United States v. Dominguez-Garcia ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32694
________________________
UNITED STATES
Appellee
v.
Jennesis V. DOMINGUEZ-GARCIA
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 11 October 2022
________________________
Military Judge: Mark W. Milam
Sentence: Sentence adjudged 14 April 2021 by SpCM convened at Robins
Air Force Base, Georgia. Sentence entered by military judge on 30 April
2021: bad-conduct discharge, confinement for 7 days, reduction to E-1,
and a reprimand.
For Appellant: Major David L. Bosner, USAF; Angel Gardner (Legal Ex-
tern). 1
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Brittany M. Speirs, USAF; Mary
Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Senior Judge POSCH delivered the opinion of the court, in which Judge
RICHARDSON and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
1 Ms. Gardner was supervised by an attorney admitted to practice before the court.
United States v. Dominguez-Garcia, No. ACM S32694
________________________
POSCH, Senior Judge:
It is not every day that an appellant asks this court to tell her what offense
she pleaded guilty to at her court-martial. For the first time on appeal, Appel-
lant contends that the military judge erred by conducting a providence inquiry
for aggravated assault with a dangerous weapon instead of simple assault as
charged. The Government concedes this was error. We agree and conclude that
Appellant’s pleas established the elements of simple assault and are provident.
Because the military judge sentenced Appellant under a misapprehension that
she was charged with a more serious offense, and that her guilty plea to the
aggravating elements of that offense was provident when it was not, the sen-
tence is set aside and the record returned to The Judge Advocate General for
further proceedings consistent with this opinion.
I. BACKGROUND
The facts are undisputed. Two months after Appellant confronted another
Airman by pointing a handgun at him at point-blank range, Appellant’s squad-
ron commander preferred three charges. One charge alleged that Appellant
brought a firearm onto Robins Air Force Base (AFB), Georgia. A second alleged
that Appellant communicated a threat to use that firearm to injure the victim.
In a third charge arising from the same incident as the alleged threat, Appel-
lant was accused of pointing an unloaded firearm at the victim. It is this third
charge that we address in our decision.
After these incidents, Appellant was charged with dereliction of duty by
“willfully” failing to refrain from bringing an unauthorized firearm onto Robins
AFB (Charge I) and of communicating a threat to injure the victim with a fire-
arm (Charge II) in violation of Articles 92 and 115, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 892, 915, respectively.2 Appellant was also ac-
cused of assaulting the same victim by pointing an unloaded firearm at him
(Charge III) in violation of Article 128, UCMJ, 10 U.S.C. § 928. On 22 Decem-
ber 2020, the convening authority referred the three charges without modifi-
cation to trial by special court-martial. Among the referred charges, the Spec-
ification of Charge III alleged the following:
In that AIRMAN FIRST CLASS JENNESIS V. DOMINGUEZ-
GARCIA, United States Air Force, 53d Air Traffic Control
Squadron, Robins Air Force Base, Georgia, did, at or near Robins
2 References to the UCMJ are to the Manual for Courts-Martial, United States (2019
ed.).
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United States v. Dominguez-Garcia, No. ACM S32694
Air Force Base, Georgia, on or about 21 October 2020, assault
Airman First Class [LA], to wit: offering to do bodily harm to him
by intentionally pointing an unloaded firearm at him.
A. Court-Martial and Convening Authority’s Decision on Action
When Appellant’s court-martial convened on 12 April 2021, trial counsel
announced the “general nature of the charges.” As regards Charge III and its
Specification, trial counsel stated that Appellant was accused of “assaulting”
the victim “by intentionally pointing a[n] unloaded firearm at him.”
Appellant elected trial by military judge alone and entered mixed pleas to
the three offenses. As to Charge I and its Specification, Appellant pleaded
guilty to bringing an unauthorized firearm onto Robins AFB, excepting the
word “willfully,” and substituting the word “negligently.” The military judge
accepted Appellant’s pleas and, after a trial on this offense, Appellant was
found guilty of negligent dereliction of duty in conformity with her plea. Appel-
lant pleaded not guilty to Charge II and its Specification. Following trial coun-
sel’s unsuccessful attempt to add language to that specification, trial counsel
announced that Charge II and its Specification were withdrawn and dismissed
without prejudice, acknowledging that action was done with the convening au-
thority’s permission.3 Appellant pleaded guilty to Charge III and its Specifica-
tion, which the military judge, without objection and for the first time on the
record, referred to as “the offense of aggravated assault with a dangerous
weapon in violation of Article 128,” UCMJ. (Emphasis added). The military
judge accepted Appellant’s pleas, and entered findings of guilty to Charge III
and its Specification.
