United States v. Kellett ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Austin R. KELLETT
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000178
Decided: 25 November 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Stephen F. Keane (arraignment)
Jeffrey V. Munoz (trial)
Sentence adjudged 23 April 2020 by a special court-martial convened
at Marine Corps Base Camp Pendleton, California, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 100 days, forfeiture of $1,155.00 pay
per month for 4 months, and a bad-conduct discharge.
For Appellant:
Captain Thomas P. Belsky, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
United States v. Kellett, NMCCA No. 202000178
Opinion of the Court
_________________________
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. Uniform Code of Military Justice arts. 59, 66, 10 U.S.C.
§§ 859, 866.
The findings and sentence are AFFIRMED. 1
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
1 We note that the civilian trial defense counsel [CDC] was not sworn by either
military judge as required by Dep’t of the Navy, Judge Advocate General Instr.
5800.7F, Manual of the Judge Advocate General, para. 0130.a(3) (Ch-3, Mar. 30,
2020). However, CDC was a retired O-5 Marine judge advocate who was previously
certified in accordance with Article 27(b), UCMJ, and sworn in accordance with
Article 42(a), UCMJ. Under these circumstances, we find that CDC was qualified in
accordance with Article 38(b), UCMJ, and Rule for Courts-Martial 502(d)(2)(B) and
discern no prejudice. We thus find it unnecessary to take corrective action.
2