               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, D.A. NORKIN
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      MATTHEW J. RADZEWSKY
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201500089
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 25 November 2014.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding Officer, 2d Light Armored
Reconnaissance Battalion, 2d Marine Division, Camp Lejeune,
NC.
Staff Judge Advocate's Recommendation: LtCol K.S. Woodard,
USMC.
For Appellant: CDR Brendan Curran, JAGC, USN.
For Appellee: Mr. Brian K. Keller, Esq.

                             6 August 2015

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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 two
specifications of possession, one specification of use, and one
specification of introduction of a controlled substance; one
specification of making a check without sufficient funds; and
two specifications of dishonorably failing to pay debts, in
violation of Articles 112a, 123a, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 912a, 923a, and 934. The
military judge sentenced the appellant to confinement for 45
days, reduction to pay grade E-3, and a bad-conduct discharge.
The convening authority (CA) approved the sentence as adjudged,
but deferred and waived automatic forfeitures in accordance with
the pretrial agreement.

     The appellant’s case was submitted to this court without
assignment of error. Upon review, we find that corrective
action is necessary. Following our 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.

     Pursuant to his pretrial agreement, the appellant pled
guilty to two specifications of wrongfully possessing a
controlled substance, each on "diverse [sic] occasions." 1 In
advising the appellant of the elements of these offenses, the
military judge omitted any reference to divers occasions.
Furthermore, while the providence inquiry and stipulation of
fact allow us to conclude that the appellant wrongfully
possessed each substance during the period alleged, neither
provides a factual basis to find that he did so on divers
occasions. Accordingly, the findings of guilty to
Specifications 3 and 4 under Charge III are affirmed, except for
the words "on diverse occasions." The findings of guilty to the
excepted words are set aside. The remaining findings of guilty
are affirmed. United States v. Care, 40 C.M.R. 247 (C.M.A.
1969); RULE FOR COURTS-MARTIAL 910, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.).

     As a result of our action on the findings, we have
reassessed the sentence in accordance with the principles
contained in United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006). We are satisfied that, absent the excepted language, the
sentence would not have been any less than that adjudged by the
military judge and approved by the CA.

        The sentence as approved by the CA is affirmed.

                                         For the Court



                                         R.H. TROIDL
                                         Clerk of Court

1
    Specifications 3 and 4 under Charge III
                                        2