On 14 April 2021, the military judge sentenced Appellant to a bad-conduct
discharge, confinement for seven days,4 reduction to the grade of E-1, and a
3 Trial counsel lined through “Charge II: Violation of the UCMJ, Article 115,” writing,
“Withdrawn and dismissed 12 April 2021,” followed by her initials. Trial counsel also
lined through the underlying specification, and did not renumber Charge III as Charge
II, which was correct. Air Force Instruction 51-201, Administration of Military Justice,
¶ 12.3.2.3. (18 Jan. 2019) (stating that after charges or specifications are withdrawn
after arraignment when they have come to the attention of the military judge sitting
alone, the remaining charges or specifications ordinarily are not renumbered).
4 The military judge announced “no confinement” for Charge I and its Specification,
and that Appellant was “[t]o be confined for seven days” “[f]or the Specification of
Charge II,” which had been withdrawn and dismissed two days earlier on 12 April
2021. (Emphasis added). No sentence to confinement was announced for Charge III
and its Specification. Evidently, when announcing sentence, the military judge erro-
neously believed Charge “III” had been renumbered “II” after the communication of a
threat offense was withdrawn and dismissed without prejudice. Supra n.3. This was
error; however, Appellant claims no prejudice and we find none.
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reprimand. During post-trial processing, Appellant waived her right to submit
clemency matters and the convening authority did not disturb the sentence.
The convening authority’s Decision on Action Memorandum dated 29 April
2021, included language for the reprimand that had been adjudged. Among
other things, the reprimand censured Appellant for having been convicted of
aggravated assault with an unloaded firearm.
Appellant did not raise a motion under Rule for Courts-Martial (R.C.M.)
1104(b)(2)(B) to challenge the convening authority’s decision or the reprimand
specifically. See also R.C.M. 1104(b)(1)(F) (allowing post-trial motion to ad-
dress “[a]n allegation of error in the convening authority’s action”). On 30 April
2021, the military judge signed the entry of judgment (EoJ), which correctly
stated the findings. In addition to specifying the wording of the reprimand, the
sentence as entered by the military judge included a bad-conduct discharge,
reduction to the grade of E-1, and seven days “[t]otal [c]onfinement.”5
B. Appeal
Appellant initially filed a brief in support of three assignments of error with
the court. In that pleading, Appellant asked whether (1) the military judge
abused his discretion by accepting her pleas of guilty to Charges I and III and
their Specifications because the military judge failed to establish an adequate
factual or legal basis to support those pleas; and (2) trial defense counsel were
ineffective, in four respects, by (a) failing to file a motion to suppress evidence
derived from a search of her cell phone; (b) “advising [Appellant] to plead guilty
when she was not, allowing her to plead guilty when she was not, and failing
to file the appropriate motions and make appropriate legal arguments to win
the case;” (c) failing to elicit or offer character evidence in presentencing; and
(d) failing to submit post-trial matters for the convening authority’s consider-
ation. In addition to these issues, Appellant claimed that (3) the sentence,
which included a bad-conduct discharge, was inappropriately severe.
After briefing was complete, Appellant moved for leave to file three supple-
mental assignments of error. For the first time, Appellant alleged that the mil-
itary judge and counsel for both parties misapprehended the offense that the
5 Appellant contends that the EoJ repeats an error in the Statement of Trial Results
(STR). Instead of stating “0” days of confinement for the Specification of Charge I,
“N/A” was entered, implying perhaps that no confinement could be adjudged. As ob-
served supra n.4, a sentence of “no confinement” was imposed for this offense. Assum-
ing error, we find relief is not warranted because the EoJ correctly states, “Total Con-
finement: 7 days.” We reach this conclusion because in this case “N/A” where it appears
after the Specification of Charge I in the STR and EoJ can be understood to mean no
term of confinement was adjudged for this offense.
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Government alleged in Charge III and its Specification. Appellant claimed that
mistake “endured through the pendency of the court-martial.”
