UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, TELLITOCCI, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                     Private First Class KODY D. SCHENK
                         United States Army, Appellant

                                  ARMY 20120122

                     Headquarters, 82nd Airborne Division
                      Reynold P. Masterton, Military Judge
    Colonel Lorianne M. Campanella, Staff Judge Advocate (pretrial advice and
                                recommendation)
     Lieutenant Colonel John N. Ohlweiler, Staff Judge Advocate (addendum)


For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Rachel T. Brant, JA (on brief).


                                     31 July 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiracy to malinger, willful destruction of military
property, wrongful use of hashish, malingering by feigning injury, and reckless
endangerment, in violation of Articles 81, 108, 112a, 115, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 908, 912a, 915, and 934 [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
four years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
Pursuant to a pretrial agreement, the convening authority approved only so much of
SCHENK—ARMY 20120122

the sentence as provided for a bad-conduct discharge, confinement for thirty-nine
months 1, forfeiture of all pay and allowances, and reduction to the grade of E-1.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion but no relief.

                                     Background

       Appellant deployed to Afghanistan in March of 2011, where he served as an
infantryman for Combined Task Force Spartan, operating from Forward Operating
Base (FOB) Pasab. During the spring of 2011, appellant began to use hashish on a
regular basis, and he frequently smoked the drug with another soldier in his unit,
Specialist (SPC) Korey Huff. Other soldiers in appellant’s unit discovered
marijuana in his living area inside a tent. Specialist Huff had also been “found with
drugs.” Fearing the potential fallout from their misconduct, they discussed how they
could possibly “get out of trouble for drug use.” Specialist Huff initially proposed
that they detonate a grenade inside FOB Pasab, injure themselves, and presumably
avoid more severe negative consequences for their illicit drug use. Appellant agreed
to a modified plan of detonating a grenade while on patrol off the FOB and then
feigning injury. Then, within an hour of this agreement, while still on FOB Pasab,
SPC Huff decided to accelerate the scheme, announced “I am doing this now,”
pulled the safety clip and pin from a grenade, but became squeamish and told
appellant “I cannot do this,” and handed the grenade to appellant with the safety
spoon still attached.

       Appellant dropped the grenade in a clearing next to his platoon’s command
post and adjacent to a walkway and sought cover behind a concrete barrier with SPC
Huff. After detonation, appellant dropped to the ground and feigned concussive
injuries to include unconsciousness and hearing loss. Appellant fully and freely
admitted that although SPC Huff may have deviated from some of the specifics of
the agreed upon plan, appellant had already conspired to detonate a grenade and then
malinger. Appellant further admitted he never withdrew from that conspiracy and he
willfully chose to commit the charged overt act of throwing the grenade although he
could have re-secured the explosive.

        The ensuing investigation and forensic analysis of evidence found at the blast
site, along with the suspicious and inconsistent nature of their purported injuries all

1
  A pretrial agreement limited appellant’s sentence to confinement to forty months.
However, in his addendum, the staff judge advocate recommended the convening
authority approve only thirty-nine months of confinement because he “recognize[d]
that post-trial processing could be an issue.”




                                           2
SCHENK—ARMY 20120122

pointed to appellant and SPC Huff as being the culprits responsible for the
explosion. Ultimately, both soldiers were charged with various offenses related to
their misconduct, including wrongful use of hashish, willful destruction of military
property (the grenade), conspiracy to commit malingering, and malingering.
Specialist Huff was also charged with the additional drug crimes of distribution of
hashish and possession of heroin. Whereas appellant pleaded guilty to and was
convicted of both his use of hashish as well as his crimes surrounding the detonation
of the grenade and his feigned injury, SPC Huff only pleaded guilty to and was
convicted of his drug-related crimes with the government moving to dismiss all of
his crimes surrounding his conspiracy with the appellant. 2

       Specialist Huff went to trial and was sentenced on 11 January 2012 for his
drug-related crimes to reduction to a bad-conduct discharge, confinement for three
years, and reduction to the grade of E-1. 3 The next day, on 12 January 2012,
appellant entered into a pretrial agreement with the convening authority, wherein
appellant agreed to plead guilty to all of his crimes involving the grenade detonation
and malingering along with his drug-related crime in exchange for a confinement cap
of forty months. At trial, on 2 February 2012, appellant was sentenced to a bad-
conduct discharge, confinement for four years, forfeiture of all pay and allowances,
and reduction to the grade of E-1.

      Appellant now claims his approved sentence of confinement for thirty-nine
months and a bad-conduct discharge is disproportionately severe when compared to
the punishment received by SPC Huff.

