United States v. Gonzales ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
JOHN P. GONZALES
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400282
SPECIAL COURT-MARTIAL
Sentence Adjudged: 3 April 2014.
Military Judge: Col D.M. McConnell, USMC.
Convening Authority: Commanding Officer, 2d Supply
Battalion, Combat Logistics Regiment 25, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Capt M.D. Jefferson,
USMC.
For Appellant: LT Christopher McMahon, JAGC, USN.
For Appellee: Maj Tracey L. Holtshirley, USMC.
14 May 2015
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OPINION OF THE COURT
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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.
PER CURIAM:
A special court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of making a false official statement and one
specification of stealing U.S. Government property of a value
greater than $500.00 in violation of Articles 107 and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 921. The
members sentenced the appellant to reduction to pay grade E-1
and a bad-conduct discharge. The convening authority (CA)
approved the adjudged sentence.
The appellant’s sole assignment of error is that the bad-
conduct discharge is unjustifiably severe. After carefully
considering the record of trial and the submissions of the
parties, we are convinced that the findings and the sentence are
correct in law and fact, and that no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.
Background
The appellant, although divorced on 22 July 2011, continued
to represent to the Marine Corps that he was married until 17
October 2013. When the appellant had an opportunity to correct
his marital status in July 2012 by revising his official Record
of Emergency Data, he falsely represented he was still married
and signed off on the document. In total, the appellant
received over $28,000.00 in payments he was not otherwise
entitled to because he was no longer married.
The appellant’s marital status came into question when his
now ex-wife married another Marine and could not be added as
that Marine’s dependent, because she was still on record as
being married to the appellant. When first questioned by his
chain-of-command, the appellant claimed that he was still
married. However, when confronted with a copy of the divorce
decree, he admitted that he was divorced. Soon thereafter, the
appellant formally changed his marital status to “divorced” and
made restitution.
Sentence Appropriateness
This court reviews the appropriateness of a sentence de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
A military appellate 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.” Art. 66(c), UCMJ.
Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves. United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and the character of the
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offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
After review of the entire record, we find that the
sentence is appropriate for this appellant and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. In over two
years, the appellant stole over $28,000.00 of funds from the
U.S. Government through his own lack of action and false
representations. Only when confronted with the actual divorce
decree did the appellant admit that he was no longer married.
Considering the nature and seriousness of a this conduct,
against the appellant’s record of military service and job
performance, repeated combat deployments, favorable character
references and diagnosis of traumatic brain injury incurred
after his most recent deployment, 1 we conclude that justice is
done and the appellant received the punishment he deserves by
affirming the sentence as approved by the CA. Granting sentence
relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
1
In his unsworn statement and signed post-trial Declaration attached to the
record, the appellant discusses his diagnosis of traumatic brain injury (TBI)
as a result of an “IED blast” he suffered in November 2012 while in
Afghanistan. Record at 286 and Declaration of Corporal P. Gonzales dated 25
Nov 2014. The matter is addressed by the parties on the record. The
appellant’s civilian defense counsel asserted on the record that the matter
of TBI did not create any issues as to the appellant’s lack of mental
capability, ability to contribute to his defense or warrant a 706 board to
inquire into his mental capacity or mental responsibility. Record at 287.
We agree and consider the appellant’s TBI only in the context of sentence
appropriateness.
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