United States v. Golightly ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201800177
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UNITED STATES OF AMERICA
Appellee
v.
Ethan T. GOLIGHTLY
Lance Corporal (E-3), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Mark D. Sameit, USMC.
For Appellant: Captain Matthew A. Blackwood, USMCR.
For Appellee: Lieutenant Jonathan Todd, JAGC, USN.
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Decided 22 October 2018
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Before F ULTON , C RISFIELD , and H ITESMAN ,
Appellate Military Judges
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This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
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PER CURIAM:
A military judge, sitting as a special court-martial, convicted the appel-
lant, pursuant to his plea, of one specification of assault consummated by a
battery in violation of Article 128, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 928 (2016), and sentenced him to 170 days’ confinement and a
bad-conduct discharge. Pursuant to a pretrial agreement, the Convening Au-
thority (CA) agreed to suspend and remit the adjudged punitive discharge if
the appellant voluntarily waived administrative separation proceedings. Af-
ter the appellant waived his right to an administrative separation board,
United States v. Golightly, No. 201800177
however, the CA approved the sentence as adjudged, and with the exception
of the punitive discharge, ordered it executed. In his action, the CA made no
reference to suspending or remitting the bad-conduct discharge.
The appellant asserts that the promulgating order fails to comply with
RULE FOR COURTS-MARTIAL 1114(c), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.) because it does not correctly reflect the CA’s agreement to
suspend and remit the adjudged bad-conduct discharge. The government con-
cedes the error, but contends the appellant suffered no prejudice.
We agree that there was error. Additionally, we find that the error has re-
sulted in material prejudice to a substantial right of the appellant in that the
error has denied him of a vital component of the agreement for which he bar-
gained—the suspension and conditional remittance of his adjudged punitive
discharge. “In the instant case, the convening authority’s . . . action is errone-
ous as a matter of law because it did not provide for suspension of the bad-
conduct discharge as provided in the pretrial agreement.” United States v.
Cox, 22 C.M.A. 69, 72 (1972). Therefore, since the CA failed “to take action
required by a pretrial agreement,” we will take action in our decretal para-
graph to correct the error and provide the appellant with his bargained for
benefit. United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016)
(citing Cox, 22 C.M.A. at 72).
The findings and sentence as approved by the convening authority are af-
firmed. To correct the error and ensure that the appellant receives the benefit
of his bargain with the CA, the supplemental court-martial order shall reflect
that the appellant’s bad-conduct discharge is suspended until his administra-
tive separation processing is completed and he has been discharged, at which
time, unless sooner vacated, his suspended punitive discharge will be remit-
ted without further action.
FOR THE COURT
RODGER A. DREW, JR.
Clerk of Court
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