United States v. Sergeant TIMOTHY J. RODRIGUEZ, SR

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant TIMOTHY J. RODRIGUEZ, SR.
United States Army, Appellant
ARMY 20140466
Headquarters, 1st Infantry Division and Fort Riley
Jeffery Nance, Military Judge
Colonel Craig E. Merutka, Staff Judge Advocate
For Appellant: Major M. Patrick Gordon, JA; Captain Heather L. Tregle , JA (on
brief).
For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Captain
Janae M. Lepir, JA; Captain Carrie L. Ward, JA (on brief).
30 April 2015
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SUMMARY DISPOSITION
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HAIGHT, Judge:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of knowingly and wrongfully distributing
child pornography and one specification of knowingly and wrongfully possessing
child pornography, in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for three years, and reduction to the grade of E-1.
The convening authority approved the sentence as adjudged.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error which merits discussion and relief.
RODRIGUEZ — ARMY 20140466
Discussion
Appellant claims the military judge failed to elicit a sufficient factual basis to
establish that appellant’s misconduct was prejudicial to good order and discipline in
the armed forces. We agree.
During the providence inquiry, when asked by the military judge how his
actions were prejudicial to good order and discipline, appellant responded that
military members should act with honor and integrity and should always do what is
right. While this nonresponsive answer may be laudable and accurate, it does not
indicate how appellant’s particular behavior caused a “reasonably direct and
palpable injury to good order and discipline.” United States v. Cendejas, 62 M.J.
334, 340 (C.A.A.F. 2005). Nor does the stipulation of fact, which, in relevant part,
merely states appellant believed the “morally repugnant nature of [appellant’s]
conduct would incite anger and physical violence amongst members of his unit.”
There was no discussion as to whether these possible reactions actually occurred.
Conclusion
We, therefore, dismiss the language “to the prejudice of good order and
discipline in the armed forces and” from both specifications. The findings of guilty
of Specifications 1 and 2 (as modified) and The Charge are AFFIRMED. After
consideration of the principles set forth by our superior court in United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305
(C.M.A. 1986), we are able to reassess the sentence and the approved sentence is
AFFIRMED. All rights, privileges, and property of which appellant has been
deprived by virtue of those findings set aside by this decision are hereby ordered
restored.
Senior Judge COOK and Judge TELLITOCCI concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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