United States v. Welsh

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32719 (f rev)
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UNITED STATES
Appellee
v.
Damien K. WELSH
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 6 April 2023
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Military Judge: Sterling C. Pendleton.
Sentence: Sentence adjudged 24 August 2021 by SpCM convened at Avi-
ano Air Base, Italy. Sentence entered by military judge on 27 October
2021: Bad-conduct discharge, confinement for 95 days, forfeiture of
$400.00 pay per month for three months, reduction to E-1, and a repri-
mand.
For Appellant: Captain Thomas R. Govan, Jr., USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Deepa
M. Patel, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Es-
quire.
Before JOHNSON, ANNEXSTAD, and GRUEN, Appellate Military
Judges.
Judge GRUEN delivered the opinion of the court, in which Chief Judge
JOHNSON and Judge ANNEXSTAD joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Welsh, No. ACM S32719 (f rev)
GRUEN, Judge:
A military judge sitting as a special court-martial convicted Appellant, con-
sistent with his pleas and pursuant to a plea agreement, of four specifications
of assault consummated by a battery against a spouse in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928.1 The military
judge sentenced Appellant to a bad-conduct discharge, confinement for 95
days, forfeiture of $400.00 pay per month for three months, reduction to the
grade of E-1, and a reprimand.
Appellant’s case is before us a second time. Appellant originally raised two
assignments of error: (1) whether the record of trial was incomplete, and (2)
whether his sentence is inappropriately severe.2 On 26 October 2022, we re-
turned the record of trial to the Chief Trial Judge, Air Force Trial Judiciary, to
resolve a substantial issue with the post-trial processing regarding the com-
pleteness of the record of trial. United States v. Welsh, No. ACM S32719, 2022
CCA LEXIS 631, at *3 (26 Oct. 2022) (order).
On 30 November 2022, the record of trial was returned to the court. We
find the corrections on remand have resolved the first issue raised by Appel-
lant. Appellant does not raise any additional assignments of error but pre-
serves the raised issue regarding whether his sentence is inappropriately se-
vere. Additionally, we have identified an issue with the entry of judgment (EoJ)
which we address below. We find no error materially prejudicial to a substan-
tial right of Appellant and affirm the findings and sentence.
I. BACKGROUND
Appellant entered active duty on 2 December 2014. He and AW, the victim
in this case, were married on 17 December 2016. Between on or about 1 De-
cember 2020 and on or about 1 January 2021, Appellant and AW got into mul-
tiple physical altercations. These altercations, which started with both being
frustrated with each other, resulted in heated arguments and Appellant phys-
ically assaulting AW on multiple occasions. Appellant admitted in his Care3
inquiry that during the charged timeframe, he pushed AW with his hands,
grabbed her wrists with his hand, and strangled her with his hands. The record
1All references to the UCMJ and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
2Appellant personally raised this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
3 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
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United States v. Welsh, No. ACM S32719 (f rev)
of trial includes photos of red marks and bruises on AW. In July 2021, Appel-
lant and AW divorced.
II. DISCUSSION
A. Sentence Severity
Appellant contends his sentence, “in particular the adjudged bad-conduct
discharge,” is inappropriately severe because he took responsibility for his ac-
tions, pleaded guilty, and showed remorse. He further argues that the bad-
conduct discharge was a punishment greater than necessary to promote justice
under the unique circumstances of this case. Appellant’s plea agreement re-
quired the military judge to sentence Appellant to confinement for no less than
60 days and no more than eight months. The plea agreement further contained
the following statement: “For the charges and specifications for which I am
pleading guilty, I agree that the military judge may sentence me to a bad con-
duct discharge.” The military judge sentenced Appellant to a bad-conduct dis-
charge, 95 days of confinement, forfeiture of $400.00 pay per month for three
months, reduction to the grade of E-1, and a reprimand.
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citation omitted). Our authority to deter-
mine sentence appropriateness “reflects the unique history and attributes of
the military justice system, [and] includes but is not limited to considerations
of uniformity and evenhandedness of sentencing decisions.” United States v.
Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (citations omitted). We may affirm
only as much of the sentence as we find correct in law and fact and determine
should be approved on the basis of the entire record. Article 66(d)(1), UCMJ,
10 U.S.C. § 866(d)(1). “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)
(citations omitted). Although we have great discretion to determine whether a
sentence is appropriate, we have no power to grant mercy. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
Appellant has cited mitigating circumstances to support his request that
we “modify his sentence, and at minimum, disapprove the imposition of a bad-
conduct discharge.” Specifically, Appellant stated his conduct was “limited to
isolated instances that occurred in a confusing, difficult, and extremely stress-
ful time both in his life and in his dysfunctional marriage with AW” and noted
he apologized to AW for his conduct at his court-martial. He also cited “exten-
uating circumstances” to support his contention that his conduct was incon-
sistent with his character and thus did not merit a bad-conduct discharge. Spe-
cifically, he and AW served various temporary duty assignments that kept
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United States v. Welsh, No. ACM S32719 (f rev)
them separated after they married, and when they did unite, it was in an over-
seas location away from their families and during a global pandemic—which
added to isolation caused by lockdowns.
We have considered the mitigating and extenuating circumstances as well
as the aggravating circumstances in Appellant’s case. Particularly aggravating
are the facts that he assaulted AW on multiple occasions, kicked her with his
foot in her chest on one occasion, and strangled her on another. Appellant’s
assaults left AW with red marks and bruising. The strangulation is particu-
larly aggravating in that Appellant stipulated to the fact that as he strangled
AW, his hands were pressed against her windpipe and she could not breathe.
Appellant also stipulated that during that incident, AW was “afraid for her life
and struggled to get free.” We have carefully considered Appellant, his record
of service, his personal circumstances, and the entirety of the record of trial,
and we conclude Appellant’s adjudged sentence is not inappropriately severe.
B. Entry of Judgment
We turn now to an issue not raised by Appellant, but important to clarify—
that the EoJ is inaccurate and requires correction. The EoJ cites the arraigned
offense as “Art. 128a.” This is incorrect; the proper arraigned offense is Article
128, UCMJ. We note the charge sheet and the Statement of Trial Results cite
the correct UCMJ article. Rather than remand the case, this court will modify
the EoJ in our decretal paragraph pursuant to our authority under Rule for
Courts-Martial 1111(c)(2).
III. CONCLUSION
The entry of judgment is modified as follows: the “Arraigned Offense(s)” for
the Charge is modified by excepting the letter “a” after “Art. 128.” The findings
and sentence are correct in law and fact, and no error materially prejudicial to
the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence, as reflected
in the modified entry of judgment, are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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