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

                                Before
           F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       DENNIS L. JOHNSON II
                 AIRMAN APPRENTICE (E-2), U.S. NAVY

                           NMCCA 201400431
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 14 August 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: CDR R.D. Evans, Jr., JAGC, USN.

                             14 April 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 general court-martial,
convicted the appellant, pursuant to his pleas, of two
specifications of sexual assault of a child, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b. The military judge sentenced the appellant to
confinement for 15 months, reduction to pay grade E-1,
forfeiture of all pay and allowances, and a bad-conduct
discharge. The convening authority (CA) approved only so much
of the sentence as provides for the reduction to pay grade E-1,
confinement for 15 months, and a bad-conduct discharge.
Suspending all confinement in excess of 12 months pursuant to a
pretrial agreement, the CA ordered the sentence, except for the
bad-conduct discharge, executed.

     On appeal, the appellant claims that a sentence including a
bad-conduct discharge is inappropriately severe.

     After carefully considering the record of trial and the
submissions 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 was committed. Arts. 59(a) and 66(c), UCMJ.

                           Background

     The nineteen-year-old appellant befriended a young female,
RH, through social media. After communicating electronically
for two weeks, during which the appellant became aware that RH
was only 14, they arranged to meet. The appellant picked up RH
from her aunt and uncle’s home with the aim of delivering her to
school. Once in the appellant’s car, RH indicated she did not
wish to go to school. The pair instead went to the mall and a
movie. When RH later voiced a desire not to go home, the
appellant took her to a friend’s apartment where they spent the
night. Over the next several days, the appellant and RH engaged
in oral sodomy and sexual intercourse.

     During this time, RH’s aunt and uncle, who had custody of
her, were desperately trying to locate RH. They were able to
identify the appellant after reviewing RH’s phone and tablet
computer. When the uncle texted the appellant, the latter said
he had only spoken with her once and had never met her. The
uncle asked the appellant, were he to see RH, to let her know
her family was looking for her and was very concerned. The
uncle feared his niece was either raped or dead. The appellant
did not contact RH’s family after this initial exchange of
texts. RH was located after further analysis of her recent
contacts on social media indicated the appellant, a Sailor, was
the person with whom she likely was staying. Additional facts
necessary to address the assignment of error will be provided
below.




                                2
                    Sentence Appropriateness

     The appellant argues that a bad-conduct discharge was
excessive and inappropriate given the facts of his case. We
disagree. In accordance with Article 66(c), UCMJ, a Court of
Criminal Appeals “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, should be approved.” 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
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)). While this court has a great
deal of discretion in determining whether a particular sentence
is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999).

     The maximum sentence applicable to the offenses to which
the appellant pleaded guilty was confinement for 60 years,
forfeiture of all pay and allowances, reduction to pay grade
E-1, and a dishonorable discharge. The appellant knew RH was
14. Despite this, he aided her in her efforts to skip school
and remain away from her home, and engaged in sexual activity
with her on two occasions. We find his actions were squarely
within the conduct proscribed by the statute, and reject any
claim that his misconduct was any less serious than the range of
permissible punishments indicates.

     The appellant urges this court to focus on his personal
circumstances. At the time of the charged offenses, he was only
nine months removed from high school, and had been in the Navy
for a short time. Several of the appellant’s family members and
a supervisor testified to his relative immaturity, portraying
him as “a good kid [but] young for his age” 1 and “19 . . . going
on about 15 or 16 . . . from a maturity aspect.” 2 In addition to
the present court-martial, he also now has a civilian conviction
for a related offense of contributing to the delinquency of a
minor. He will be required to register as a sex offender when
he returns to his home of record. The appellant argues that
1
    Record at 76.
2
    Id. at 82.
                                3
these facts, combined with the remainder of his approved
sentence, make a punitive discharge inappropriately severe in
his case. We disagree. To the extent these facts may militate
towards a sentence at the lower end of the range of permissible
punishments, we find they are sufficiently acknowledged in the
relatively lenient sentence the CA approved.

     After review of the entire record, we find that the
sentence is appropriate for this offender and his offenses. To
grant sentence relief at this point would be to engage in
clemency, a prerogative reserved for the convening authority.
Healy, 26 M.J. at 394.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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