                                 Law and Discussion

       This court 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.” UCMJ art. 66(c). “Article
66(c)’s sentence appropriateness provision is a sweeping Congressional mandate to
ensure a fair and just punishment for every accused.” United States v. Baier, 60
M.J. 382, 384 (C.A.A.F. 2005) (internal quotation marks omitted). The Court of
2
  In SPC Huff’s case, pursuant to a government motion, the military judge dismissed
one specification of conspiracy to commit malingering, one specification of willful
destruction of military property (the grenade), one specification of malingering, one
specification of reckless endangerment, and one specification of self-injury without
intent to avoid service.
3
 In SPC Huff’s case, the convening authority approved only so much of the sentence
as provided for a bad-conduct discharge, confinement for eighteen months, and
reduction to the grade of E-1.




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SCHENK—ARMY 20120122

Appeals for the Armed Forces (CAAF) has stressed the importance of this court’s
role in evaluating sentence appropriateness to ensure “uniformity and
evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001). We make such determinations in light of the character of the
offender, the nature and seriousness of his offenses, and the entire record of trial.
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citing United States v.
Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81 (1959)). We are not
required to “engage in sentence comparison with 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 United States v. Ballard, 20 M.J.
282, 283 (C.M.A. 1985)).

       At this court, appellant bears the burden of demonstrating that SPC Huff’s
case is “closely related” to his case and that their sentences are “highly disparate.”
Lacy, 50 M.J. at 288. If successful, “then the [g]overnment must show that there is a
rational basis for the disparity.” Id.; see also United States v. Durant, 55 M.J. 258,
260 (C.A.A.F. 2001). At first blush, what appellant asks this court to do is a fairly
routine comparison between what would seem like closely related cases. However,
under the circumstances found here, the required analysis is more nuanced than a
simple comparison between the adjudged sentences of two co-actors convicted of
similar or related crimes.

      What may have started out as closely related cases, did not end up that way.
The sentence adjudged against SPC Huff was solely for his drug-related crimes. In
contrast, the gravamen of appellant’s misconduct for which he was convicted and
punished was his conspiracy to malinger and effort to accomplish such by recklessly
and dangerously detonating a grenade. Here, comparison of sentences rendered for
such vastly different behavior is neither required nor prudent.

       Instead, the true crux of appellant’s complaint is that the government chose to
dismiss certain offenses in SPC Huff’s case, but declined to do the same in
appellant’s case where appellant specifically agreed to plead guilty to those same
offenses. Simply put, this is more a comparison of negotiated dispositions than of
adjudged sentences. See United States v. Noble, 50 M.J. 293, 294-95 (C.A.A.F.
1999).

       However, appellant has not claimed unlawful, invidious, or impermissible
discrimination by the convening authority. See Durant, 55 M.J. 258 at 261.
Convening authorities have “broad discretion” in determining whom to prosecute
and for what crimes. See Ball v. United States, 470 U.S. 856, 859 (1985); United
States v. Brown, 40 M.J. 625, 629 (N.M.C.M.R. 1994); United States v. Kelly, 40
M.J. 558, 570 (N.M.C.M.R. 1994). Unless presented with evidence to the contrary,




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SCHENK—ARMY 20120122

this court presumes convening authorities act without bias. To raise the issue of
selective or discriminatory prosecution:

             [An appellant] bears the heavy burden of establishing, at
             least prima facie: (1) that, while others similarly situated
             have not generally been proceeded against because of
             conduct of the type forming the basis of the charge against
             him, he has been singled out for prosecution, and (2) that
             the Government's discriminatory selection of him for
             prosecution has been invidious or in bad faith, i.e., based
             upon such impermissible considerations as race, religion,
             or the desire to prevent his exercise of constitutional
             rights.

United States v. Garwood, 20 M.J. 148, 154 (C.M.A. 1985) (quoting United States v.
Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)). An appellant must show more than a
mere possibility of selective prosecution; he must show discriminatory intent. See
United States v. Brown, 41 M.J. 504, 511 (Army Ct. Crim. App. 1994). Absent this
showing, here we find no abuse of governmental discretion or illegal discrimination.

       Finally, pursuant to Article 66, UCMJ, we turn to the issue of whether
appellant’s sentence is appropriate. In light of the “character of [appellant], the
nature and seriousness of his offenses, and the entire record of trial,” we find his
sentence appropriate. United States v. Pleasant, 71 M.J. 709, 718 (Army Ct. Crim.
App. 2012).

                                     Conclusion

      On consideration of the entire record and the submissions of the parties, the
findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge TELLITOCCI concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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