United States v. Bork ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOLIFIELD, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Timothy BORK
Hospital Corpsman First Class (E-6), U.S. Navy (Retired)
Appellant
No. 202000191
_________________________
Decided: 20 January 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Chad C. Temple
Sentence adjudged 15 May 2020 by a general court-martial convened at
Naval Base San Diego, California, consisting of a military judge sitting
alone. Sentence approved by the convening authority: confinement for
six years and a dishonorable discharge.
For Appellant:
Captain Daniel J. McCoy, JAGC, USN
For Appellee:
Lieutenant Nicholas Hathaway, USCG
Major Clayton L. Wiggins, USMC
United States v. Bork, NMCCA No. 202000191
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of one specification of sex-
ual assault of a child and four specifications of sexual abuse of a child, in vio-
lation of Article 120b, Uniform Code of Military Justice [UCMJ], 1 for discuss-
ing, viewing, and engaging in various sexual activity with a 15-year-old.
Appellant asserts two assignments of error [AOEs]: (1) that Article 2(a)(6),
UCMJ, violates Fifth Amendment equal protection by subjecting members of
the Fleet Reserve to UCMJ jurisdiction while excluding Reservists and Reserve
retirees from such jurisdiction when not on active duty; and (2) that Appellant,
a Fleet Reservist, does not have a sufficient current connection to the military
for Congress to subject him to constant UCMJ jurisdiction. We find no preju-
dicial error and affirm.
I. DISCUSSION
Appellant was an active-duty Sailor for 21 years before retiring and becom-
ing a member of the Fleet Reserve, in which status he committed the offenses
for which he was convicted at court-martial. In United States v. Begani, which
was decided after the parties submitted their briefs, our superior court held
that Article 2(a)(6)’s subjecting of members of the Fleet Reserve and not retired
Reservists to UCMJ jurisdiction does not violate equal protection. 2 In the same
case, which is binding precedent on this Court, our superior court reiterated
1 10 U.S.C. § 920b.
2 United States v. Begani, 81 M.J. 273, 281 (C.A.A.F. 2021), cert. denied, ___ U.S.
___, 211 L. Ed. 2d 400 (2021). We find the court’s reasoning applies equally with respect
to the exclusion from UCMJ jurisdiction of non-retired Reservists when not on active
duty.
2
United States v. Bork, NMCCA No. 202000191
Opinion of the Court
its previous holding that members of the Fleet Reserve have a sufficient cur-
rent connection to the military such that Congress may constitutionally subject
them to UCMJ jurisdiction. 3 We therefore find no merit in Appellant’s AOEs.
II. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights occurred. 4
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3 Id.4 Articles 59 & 66, UCMJ.
3