We granted Appellant’s motion, and the three supplemental assignments
of error are before the court. In that pleading, Appellant asked whether (4) the
court-martial had jurisdiction to accept a guilty plea, enter findings, and ad-
judge a sentence for aggravated assault with a dangerous weapon when the
convening authority referred a charge and specification of simple assault with
an unloaded firearm; (5) the military judge committed reversible error when
he advised Appellant she was charged with aggravated assault with a danger-
ous weapon and provided the associated elements and definitions for a crime
not charged; and (6) trial defense counsel were ineffective, in three additional
respects, for failing do all of the following: (a) object to the military judge ad-
vising Appellant in the guilty-plea session as to a crime not charged, thereby
permitting the military judge to convict Appellant of, and sentence Appellant
for, a more serious crime than referred; (b) object to the trial counsel’s argu-
ment that Appellant had been convicted of aggravated assault with a danger-
ous weapon; and (c) object to the convening authority’s reprimand, which con-
veyed that Appellant had been convicted of aggravated assault with a danger-
ous weapon.
Although not specifically identified as an assignment of error, Appellant
makes a point in her brief in support of her supplemental assignments of error
that we find convincing. In that brief Appellant asserts “that the convening
authority referred a charge and specification of simple assault with an un-
loaded weapon,” but she “was sentenced for the more serious crime of aggra-
vated assault with a dangerous weapon.” Accordingly, in this opinion we ex-
amine Appellant’s claim that she was prejudiced because the military judge
misapprehended the offense alleged in Charge III and its Specification.
II. DISCUSSION
We have reviewed this unusual record carefully and conclude that none of
the assignments of error are reason to invalidate the providence of Appellant’s
pleas of guilty or the findings as entered.6 For this reason, we affirm the
6 Appellant’s assignments of error are either without merit or mooted by our decision
that finds Appellant was charged and convicted of simple assault. In this regard, as-
signments of error (1), (2)(a) and (b), (4), (5), and (6)(a)—to the extent Appellant claims
that deficient representation permitted the military judge to convict Appellant of an
offense that was not charged and more serious than referred—do not require discus-
sion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). At
the same time, assignments of error (2)(c) and (d), (3), (6)(a)—to the extent Appellant
5
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findings. Nonetheless, with respect to Charge III and its Specification, we
agree with Appellant that the military judge erred in sentencing Appellant for
a more serious crime than she was charged with committing. The court finds
error materially prejudicial to a substantial right of Appellant occurred in sen-
tencing. For this reason, we set aside the sentence.
A. Providence of Guilty Pleas to Charge III and its Specification
The charge sheet shows that Appellant was accused in the Specification of
Charge III with simple assault with an unloaded firearm, and not aggravated
assault with a dangerous weapon. As noted above, the Government concedes
this point. We agree for two reasons.
First, Congress intended an aggravated assault with a dangerous weapon
would require both “intent to do bodily harm” and “a dangerous weapon.” Ar-
ticle 128(b), UCMJ, 10 U.S.C § 928(b). Neither is expressly alleged in the spec-
ification to which Appellant entered a plea of guilty.7 Unlike aggravated as-
sault, simple assault with an unloaded firearm does not require proof that an
accused specifically intended bodily harm or used a dangerous weapon. Com-
pare Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶
77.b.(4)(a) (aggravated assault with a dangerous weapon), with MCM, pt. IV,
¶ 77.b.(1) (simple assault).
Second, an unloaded handgun is not a dangerous weapon within the mean-
ing of Article 128, UCMJ, unless it is “used in a matter capable of inflicting
death or grievous bodily harm.” MCM, pt. IV, ¶ 77.c.(5)(a)(iii), Dangerous
weapon. Here, Appellant was accused of “pointing an unloaded firearm.” In
United States v. Davis, our superior court concluded that “[t]he President in-
tended for a weapon to be considered dangerous only if loaded.” 47 M.J. 484,
486 (C.A.A.F. 1998) (observing “[t]he Manual has indicated that an unloaded
firearm is not a dangerous weapon since 1951” and “[t]here is no indication
that the President’s explanation of aggravated assaults contradicts the Code
in any way”); see also MCM, pt. IV, ¶ 77.d.(1)(b) (establishing maximum pun-
ishment for “simple assault” committed with an “unloaded firearm”). For these
reasons, when the military judge called upon Appellant to plead, Appellant
entered a plea of guilty to simple assault as charged.
