant texted and
called JR, inviting her to drink at an off-campus bar and also at his private
residence. When JR refused, Appellant told her “Don’t say anything, that’s how
word gets around.”
Similarly, in the fall semester of 2014, Appellant developed an intimate
and sexual relationship with TC, another 19-year old cadet assigned to his de-
tachment. Appellant asked TC to come to his office at the ROTC Detachment
on campus after hours. After she arrived, Appellant kissed TC, who asked him
if he was married. After Appellant confirmed he was married, TC told Appel-
lant “we shouldn’t be doing this.” Appellant then sat TC on his lap in a chair
in his office, kissed her neck, pulled down her sweatpants, and caressed her
bare buttocks. TC pulled her pants up and again told Appellant, “We shouldn’t
be doing this.” Appellant responded, “I know.” Appellant lifted TC’s shirt and
sucked on her bare breast, and later touched her vagina. Finally, Appellant
exposed his penis and said, “Let’s see what a 19 year-old can do, let’s see if a
19 year-old can make me cum.” TC performed oral sex on Appellant for approx-
imately eight seconds and then Appellant masturbated until he ejaculated on
TC’s bare breasts. Prior to TC leaving his office, Appellant stated, “Don’t tell
anyone, I could get into really big trouble, and make sure no one sees you.”
1 Pursuant to a pretrial agreement, Appellant pleaded not guilty to Charge II and its
three Specifications alleging violations of Article 120, UCMJ, 10 U.S.C. § 920. After
announcement of sentence, the military judge dismissed Charge II and its Specifica-
tions with prejudice.
2
United States v. Pagan, No. ACM 38946
II. DISCUSSION
Appellant asserts that his crime of violating a lawful general regulation by
developing a personal and a sexual relationship with two ROTC cadets does
not warrant a dismissal. We are not persuaded.
We review sentence appropriateness de novo. United States v. Lane,
64
M.J. 1, 2 (2006). We “may affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as [we find] correct in law and fact and
determine, on the basis of the entire record, should be approved.” Article 66(c),
UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by considering
the particular appellant, the nature and seriousness of the offenses, the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson,
67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). Although we
are accorded great discretion in determining whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
The maximum authorized sentence for Appellant’s offenses was a dismis-
sal, confinement for four years, and forfeiture of all pay and allowances. Appel-
lant negotiated a pretrial agreement which limited the convening authority’s
approval of confinement to six months, but imposed no other sentence limita-
tions. Thus, the approved sentence of a dismissal, confinement for 30 days, and
a reprimand was clearly within the discretion of the convening authority.
We have given individualized consideration to this Appellant, his conduct,
his military career and accomplishments, and the other relevant matters
within the record of trial. Appellant cites numerous military awards, his excel-
lent performance record, his advanced degree, and his cooperation with the Air
Force Office of Special Investigations to support his argument that a dismissal
is not appropriate in his case. While Appellant has an otherwise fairly good
military record, the mitigating factors he cites must be balanced against the
seriousness of the offenses Appellant committed. Appellant, an ROTC cadre
member whose duty was to teach and mentor future Air Force officers, instead
developed both personal and sexual relationships with cadets under his charge.
We find the approved sentence is not inappropriately severe.
3
United States v. Pagan, No. ACM 38946
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED. 2
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
2 We note both the Report of Result of Trial and Court-Martial Order (CMO) fail to
reflect Appellant’s plea of not guilty to Charge II and its Specifications or their subse-
quent dismissal with prejudice at trial. Appellant was not prejudiced by this oversight;
however, we direct promulgation of a new CMO to accurately reflect the pleas and
findings in this case.
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