United States v. Arnold ( 2014 )

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.
MICHAEL A. ARNOLD
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400240
SPECIAL COURT-MARTIAL
Sentence Adjudged: 8 April 2014.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding Officer, 2d Supply
Battalion, Combat Logistics Regiment 25, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj B.T. Ackison,
USMC.
For Appellant: Maj Jeffrey Stephens, USMCR.
For Appellee: CDR Christopher J. Geis, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.
23 October 2014
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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 military judge
alone, convicted the appellant, pursuant to his pleas, of one
specification of larceny of government property with a value of
more than $500.00, in violation of Article 121, Uniform Code of
Military Justice, 10 U.S.C. § 921. The appellant was sentenced
to reduction to pay grade E-1, confinement for 60 days, and a
bad-conduct discharge. The military judge recommended that, as
a matter of clemency, the convening authority consider
suspending the bad-conduct discharge. The convening authority
approved the adjudged sentence.
Facts
The appellant was a noncommissioned officer assigned as a
property clerk to a supply battalion onboard Camp Lejeune, North
Carolina. On the date in question, the appellant remained late
in the supply warehouse completing an on-line military education
course. To permit him after hour’s access, the appellant’s
supervisor gave the appellant a key to the warehouse. At around
1700 on the date charged, the appellant was ordered to leave the
warehouse by the Battalion Supply Officer (BSO). Both the
appellant and the BSO left the warehouse and it was secured by
the BSO. However, after the BSO drove away from the warehouse,
the appellant went back inside, placed several items of
government property into a footlocker and carried the footlocker
to his vehicle. The BSO watched the appellant reenter and exit
the warehouse with the footlocker and confronted the appellant
at the appellant’s vehicle. At trial, the appellant pleaded
guilty and admitted that he intended to steal the military
property.
Sentence Appropriateness
In his sole assignment of error, the appellant asserts that
his sentence was inappropriately severe. We observe that a
court-martial is free to impose any lawful sentence that it
determines appropriate. United States v. Turner, 34 C.M.R. 215,
217 (C.M.A. 1964). However, 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.” Art.
66(c), UCMJ. We assess sentence appropriateness through
“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. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (citation and internal quotation marks
omitted).
While we have a great deal of discretion in determining
whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).
After review of the entire record of trial, we find that
the sentence is appropriate for this offender and his offense.
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Furthermore, we conclude that granting sentence relief at this
point would be to engage in clemency, a prerogative reserved for
the convening authority. United States v. Healy, 26 M.J. 394
(C.M.A. 1988).
Purported Execution of the Punitive Discharge
We note that the Court-Martial Order states, “Subject to
the limitations contained in the [UCMJ], the Manual for Courts-
Martial, applicable regulations, and this action, the sentence
is ordered executed.” Article 71, UCMJ, “does not permit a
punitive discharge to be executed until after there is a final
judgment, an event which necessitates review by a Court of
Criminal Appeals.” United States v. Tarniewicz, 70 M.J. 543,
544 (N.M.Ct.Crim.App. 2011). “[T]o the extent that the
convening authority's action purported to execute the bad-
conduct discharge, it was a nullity.” United States v. Bailey,
68 M.J. 409, 409 (C.A.A.F. 2009) (summary disposition); see
Tarniewicz, 70 M.J. at 544 n.2.
Conclusion
The findings and sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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