United States v. Flowers

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
KEVIN W. FLOWERS
AVIATION ORDNANCEMAN SECOND CLASS (E -5), U.S. NAVY
NMCCA 201400003
SPECIAL COURT-MARTIAL
Sentence Adjudged: 5 September 2013.
Military Judge: CAPT Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commanding Officer, USS DWIGHT D.
EISENHOWER (CVN 69).
Staff Judge Advocate's Recommendation: LCDR G.J. Nadella,
JAGC, USN.
For Appellant: Maj Richard A. Viczorek, USMCR.
For Appellee: LCDR Catherine E. Pulley, JAGC, USN; Maj
Crista D. Kraics, USMC.
24 July 2014
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OPINION OF THE COURT
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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 aggravated assault, in violation of Article
128, Uniform Code of Military Justice, 10 U.S.C. § 928. The
military judge sentenced the appellant to nine months’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged, and except for the bad-conduct discharge, ordered
the sentence executed. In accordance with the pretrial
agreement, the CA suspended all confinement in excess of six
months for the period of confinement served plus six months
thereafter.
The appellant’s sole assignment of error claims that the
promulgating order inaccurately reflects that the appellant was
found guilty of Charge IV when, in fact, the order should have
reflected that the charge had been withdrawn.1
We are convinced that this error did not materially
prejudice the substantial rights of the appellant. Thus we find
no plain error. Nevertheless, the appellant is entitled to have
his official records accurately reflect the results of his
court-martial. United States v. Crumpley, 49 M.J. 538(N.M.Ct.Crim.App. 1998). The necessary correction shall be
reflected in the supplemental court-martial order.
After careful consideration of the record, the appellant’s
claims and the briefs of the parties, we conclude that that the
findings and the sentence are otherwise correct in law and fact,
and that no error materially prejudicial to the substantial
rights of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.
Conclusion
The findings and the sentence are affirmed. We direct that
the supplemental court-martial order shall correctly reflect
that Charge IV was withdrawn.
For the Court
R.H. TROIDL
Clerk of Court
1
The promulgating order correctly reflects that sole specification under
Charge IV had been withdrawn.
2