United States v. Fehrenback ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, ATTANASIO, and HACKEL
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Brian P. FEHRENBACH
Private (E-1), U.S. Marine Corps
Appellant
No. 202200001
_________________________
Decided: 28 June 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Kimberly J. Kelly
Sentence adjudged 30 September 2021 by a special court-martial con-
vened at Naval Air Station Pensacola, Florida, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: confinement for
one month1 and a bad-conduct discharge.
For Appellant:
Lieutenant Daniel E. Grunert, JAGC, USN
1 The convening authority suspended all confinement for a period of six months.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, 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.2
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the charges.3 Although we find no prejudice, Appellant is en-
titled to have court-martial records that correctly reflect the content of his pro-
ceeding.4 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the
Entry of Judgment and direct that it be included in the record.
The findings and sentence are AFFIRMED.
FOR THE COURT:
KYLE D. MEEDER
Clerk of Court
2 Articles 59 & 66, Uniform Code of Military Justice, 10 U.S.C. §§ 859, 866.
3 The original Entry of Judgment incorrectly listed the pleas and findings of Addi-
tional Charge II and Specification 2 of Additional Charge II.
4 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
2
UNITED STATES NMCCA NO. 202200001
v. ENTRY
OF
Brian P. FEHRENBACH JUDGMENT
Private (E-1)
U.S. Marine Corps As Modified on Appeal
Accused
28 June 2022
On 30 September 2021, the Accused was tried at Naval Air Station Pen-
sacola, Florida, by a special court-martial consisting of a military judge sitting
alone. Military Judge Kimberly J. Kelly, presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all of-
fenses the convening authority referred to trial:
Charge I: Violation of Article 81, Uniform Code of Military Justice,
10 U.S.C. § 881.
Plea: Guilty.
Finding: Guilty.
Specification: Conspiracy to Obstruct Justice on or about 26
October 2019.
Plea: Guilty.
Finding: Guilty.
Charge II: Violation of Article 115, Uniform Code of Military
Justice, 10 U.S.C. § 915.
Plea: Not Guilty.
Finding: Dismissed.
Specification 1: Communicating a threat to Seaman Recruit C.D.
on or about 25 October 2019.
Plea: Not Guilty.
Finding: Dismissed.
Specification 2: Communicating a threat to Lance Corporal S.R.
on or about 25 October 2019.
Plea: Not Guilty.
Finding: Dismissed.
Charge III: Violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920.
Plea: Not Guilty.
Finding: Dismissed.
Specification 1: Sexual assault (without consent) of Lance
Corporal S.R. on or about 25 October 2019.
Plea: Not Guilty.
Finding: Dismissed.
Specification 2: Sexual assault (person incapable of consent) of
Lance Corporal S.R. on or about 25 October
2019.
Plea: Not Guilty.
Finding: Dismissed.
Charge IV: Violation of Article 131b, Uniform Code of Military
Justice, 10 U.S.C. § 931b.
Plea: Guilty.
Finding: Guilty.
Specification 1: Obstruction of justice on or about 26 October
2019.
Plea: Guilty.
Finding: Guilty.
Specification 2: Obstruction of justice on or about 25 October
2019.
Plea: Not Guilty.
Finding: Dismissed.
Additional
Charge I: Violation of Article 86, Uniform Code of Military Justice,
10 U.S.C. § 886.
4
Plea: Guilty.
Finding: Guilty.
Specification: Failure to go to appointed place of duty on or
about 9 May 2021.
Plea: Guilty.
Finding: Guilty.
Additional
Charge II: Violation of Article 92, Uniform Code of Military Justice,
10 U.S.C. § 892.
Plea: Guilty.
Finding: Guilty.
Specification 1: Violation of a lawful written order on or about 9
May 2021.
Plea: Not Guilty.
Finding: Dismissed.
Specification 2: Violation of a lawful written order on or about 9
May 2021.
Plea: Guilty.
Finding: Guilty.
SENTENCE
On 30 September 2021, a military judge sentenced the Accused to the fol-
lowing:
For the Specification of Charge I:
confinement for 1 month.
For Specification 1 of Charge IV:
confinement for 1 month.
For the Specification of Additional Charge I:
no confinement.
For Specification 2 of Additional Charge II:
no confinement.
The terms of confinement will run concurrently.
Confinement for a total of 1 month.
A bad-conduct discharge.
5
The convening authority suspended all confinement for a period of 6
months.
FOR THE COURT:
KYLE D. MEEDER
Clerk of Court
6