Appellant pleaded guilty to Charge III and its Specification without enter-
ing into stipulations of fact with trial counsel, and without entering into a plea
claims that deficient representation allowed the military judge to sentence Appellant
for a more serious crime than referred, and (6)(b) and (c) are mooted by our decision.
7 Cf. MCM, pt. IV, ¶ 77.e.(8) (including “intent to inflict bodily harm,” and suggesting
inclusion of “loaded firearm,” in sample specification for aggravated assault with a
dangerous firearm).
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agreement with the convening authority.8 Early in the providence inquiry, the
military judge advised Appellant of the two elements of simple assault with an
unloaded firearm. However, he erred by including a third and fourth element
that were essential only if Appellant was charged with aggravated assault with
a dangerous weapon. The military judge explained to Appellant that “by plead-
ing guilty . . . you are admitting that the following elements are true and accu-
rately describe what you did.” He then recited two elements that were essen-
tial, and a third and fourth element that were not:
One, that at or near Robins Air Force Base, Georgia on or about
21 October 2020, you assaulted [LA] by offering to do bodily
harm to him. Two[,] that you did so by intentionally pointing at
[LA] with a certain weapon, to wit: a unloaded firearm. Three[,]
that you intended to do bodily harm. And four[,] that the weapon
was a dangerous weapon.
The military judge then correctly described the elements of simple assault
in much the same way as they are explained in the Manual for Courts-Martial.
He explained that “[a]n assault[ ] is an unlawful offer made with force or vio-
lence to do bodily harm to another whether or not the offer is consummated.”
See MCM, pt. IV, ¶ 77.c.(2)(a), Definition of assault. “An offer to do bodily harm
is unlawful if it is done without legal justification or excuse and without the
lawful consent of the victim.” See id. “An offer[ ] to do bodily harm is an unlaw-
ful demonstration of violence by an intentional act or omission which creates
in the mind of another a reasonable apprehension of receiving immediate bod-
ily harm.” See MCM, pt. IV, ¶ 77.c.(2)(b)(ii), Offer-type assault. “The use of
threatening words alone does not constitute an assault, however if the threat-
ening words are accompanied by a menacing act or gesture there may be an
assault, since the combination constitutes a demonstration of violence.” See
MCM, pt. IV, ¶ 77.c.(2)(c)(ii), Threatening words. The military judge explained,
“Bodily harm means an offensive touching of another however slight.” See
MCM, pt. IV, ¶ 77.c.(1)(a).
During the providence inquiry, Appellant explained in a narrative how she
confronted the victim in his dorm room about rumors he was spreading about
her. In her telling, “I just snapped, pulled out the gun from my purse, and I
waived [sic] the gun across my chest and my body before setting it down on my
lap. The gun was pointed at [the victim] but my finger was not on the trigger
and the safety was on.” Appellant told the military judge that when she pointed
8 When called upon to plead, trial defense counsel spoke for Appellant and stated, “To
the Charge and its Specifications, III: Guilty.” The military judge acknowledged that
Appellant was “plead[ing] guilty to Charge III and its Specification.” Appellant claims
no prejudice from the irregularity in the pleas as entered for her and we find none.
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the gun she said, “I’ll show you what a crazy b[**]ch is.” Appellant acknowl-
edged that the victim put both hands up, and she further told the military
judge “it was obvious that he was frightened through his reaction and his body
language.” The military judge asked, “So why did you do it?” Appellant replied,
“To scare him in that instance.” Appellant acknowledged she intended to point
the gun and had no legal authorization to do so. Appellant told the military
judge the gun was unloaded.
“A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion.” United States v. Forbes, 78 M.J. 279, 281 (C.A.A.F. 2019) (quot-
ing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). In reviewing the
providence of a plea, a military judge abuses his discretion when there is “a
substantial basis in law or fact for questioning the plea.” United States v. Ina-
binette, 66 M.J. 320, 321–22 (C.A.A.F. 2008) (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)). The military judge’s legal conclusion about
the providence of the plea is reviewed de novo. United States v. Harris, 61 M.J.
391, 398 (C.A.A.F. 2005). An appellant bears the burden of establishing that
the record shows “a substantial basis in law or fact to question the plea.”
United States v. Phillips, 74 M.J. 20, 21–22 (C.A.A.F. 2015).
