United States v. Allen

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600391
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UNITED STATES OF AMERICA
Appellee
v.
BRIAN R. ALLEN
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
Convening Authority: Commanding Officer, 6th Marine Regiment,
2d Marine Division, Camp Lejeune, NC.
Staff Judge Advocate’s Recommendation: Major Winston G.
McMillan, USMC.
For Appellant: Captain James S. Kresge, USMCR.
For Appellee: Commander Joseph E. Stolasz, JAGC, USN;
Lieutenant Jetti L. Gibson, JAGC, USN.
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Decided 20 July 2017
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Before M ARKS , R UGH , AND J ONES , Appellate Military Judges
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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.
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PER CURIAM:
A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification of failing to obey a lawful general
order (possession of drug paraphernalia), one specification of possession of a
controlled substance, two specifications of use of a controlled substance, one
specification of wrongful appropriation, and one specification of larceny, in
United States v. Allen, No. 201600391
violation of Articles 92, 112a and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 912a, and 921 (2012). The military judge
sentenced the appellant to sixty days’ confinement, reduction to pay grade E-
1, and a bad-conduct discharge. In accordance with a pretrial agreement, the
convening authority approved the sentence, suspended confinement in excess
of thirty days, , and except for the bad-conduct discharge, ordered the
sentence executed.
The appellant raises one assignment of error, averring a bad-conduct
discharge is an inappropriately severe sentence considering his otherwise
honorable service.1 We disagree and, after careful consideration of the record
of trial and the pleadings of the parties, we conclude that the findings and
the sentence are 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.
I. BACKGROUND
The appellant, a staff sergeant (E-6), was addicted to heroin and used it
regularly. To this end, he kept spoons, cotton balls, and a syringe for injecting
heroin in his desk drawer onboard Camp Lejeune, North Carolina.
Additionally, the appellant wrongfully appropriated a gunnery sergeant’s
debit card, using it to withdraw $200.00 from his bank account.
At the time of trial, the appellant had served in the Marine Corps for 14
years, including two deployments in Iraq and two in Afghanistan. During his
service, he earned two Navy-Marine Corps Commendation medals and four
Navy-Marine Corps Achievement medals. Prior to his offenses, he had no
significant disciplinary history.
During his first tour in Iraq, the appellant was caught in an improvised
explosive device blast, which left him with severe abdominal pain. Following
doctor instructions, he treated his pain with prescription opioid medication
for 11 years. Subsequently, the appellant was diagnosed with Opioid Use
Disorder, for which he completed a substance abuse rehabilitation program.
During the same time period, the appellant suffered several personal
tragedies including the deaths of his father in 2011 and his ex-wife in 2009,
leaving him the sole parent of their child, which he raised with his other two
children.
1 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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II. DISCUSSION
The appellant now alleges that his sentence to a bad-conduct discharge
was inappropriately severe. We disagree.
“Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180-81 (C.M.A. 1959)). This court “may affirm only such
findings of guilty, and the sentence or such part or amount of the sentence, as
it finds correct in law and fact and determines, on the basis of the entire
record.” Art. 66(c), UCMJ, 10 U.S.C. § 866(c). It is well-settled that a court-
martial is free to impose any lawful sentence it determines appropriate.
United States v. Dedert, 54 M.J. 904, 909 (N-M. Ct. Crim. App. 2001); RULE
FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.).
We review the appropriateness of the sentence de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). After review of the entire record, we find
that the sentence is appropriate for this offender and his offenses. United
States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96;
Snelling, 14 M.J. at 268. The appellant's sentence does not rise to the level of
an obvious miscarriage of justice or an abuse of discretion, as the sentence
does not exceed the maximum punishment. United States v. Lacy, 50 M.J.
286 (C.A.A.F. 1999); Snelling, 14 M.J. at 268. As a leader of Marines with 14
years of service, the appellant knew well the unlawful nature of his actions.
His misconduct adversely affected a fellow Marine and negatively impacted
the good order and discipline of his unit. While we note that the appellant
was first exposed to opioids through a lawful prescription, and we laud that
he has since participated in a rehabilitation program, these facts do not
completely ameliorate his misconduct.
We are convinced that justice was done and that the appellant received
the punishment he deserved. Healy, 26 M.J. at 395. Granting sentence relief
at this point would be to engage in clemency, a prerogative reserved for the
convening authority, and we decline to do so. Id. at 395-96.
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III. CONCLUSION
The findings and the sentence, as approved by the convening authority,
are affirmed.
For the Court
R. H. TROIDL
Clerk of Court
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