              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                              Before
          M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER
                     Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         JOHN T. TAYLOR
                YEOMAN SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201300195
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 6 February 2013.
Military Judge: CDR Marcus Fulton, JAGC, USN.
Convening Authority: Commander, Navy Region Hawaii, Pearl
Harbor, HI.
Staff Judge Advocate's Recommendation: LCDR K.A. Elkins,
JAGC, USN.
For Appellant: LT David C. Dziengowski, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.

                              6 March 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

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 one
specification of conspiracy, one specification of dereliction of
duty, 10 specifications of violating a general regulation, and
six specifications of larceny, in violation of Articles 80, 92,
and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880,
892, and 921. The military judge sentenced the appellant to
confinement for 325 days, total forfeiture of pay and
allowances, a fine of $17,000.00, reduction to pay grade E-1,
and a bad-conduct discharge. Pursuant to the pretrial
agreement, the convening authority (CA) approved the sentence,
but suspended all confinement in excess of four months.

     The appellant raises three assignments of error (AOEs):
(1) that the appellant is entitled to new post-trial processing
because of defects in the staff judge advocate’s recommendation
(SJAR) and CA’s action; (2) that the sentence is disparately
severe relative to that of his co-conspirator; and, (3) that the
court-martial lacked jurisdiction over the appellant.1

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied 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.

                          Post-Trial Processing

      In his first assignment of error, the appellant contends
that post-trial processing in his case was flawed in two
regards. First, he contends that the staff judge advocate (SJA)
erred by failing to comment on his trial defense counsel’s
allegation of legal error in his post-trial submission of 22
April 2013. Upon our review of that submission, we readily
conclude that trial defense counsel alleged no legal errors
whatsoever. Instead, he made an equitable argument that the
appellant should not be punished more harshly than his co-
conspirator, who was senior to him in pay grade, and requested
clemency based on principles of fairness. We conclude that the
SJA did not err in that the post-trial submission contained no
“allegation of legal error” within the meaning of RULE FOR COURTS-
MARTIAL 1106(d)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

     Second, the appellant correctly notes that neither the SJAR
nor the CA’s action includes reference to the companion case of
his co-conspirator, Senior Chief Yeoman (YNCS) Glover. The
service requirement to note companion cases2 ensures that the CA
makes an informed decision when taking his action. That purpose
was clearly met here. The CA in his action of 15 May 2013

1
  This third AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).
2
  This requirement is imposed by the Manual of the Judge Advocate General,
Judge Advocate General Instruction 5800.7F § 0151a(5) (26 June 2012).

                                      2
explicitly stated that he considered the clemency request of 22
April 2013, which was almost entirely devoted to the inequities
between the two Sailors’ sentences. Moreover, the record
reveals that the CA took his action in the two companion cases
on the same day. Contrary to the appellant’s assertion, we are
convinced that the CA considered the companion case prior to
finalizing his action. When the appellant seeks relief for
post-trial review errors, he must make some colorable showing of
possible prejudice. United States v. Danley, 70 M.J. 556, 559
(N.M.Ct.Crim.App. 2011). The appellant here fails to carry his
burden.

                      Disparity of Sentence

     The appellant also alleges that his sentence is disparately
severe from that of his co-conspirator, YNCS Glover, who was
convicted pursuant to his pleas of similar charges at a general
court-martial and sentenced by a military judge to confinement
for 365 days, total forfeitures, reduction to pay grade E-3, a
fine of $11,000, and a bad-conduct discharge. We disagree.

     The appropriateness of a sentence generally should be
determined without reference or comparison to sentences in other
cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985). We are not required to engage in comparison of specific
cases “‘except in those rare instances in which sentence
appropriateness can be fairly determined only by reference to
disparate sentences adjudged in closely related cases.’” United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
Ballard, 20 M.J. at 283). The burden is upon the appellant to
make that showing. Id. If the appellant satisfies his burden,
the Government must then establish a rational basis for the
disparity. Id.

     We readily find that YNCS Glover’s case is closely related
to the appellant's case. However, based upon our review of the
record, we find that the appellant has not met his burden of
demonstrating that his sentence is highly disparate when
compared with the sentence of YNCS Glover.
     Sentence comparison does not require sentence equation.
United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001)
(citing Ballard, 20 M.J. at 282 and United States v. Snelling,
14 M.J. 267 (C.M.A. 1982)). By exercising our authority to
determine sentence appropriateness under Article 66(c), UCMJ,
the goal is “to attain relative uniformity rather than an
arithmetically averaged sentence.” Lacy, 50 M.J. at 288


                                3
(quoting United States v. Olinger, 12 M.J. 458, 461 (C.M.A.
1982)).

     Although the record does not reflect whether the same judge
presided at both trials, the sentences imposed are in fact quite
similar. The appellant highlights the difference in the amount
of the fine imposed: he was fined $17,000, which appears to
reflect approximately the total value of his unjust enrichment,
while YNCS Glover was fined $11,000, which appears to reflect
50% of his unjust enrichment. While it is true that the
appellant’s sentence was more severe than YNCS Glover’s in terms
of the fine, YNCS Glover’s sentence was slightly more severe
than the appellant’s in terms of confinement.

     Moreover, the test in these cases is not limited to a
narrow comparison of the relative numerical values of the
sentences at issue, but also may include consideration of the
disparity in relation to the potential maximum punishment.
Lacy, 50 M.J. at 289. The appellant faced a maximum punishment
that included 78 years of confinement and a dishonorable
discharge, and his co-conspirator faced a similar maximum
sentence. Against that backdrop, we do not consider the
differences between the two sentences to be “highly disparate.”
As the Court of Appeals for the Armed Forces has observed, “the
military system must be prepared to accept some disparity in the
sentencing of codefendants, provided each military accused is
sentenced as an individual.” Durant, 55 M.J. at 261 (citations
omitted).

     Even if we had found the sentences to be “highly
disparate,” considering the facts and circumstances of each
case, we would also find that a rational basis exists for the
disparity. United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F.
2001) (citing Lacy, 50 M.J. at 288). Unlike the appellant, who
was separating from the service when his fraud was discovered,
YNCS Glover was a retirement-eligible Sailor: the long term
financial impact of his adjudged bad-conduct discharge dwarfed
the impact of any fine in his case.

    The appellant has not met his burden of showing that his
sentence is highly disparate to the sentence in the companion
case, and the record provides cogent reasons for any disparity
that does exist. We conclude that the sentence approved by the
CA is appropriate for this offender and his offenses, and
decline to grant relief. United States v. Baier, 60 M.J. 382
(C.A.A.F. 2005); United States v. Healy, 26 M.J. 394 (C.M.A.
1988); Snelling, 14 M.J. at 267.


                                4
     Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), the appellant asserts that the court martial lacked
personal jurisdiction over him. After carefully reviewing the
pleadings and the record of trial, to include the military
judge’s detailed findings of fact and ruling,3 we conclude that
the assigned error is without merit.

                              Conclusion

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


                                   For the Court




                                   R.H. TROIDL
                                   Clerk of Court




3
    Appellate Exhibit XXVI.

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