United States v. Fernandez

United States Navy–Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Gherson FERNANDEZ
Aviation Structural Mechanic Second Class (E-5), U.S. Navy
Appellant
No. 201900047
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Decided: 13 May 2019.
Military Judges:
Captain Aaron C. Rugh, JAGC, USN (arraignment);
Captain Jonathan T. Stephens, JAGC, USN (trial).
Sentence adjudged 1 October 2018 by a general court-martial
convened at Naval Base San Diego, California, consisting of a military
judge sitting alone. Sentence approved by convening authority:
reduction to E-1, forfeiture of all pay and allowances, confinement for
7 years, 1 and a dishonorable discharge.
For Appellant:
Lieutenant Commander W. Scott Stoebner, JAGC, USN.
For Appellee:
Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
1 The Convening Authority suspended confinement in excess of 60 months
pursuant to a pretrial agreement.
United States v. Fernandez, No. 201900047
Before HUTCHISON, LAWRENCE, and ATTANASIO,
Appellate Military Judges.
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the approved findings and sentence are
correct in law and fact and that no error materially prejudicial to Appellant’s
substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
However, we note that the court-martial order (CMO) does not accurately
reflect that Specifications 1, 2, 3, 4, and 5 of the Charge were withdrawn and
dismissed without prejudice prior to findings. The appellant is entitled to
have court-martial records that correctly reflect the content of his proceeding.
United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
Accordingly, the supplemental CMO shall reflect that Specifications 1, 2, 3, 4,
and 5 under the Charge were withdrawn and dismissed without prejudice, to
ripen into prejudice upon completion of appellate review.
The findings and sentence as approved by the convening authority are
AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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