              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________
                              No. ACM S32405
                          ________________________
                            UNITED STATES
                                Appellee
                                      v.
                        Andrew L. MORALES
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________
        Appeal from the United States Air Force Trial Judiciary
                            Decided 7 July 2017
                          ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, 3 months of confinement,
and reduction to the grade of E-1. Sentence adjudged 22 March 2016
by SpCM convened at Malmstrom Air Force Base, Montana.
For Appellant: Major Annie W. Morgan, USAF; Captain Patricia En-
carnación Miranda, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Gerald R. Bruce,
Esquire.
Before DREW, J. BROWN, and HARDING, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which Chief
Judge DREW and Judge HARDING joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

J. BROWN, Senior Judge:
    At a special court-martial composed of military judge sitting alone, Appel-
lant was convicted, consistent with his pleas and a pretrial agreement, of two
charges with four total specifications of assault consummated by a battery in
violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                     United States v. Morales, No. ACM S32405


§ 928, and one charge with a single specification of drunk and disorderly con-
duct in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The military judge
sentenced Appellant to a bad-conduct discharge, three months of confine-
ment, and reduction to the grade of E-1. The convening authority deferred
the automatic forfeitures prior to action on the case. The convening authority
subsequently approved the sentence as adjudged.
   On appeal, Appellant asserts that his sentence is inappropriately severe. 2
Finding no relief is warranted, we affirm the findings and sentence.

                                   I. BACKGROUND
    Appellant’s troubles began in, and were confined to, the early morning
hours of 1 January 2016. Appellant elected to attend an all-you-can-drink
New Year’s event at a local bar in Great Falls, Montana. While there, he
made the ill-fated decision to drink at least five beers and five shots of alco-
hol. He was extremely intoxicated and became incoherent and indiscrimi-
nately belligerent. Based on his behavior and level of intoxication, Appellant
was asked by the staff at the bar to leave. When he left the bar, he initially
got into a vehicle that did not belong to him. After exiting the vehicle, he
slipped on the ice and fell, remaining there until two other non-commissioned
officers helped him to his feet. The staff at the local bar contacted Airmen
Against Drunk Driving (AADD) to give Appellant a ride home.
    AADD dispatched Airman First Class (A1C) NT, a 22-year old female, to
the bar to pick up Appellant. In addition to Appellant, A1C NT also picked up
two intoxicated Senior Airmen. While in the car, Appellant repeatedly
grabbed and touched A1C NT’s leg and upper thigh. Each time, A1C NT told
him to stop and, on the last time, told him that he was being unprofessional.
While standing outside the car, Appellant also grabbed A1C NT from behind
in an embrace and reached inside her jacket and squeezed one of her breasts
with his hand. On another occasion that night, Appellant kissed her on the
lips without her consent.
   In response to Appellant’s escalating sexualized behavior toward A1C NT,
one of the two Senior Airmen attempted to intervene. Appellant then became
physically aggressive towards that Senior Airman. While they were both in

1 Pursuant to the pretrial agreement, Appellant pleaded not guilty to two specifica-
tions of abusive sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920, but
guilty to the lesser-included offense of assault consummated by battery in violation of
Article 128, UCMJ, 10 U.S.C. § 928. There was no Appendix or sentence limitation in
the pretrial agreement.
2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




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                 United States v. Morales, No. ACM S32405


A1C NT’s car, Appellant swung his fist at the Airman and struck him in the
face. A1C NT, in an effort to diffuse the situation, stopped the car and asked
the person he hit to get out. She then was able to drive Appellant home.
    In clemency, Appellant’s only request was that he either be released from
confinement with time served or that the remaining portion of his confine-
ment be commuted to hard labor without confinement. A1C NT, the primary
victim, submitted a letter to the convening authority supporting Appellant’s
early release from confinement and asserted that she was “in no way trauma-
tized by what happened and [she] believe[d] that his reduction to E1 and the
fact that he is being discharged [was] more than sufficient punishment.” Ap-
pellant, however, ultimately completed his adjudged confinement prior to ac-
tion by the convening authority, and the convening authority approved the
sentence as adjudged.

                               II. DISCUSSION
    Appellant, pursuant to Grostefon, 12 M.J. 431, asserts that his sentence is
inappropriately severe for three reasons: (1) his more than ten years of hon-
orable service; (2) the primary victim’s (A1C NT) belief that the sentence was
too severe; and (3) that the incidents occurred on a single night and were in-
consistent with his character when he was sober. While we acknowledge that
this may be a compelling argument for clemency, that is not our role, and we
find that the sentence is not inappropriately severe.
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty, and
the sentence or such part or amount of the sentence, as [we find] correct in
law and fact and determine[], on the basis of the entire record, should be ap-
proved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appro-
priateness by considering the particular appellant, the nature and serious-
ness of the offenses, the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705
(A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in de-
termining whether a particular sentence is appropriate, we are not author-
ized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138,
146 (C.A.A.F. 2010).
    The maximum authorized sentence for Appellant’s offenses was a bad-
conduct discharge, confinement for 12 months, forfeiture of two-thirds pay
per month for 12 months, and reduction to the grade of E-1. Appellant nego-
tiated a pretrial agreement whereby the Government dismissed the greater
offense in the two specifications involving abusive sexual contact in violation
of Article 120, UCMJ, 10 U.S.C. § 920, but imposed no sentence limitations.




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                  United States v. Morales, No. ACM S32405


Thus, the approved sentence was within the discretion of the convening au-
thority.
   We have given individualized consideration to this Appellant, his conduct,
his military career and accomplishments, and the other relevant matters
within the record of trial. We recognize that Appellant’s crimes were appar-
ently out-of-character for him and attributable in significant part to his se-
vere intoxication. His voluntary intoxication, however, cannot excuse his con-
duct that evening. He repeatedly accosted a lower-ranking female who was
dispatched to assist him and provide him a ride home. When another Airman
came to her defense, Appellant struck him in the face. Recognizing that we
are prohibited from providing clemency, we find the approved sentence is not
inappropriately severe. 3

                               III. CONCLUSION
    The approved 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(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




3In so concluding, we recognize that sentence appropriateness under Article 66(c),
UCMJ, 10 U.S.C. § 866(c), is distinct from whether the Secretary of the Air Force
may review the case and determine if any relief is warranted under Article 74(b),
UCMJ, 10 U.S.C. § 874(b).




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