We turn then to the military judge’s acceptance of Appellant’s pleas. Appel-
lant’s providence inquiry established the two elements of simple assault with
an unloaded firearm. We conclude that the military judge did not abuse his
discretion in accepting Appellant’s plea to the charged offense and had no basis
for rejecting it. We reach this conclusion notwithstanding the military judge’s
error in believing that Appellant was charged with the greater offense of ag-
gravated assault with a dangerous weapon. Although the military judge erred
by conducting a colloquy on elements of aggravated assault with a dangerous
weapon, Appellant has not met her burden to show a substantial basis to ques-
tion her pleas to Charge III and its Specification.9 Phillips, 74 M.J. at 21–22.
B. Sentencing
Appellant correctly points out that it was the military judge who first la-
beled Charge III as an aggravated assault with a dangerous weapon, and no
one corrected him. During sentencing proceedings, the sentencing authority
must consider, among other things, “the nature and circumstances of the of-
fense.” R.C.M. 1002(f)(1). It may seem as though that happened here, except
9 The STR and EoJ correctly record the offense code to be reported to the Defense In-
cident-Based Reporting System (DIBRS) as “128-A” for simple assault. A DIBRS code
is neither a finding nor part of a sentence, United States v. Lepore, 81 M.J. 759, 762–
63 (A.F. Ct. Crim. App. 2021) (en banc), but is instructive on the issue at hand.
8
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the military judge believed, erroneously, that he was sentencing Appellant for
aggravated assault with a dangerous weapon.
The military judge compounded this error when he found both elements of
the greater offense were satisfied by Appellant’s responses during the provi-
dence inquiry. Yet, neither element was shown by that inquiry. Appellant’s
responses established that she intended only to frighten the victim, and that
her unloaded handgun could have been dangerous if the facts were different:
Q [MJ]: Okay so from what you saw with [the victim] it caused
him to have apprehension as well?
A [Appellant]: Yes, Your Honor. Because he didn’t know that the
gun was unloaded.
Q: Right. So why did you do it?
A: To scare him in that instance.
Q: . . . [T]he reason I’m asking is because you have to intend to
do the bodily harm. So if he has a reasonable apprehension that
you’re about to do something to him even if you really know you
can’t do it, in other words you can’t shoot him, but you intended
to scare him, to me that shows that you intended to do bodily
harm to him by scaring the crap out of him. Just to use plain
language. Is that, is that accurate? Or inaccurate?
A: Yes, Your Honor.[10]
Q: Okay, okay. And you would agree that a firearm even if it’s
unloaded is still a dangerous weapon? It certainly can be, right?
Do you agree?
A: Yes, Your Honor.
Q: I mean in other words, you could put a bullet in it.
A: Yes, Your Honor.
Q: It, it can be a dangerous weapon very easily, right? I know you
didn’t have bullets. What I’m . . . trying to see is if you under-
stand that you had a dangerous weapon that you were pointing
at him.
10 We consider Appellant’s single affirmative response given to questions asked in the
alternative to be non-responsive. We give it no weight.
9
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A: Yes, Your Honor.[11]
Q: Okay. It doesn’t mean that it’s being used as a dangerous
weapon at that particular moment. In other words, there wasn’t
a round in the chamber, the only thing you probably could’ve
done with it at 15 feet away is throw it at him. Right?
A: Yes, Your Honor.
(Emphasis added).
We consider Appellant’s responses “as well any inferences that may rea-
sonably be drawn” from what she said. United States v. Carr, 65 M.J. 39, 41
(C.A.A.F. 2007). As the military judge understood it, Appellant “intended to do
bodily harm” to the victim “by scaring the crap out of him.” This is not what
Appellant said and the inference the military judge made in that regard was
unfounded. We agree with Appellant that the providence inquiry shows she
intended psychological harm, but the element of specific intent to do “[b]odily
harm” for aggravated assault requires something else, specifically that Appel-
lant intended “an offensive touching of another, however slight.” MCM, pt. IV,
¶ 77.c.(1)(a). On this record, it was unreasonable for the military judge to con-
clude that Appellant specifically intended bodily harm.
We likewise agree with Appellant’s point that, on the question whether the
handgun she used was a dangerous weapon, the military judge “grounded his
questions in hypothetical possibilities, even remarking that she could load a
bullet in a different scenario but, given the facts as they were, all she could
have done is throw[n] [the handgun] at [the victim] from [some] distance.” Ap-
pellant’s plea of guilty established that she “intentionally point[ed] an un-
loaded firearm,” and not that the handgun was a dangerous weapon because
she could have thrown it at the victim or chambered a round.
