         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600308
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.

                         LUKAS COXBORBA
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

          Military Judge: Major Forrest W. Hoover, USMC.
  Convening Authority: Commanding General, 2d Marine Division,
                        Camp Lejeune, NC.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
                   Winston G. McMillian, USMC.
     For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
     For Appellee: Commander Joseph E. Stolasz, JAGC, USN;
              Lieutenant Jetti L. Gibson, JAGC, USN .
                      _________________________

                          Decided 27 July 2017
                         _________________________

Before G LASER -A LLEN , M ARKS , AND R UGH , Appellate Military Judges
                         _________________________

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 general court-martial, convicted the
appellant, pursuant to his pleas, of assault upon a person in the execution of
law enforcement duties, negligent discharge of a firearm, and reckless
endangerment, in violation of Articles 128 and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 928 and 934 (2012). The military judge
                    United States v. Coxborba, No. 201600308


sentenced the appellant to 18 months’ confinement, reduction to pay grade
E-1, and a bad-conduct discharge. The convening authority (CA) approved the
sentence as adjudged but, pursuant to a pretrial agreement, suspended
confinement in excess of 12 months. He then ordered the sentence, except for
the discharge, executed.
    In his sole assignment of error, the appellant contends that his sentence
of a bad-conduct discharge is inappropriately severe since his misconduct was
related to a suicide attempt. After careful consideration of the record of trial
and the pleadings of the parties, 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 occurred. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
    On 16 August 2015, the appellant and his wife got into a loud verbal
argument concerning her alleged infidelity during his recent deployment. The
police responded, and the appellant was removed from the home by his
platoon sergeant. After the appellant expressed suicidal ideations, his platoon
sergeant transported him to the Camp Lejeune Naval Hospital Emergency
Room (ER) for a mental health evaluation. After being evaluated, the
appellant was released under command supervision until his follow-up
appointment the next day. He was then transported to the command
barracks at Camp Lejeune.
    While at the barracks, the appellant got into an argument with the duty
noncommissioned officer and fled into the nearby woods. Police officers
responded to this incident and heard the appellant telling them to shoot him.
After the appellant was apprehended, a military police officer took him back
to the ER, where they met with his platoon sergeant and another command
representative, a sergeant.
    In the waiting area, the appellant was supervised by the military police
officer, the platoon sergeant, and the sergeant. Several other patients sat in
close proximity to the appellant waiting to be seen, including—directly across
from the appellant—an Army Sergeant First Class (SFC) (E-7) and her three-
year-old son. ER staff was on site, as well. The appellant suddenly
unholstered the military police officer’s pistol and pointed the gun at his own
head. Before the appellant could further act, the platoon sergeant, the
sergeant, the military police officer, and the Army SFC took the appellant to
the ground and retrieved the pistol. During the scuffle, the pistol discharged,
and a bullet lodged into a nearby wall. No one was injured. As the appellant
was subdued and the pistol was removed from his grip, he again made
several suicidal ideations.




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                                    II. DISCUSSION
   The appellant asserts that a bad-conduct discharge is inappropriately
severe since his misconduct was related to a suicide attempt. We disagree.
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “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 our “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) (citation and internal quotation marks omitted). Despite our significant
discretion in reviewing the appropriateness and severity of an adjudged
sentence, we may not engage in acts of clemency. United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010).
   While noting the appellant’s emotional distress, we find that his
unfortunate reaction to his wife’s alleged infidelity did not rise to a defense, a
matter conceded by the appellant during his plea. Additionally, we agree with
the military judge that his state of mind does little here to mitigate his
reckless disregard for the safety of others. The police officers and command
members were aware the appellant needed help and took appropriate steps to
provide him medical care. However, while in the ER waiting room, the
appellant not only removed the pistol from the military police officer’s holster
and ultimately fired a round, but also “flagged the crowd” in the process.1
    As a result of the appellant’s actions, everyone in the waiting area—
including the three-year-old child seated across from him—was put at
imminent risk of death or grievous bodily harm. Although no one was
physically harmed, the record demonstrates the event had significant and
lasting negative psychological effects on an ER clerk, on the Army SFC, and
on her three-year-old son.
    We have set aside a punitive discharge where otherwise meritorious
Marines with mental health issues engaged in self-destructive criminal
behavior, often manifesting in self-medication via illegal drug or excessive
alcohol use. United States v. Gober, No. 201100632, 2012 CCA LEXIS 759,
unpublished op. (N-M. Ct. Crim. App. 29 Mar 2012) (per curiam) (setting
aside the punitive discharge for a Marine with Major Depressive Disorder
and post-traumatic stress disorder (PTSD) convicted of illegal drug
possession and use, unauthorized absence (UA), and violating a lawful
general order); United States v. Smith, No. 200900239, 2009 CCA LEXIS 558


   1   Record at 64, 68; Prosecution Exhibit 1 at 5.


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                   United States v. Coxborba, No. 201600308


(N-M. Ct. Crim. App. 17 Dec 2009) (per curiam) (setting aside the punitive
discharge for a Marine with PTSD, traumatic brain injury (TBI), and suicidal
ideations convicted of illegal drug possession and use, UA, missing
movement, and violating a lawful general order).
   However, we have generally found a punitive discharge to be an
appropriate punishment where Marines with such issues engaged in
misconduct that put others at risk of harm or their criminal activity was
indirectly related to their mental health issues. United States v. Levrie, No.
201500375, 2017 CCA LEXIS 150 (N-M. Ct. Crim. App. 17 Mar 2017) (per
curiam) (Marine with PTSD and TBI convicted of joining a criminal
motorcycle gang, 10 specifications of drug offenses, and participating in the
assault of a fellow Marine); United States v. Lo, No. 201200401, 2013 CCA
LEXIS 172 (N-M. Ct. Crim. App. 26 Feb 2013) (per curiam) (Marine with
mental health issues convicted of cutting a fellow Marine with a knife).
    Considering the nature and seriousness of the appellant’s misconduct, the
lasting impact on his victims, and having weighed the appellant’s otherwise
honorable service and the evidence submitted in extenuation and mitigation,
we find that the sentence is appropriate for this offender and his offense.
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. Granting sentence relief at this point would
be to engage in clemency, a function reserved for the CA, and we decline to do
so. Healy, 26 M.J. at 395–96.
                              III. CONCLUSION
    The findings of guilty and the sentence as approved by the CA are
affirmed.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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