United States v. Mac

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500413
_________________________
UNITED STATES OF AMERICA
Appellee
v.
WILLIAM G. MAC
Operations Specialist Third Class (E-4), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Paul C. LeBlanc, JAGC, USN.
Convening Authority: Commanding Officer, USS PINCKNEY
(DDG 91).
Staff Judge Advocate’s Recommendation: Lieutenant Commander
Christopher P. Toscano, JAGC, USN.
For Appellant: Captain Daniel R. Douglas, USMC.
For Appellee: Lieutenant Commander Catheryne E. Pully, JAGC,
USN; Lieutenant Jetti L. Gibson, JAGC, USN.
_________________________
Decided 16 February 2017
_________________________
Before M ARKS , G LASER -A LLEN , and J ONES , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent, but may be
cited as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
PER CURIAM:
A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification of wrongful use of marijuana and
one specification of assault consummated by a battery in violation of Articles
112a and 128, Uniform Code of Military Justice , 10 U.S.C. §§ 912a and 928.
United States v. Mac, No. 201500413
The military judge sentenced the appellant to eight months’ confinement,
forfeiture of $1,144.00 pay per month for eight months, reduction to pay
grade E-1, and a bad-conduct discharge. The convening authority approved
the adjudged sentence.
The appellant avers, and the government concedes, that the adjudged and
approved forfeitures of pay exceed the maximum allowed by law at this
special court-martial. The military judge calculated the adjudged forfeiture
amount by mistakenly including the $100 sea pay the appellant received at
the time of trial. “The maximum authorized amount of a partial forfeiture
shall be determined by using the basic pay . . . and, if no confinement is
adjudged, any sea or hardship duty pay.” RULE FOR COURTS-MARTIAL
1003(b)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
(emphasis added). As the adjudged sentence here included confinement, the
military judge should not have included sea pay when calculating maximum
forfeitures—two-thirds of basic pay, in whole dollars, at the appellant’s
reduced rank, or $1,031.00 pay per month.
After taking corrective action, we conclude that the findings and sentence
are correct in law and fact, and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.
The findings and only so much of the sentence as provides for confinement
for eight months, reduction to pay grade E-1, forfeiture of $1,031.00 pay per
month for eight months, and a bad-conduct discharge are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
2