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

                              No. 201600063
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                        ANDREW R. HARDEN
                   Sergeant (E-5), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel David M. Jones, USMC.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                              USN.
           For Appellee: Major Corey A. Carver, USMC;
            Lieutenant James M. Belforti, JAG C, USN.

                          _________________________

                         Decided 6 December 2016
                          _________________________

Before M ARKS , F ULTON , and G ROHARING , 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 special court-martial convicted the appellant,
in accordance with his pleas, of two specifications of failure to obey a lawful
general order and three specifications of failure to obey another lawful order
in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892
(2012). The military judge sentenced appellant to be reduced to paygrade E-1,
34 days’ confinement, and a bad-conduct discharge.
                      United States v. Harden No. 201600063


    The appellant raises three assignments of error: First, he alleges that the
government violated the terms of the pretrial agreement (PTA) by objecting
to evidence in extenuation and mitigation, and that his pleas were therefore
improvident. Second, he contends that the lawful general order prohibiting
Marine recruiters from having intimate relationships with high school
students and recruits violates the Equal Protection Clause of the Fifth
Amendment to the Constitution. Finally, he alleges that the convening
authority (CA) erred in proceeding to court-martial, as both of the potential
recruits named in the specifications requested he not be court-martialed. The
second and third assignments of error are raised personally by the appellant.1
We find no error and affirm.
                                   I. BACKGROUND
    In October 2014, the appellant met two female high school students, MK
and NS, while serving as a Marine Corps recruiter. The appellant initiated
sexually explicit discussions with both students and solicited a sexually
suggestive photograph from MK. Ultimately, the appellant had sexual
intercourse with both NS and MK.
    The appellant’s command learned of his misconduct and began an
investigation. On 12 December 2014, the appellant’s commanding officer
issued a military protective order (MPO) prohibiting the appellant from
contacting any Marine “poolees” (recruited individuals not yet on active
duty), applicants, high school students, and anyone related to recruiting or to
the investigation into his misconduct. In spite of the order, the appellant
continued to contact both MK and NS. The appellant sent Facebook messages
and text messages to MK, and letters to NK, who by then was attending Air
Force basic training in Lackland, Texas.
   On 9 April 2015, the appellant’s commanding officer issued another MPO,
specifically prohibiting the appellant from contacting NS and ordering him to
stay at least 500 feet away from her home. The appellant violated this order
by visiting NS in Lackland, Texas.
    The appellant entered into a PTA with the CA in which he agree to plead
guilty to two specifications alleging that he failed to obey a lawful general
order prohibiting inappropriate social and sexual relationships between
recruiters and potential recruits and three specifications alleging that he
violated military protective orders issued after the command began to
investigate his misconduct. In one of the specially negotiated terms of the
pretrial agreement, the government agreed not to object to “the admission



   1   See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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into evidence of written statements in extenuation and mitigation from
witnesses.”2
      At the presentencing proceeding, the appellant unsuccessfully sought to
introduce two emails from his recruiting station’s commanding officer, Major
H. In the first email, sent to the CA before the appellant’s case was referred
to trial, Major H opined that “[a]n Other Than Honorable (OTH) Discharge,
although still damaging, will facilitate employment more than a Bad Conduct
Discharge (BCD). I would technically prefer a Separation in Lieu of Trial
(SILT) in order to get [the appellant] out of the command as soon as possible .
. . .”3
   In the second email,4 Major H seems to explain to two other officers that
the appellant had been following the advice of counsel when he had
demanded that his command return his cell phone to him, claiming that his
constitutional rights had been violated. Major H’s email seems to suggest
that the appellant had been poorly served by this legal advice, and that the
appellant would not have made such a demand absent such legal advice.
   The trial counsel objected to the admission of the both emails, arguing
that they were not relevant and not proper extenuation or mitigation
evidence. The military judge sustained the objections.
                                      II. DISCUSSION
    In his first assignment of error, the appellant alleges that the
government’s objection to the two emails violated their agreement not to
object to written statements from witnesses in extenuation and mitigation in
the PTA. We disagree.
    We review issues involving the interpretation of a PTA de novo. United
States v. Smead, 68 M.J. 44, 59 (C.A.A.F 2009). We will not overturn a
military judge’s interpretation of a PTA unless the appellant shows (1) the
term of the PTA in question was material to his decision to plead guilty, and
(2) the circumstances in the case amount to government noncompliance. Id.
    The government concedes their agreement not to object to written
statements in extenuation and mitigation was material to the appellant’s
decision to plead guilty. We must therefore decide whether the government’s
objection to the two emails violated this term. We find that it does not.
   Matters in extenuation serve “to explain the circumstances surrounding
the commission of an offense, including those reasons for committing the


   2   Appellate Exhibit VIII at 3.
   3   Defense Exhibit D (for identification) at 2.
   4   Id. at 1.

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offense which do not constitute a legal justification or excuse.” RULE FOR
COURTS-MARTIAL 1001(c)(1)(A), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). Matters in mitigation serve “to lessen the punishment to
be adjudged by the court-martial, or to furnish grounds for a recommendation
of clemency.” Id. at 1001(c)(1)(B.). Matters in mitigation may include
“particular acts of good conduct or bravery and evidence of the reputation or
record of the accused in the service for efficiency, fidelity, subordination,
temperance, courage, or any other trait that is desirable in a servicemember.”
Id. Other typical examples of evidence in extenuation and mitigation include
things such as an appellant’s mental health history, antisocial traits, work
and school performance, history of physical or sexual abuse, diminished
capacity, and socio-economic status. See e.g., United States v. Akbar, 74 M.J.
364, 375-76 (C.A.A.F. 2015); United States v. Tangpuz, 5 M.J. 426, 427, 430
(C.M.A. 1978).
    Neither email amounts to evidence in extenuation or mitigation. In
United States v. Britt, 44 M.J. 731 (A.F. Ct. Crim. App. 1996), aff’d, 48 M.J.
233 (C.A.A.F. 1998), that appellant argued that a military judge erred by
preventing him from informing the court during his unsworn statement that
if he did not receive a punitive discharge, he would be administratively
separated. The Air Force Court of Criminal Appeals, however, found that
such a statement qualified as neither extenuating nor mitigating evidence:
“Nothing about the speculative possibility of an administrative discharge
explains the circumstances of appellant’s crime (extenuation), nor is it a
matter going to the peculiar fidelity, valor, or character of his service
(mitigation).” Id. at 735.
    The two emails in question here are, like the expectation of
administrative separation, not relevant to considerations of extenuation or
mitigation. Neither email provides any information about the circumstances
of the appellant’s offenses or the reasons he committed them. They do not
provide any information about the appellant that might tend to reduce the
adjudged sentence, such as particular acts of good conduct or bravery, or
evidence his reputation or record of efficiency, fidelity, subordination,
temperance, courage, or other desirable traits. We find that information
about legal advice the appellant received and information about the internal
deliberative process that resulted in the referral are not relevant to
considerations of extenuation or mitigation. Therefore the trial counsel did
not breach the pretrial agreement by objecting to the admission of the two
emails.
   We have considered the errors raised personally by the accused in the
second and third assignments of error and find them to be without merit. See
United States v. Clifton, 35 M.J. 79 (C.A.A.F. 1992).


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                          III. CONCLUSION
The findings and sentence are affirmed.
                           For the Court




                           R.H. TROIDL
                           Clerk of Court




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