In line with the providence inquiry, we would have to presume that the
military judge proceeded to the sentencing phase of court-martial with the un-
founded belief that Appellant intended bodily harm to the victim and that she
used a dangerous weapon in the commission of the charged offense. In doing
so, the military judge undermined a fundamental right of Appellant to due
consideration of the nature and circumstances of the lesser offense that the
Government charged. Even during presentencing proceedings, the military
judge operated under the same misapprehension that clouded the case since
the plea inquiry two days earlier. In that regard, trial counsel argued without
11 Appellant’s affirmative response was ambiguous. She may have agreed that the
handgun could have been a dangerous weapon or that it was dangerous. Alternatively,
her response might have been a polite acknowledgement that she understood the mil-
itary judge had a purpose in asking the question.
10
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objection for a lengthy sentence because “the accused committed an aggravated
assault with a firearm.” (Emphasis added).
Turning to the question of prejudice, we believe the correct standard is to
ask whether the military judge’s error “substantially influence[d] Appellant’s
adjudged sentence.” United States v. Edwards, 82 M.J. 239, 247 (C.A.A.F.
2022). We believe that it did, and we agree with Appellant that the military
judge’s errors permeated sentencing. At the outset, we note that the military
judge imposed no confinement for the offense of negligent dereliction of duty
and minimal confinement for Charge III and its Specification. The Government
notes Appellant received a sentence of just seven days confinement and a bad
conduct discharge. The Government argues that Appellant’s punitive exposure
was unchanged because the maximum punishment for both offenses was the
same without regard to forum12 and because the special court-martial forum
limited her punitive exposure to one year of confinement and a bad-conduct
discharge.
We are not persuaded by these arguments. The military judge imposed a
sentenced for an offense more serious than Appellant was charged with com-
mitting. He erred by evaluating Appellant’s conduct in reference to the nature
and circumstances of an offense more aggravating than was shown by her prov-
idence inquiry. R.C.M. 1002(f)(1). He sentenced Appellant for matters in ag-
gravation that were not shown by that inquiry or the evidence. Under these
circumstances, we are compelled to conclude that these errors substantially
influenced the sentence he determined was appropriate.13
We have broad discretion to reassess a sentence to cure error. United States
v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013). Our discretion weighs
against reassessment when appellate review results in a dramatic change to
the penalty landscape, the gravamen of the criminal conduct is changed, or
aggravating circumstances are found inadmissible or irrelevant. Id. We may
reassess a sentence only if we are able to reliably determine that, absent the
error, the sentence would have been “at least of a certain magnitude.” United
States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000) (citation omitted). Applying the
Winckelmann factors, we are not convinced that we can reliably make such a
12 The maximum authorized punishment is the same. Compare MCM, pt. IV, para.
77.d.(1)(b) (simple assault with an unloaded firearm) with MCM, pt. IV, para.
77.d.(3)(a)(iii) (aggravated assault with a dangerous weapon when not committed un-
der circumstances specified in subparagraphs (i) and (ii)).
13 To be clear, Appellant’s sentence is incorrect in law and fact. Article 66(d)(1), 10
U.S.C. § 866(d)(1). Our decision today does not reach the question whether, on this
record, a sentence that includes seven days’ confinement and a punitive discharge
should not be approved because it may be inappropriately severe.
11
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determination. Winckelmann, 73 M.J. at 15–16. In view of the military judge’s
fundamental misapprehension of law and finding matters in aggravation un-
supported by the record, “the only fair course of action is to have [Appellant]
resentenced at the trial level.” Harris, 53 M.J. at 88 (quoting United States v.
Peoples, 29 M.J. 426, 429 (C.M.A. 1990)).
III. CONCLUSION
The findings are correct in law and fact. Accordingly, the findings as en-
tered are AFFIRMED. The sentence is SET ASIDE for error materially prej-
udicial to a substantial right of Appellant. Articles 59(a) and 66(d), UCMJ, 10
U.S.C. §§ 859(a), 866(d). The record is returned to The Judge Advocate General
for further proceedings consistent with this opinion. A rehearing is authorized.
Article 66(f)(2), UCMJ, 10 U.S.C. § 866(f)(2). Thereafter, the record will be re-
turned to the court to complete appellate review under Article 66(d), UCMJ.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
12