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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         DANIEL W. EADS
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                          NMCCA 201400226
                    GENERAL COURT-MARTIAL

Sentence Adjudged: 22 Feb 2014.
Military Judge: Col J.K. Carberry, USMC.
Convening Authority: Commanding General, 1st Marine
Aircraft Wing, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol J.M. Hackel,
USMC.
For Appellant: CAPT Bree Ermentrout, JAGC, USN.
For Appellee: CAPT Diane Karr, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                           25 November 2014

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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 general court-martial, consisting of military judge
alone, convicted the appellant, pursuant to his pleas, of one
specification of knowingly possessing child pornography in
violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934. The appellant was sentenced to ten months’
confinement, reduction to pay grade E-1, total forfeitures, and
a dishonorable discharge.       The convening authority approved the
sentence as adjudged.
                                 Background

     The appellant admitted that he utilized peer-to-peer
software to locate and download three videos of child
pornography. Once viewed, he deleted the three videos. The
appellant pleaded guilty to a single count of knowingly
possessing child pornography, in violation of clauses 1, 2, and
3 of Article 134. 1
                            Providence of Plea
     Although not raised as error, we note a deficiency in the
appellant’s plea to the offense. In the stipulation of fact,
the appellant claimed that his conduct was prejudicial to good
order and discipline because “possessing these files and being
caught by the authorities caused him to be removed from his
military duties and resulted in a disruption to his unit’s
ability to operate and accomplish the mission.” Prosecution
Exhibit 1 at 3. However, during the Care inquiry, the military
judge asked the appellant why he thought his misconduct was
prejudicial to good order and discipline and the following
colloquy ensued:
     ACC: Good order and discipline – in the Marine Corps,
     we have, like I said, a higher standard. You know, we
     have a lot of rules to follow that a lot of people
     don’t follow out in the civilian world. And Marines
     are just supposed to carry themselves higher, and it
     brings discredit upon us.
     MJ: Do you believe it resulted in disruption to your
     unit’s ability to operate and accomplish its mission?
     ACC: I do, sir. It took me away from my job, and it
     puts a hurt on your peers when you work in the aircraft
     community.
     MJ:    What is your MOS?
     ACC:    I’m a 6113, sir, aircraft mechanic for the 53s.


1
  The specification alleged, in relevant part: “did . . . knowingly possess a
laptop computer containing visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(A), which conduct
was of a nature to bring discredit upon the armed forces and prejudicial to
good order and discipline.”
                                      2
     MJ: And as a result of these allegations, were you removed
     from your military duties?
     ACC:   Not at the time sir. 2
     MJ:    Your mechanic duties?
     ACC: No sir, I was still a mechanic...I had to take off to
     go see my defense counsel and my attorney downtown a lot. I
     took off a lot of work seeing, you know, lawyers and ---
     MJ: So you believe it caused a disruption to the
     functioning of your unit?
     ACC:    Yes, sir, it did.
     MJ:    Do counsel for either side desire further inquiry?
Record at 25-26.
     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Mitchell, 66
M.J. 176, 178 (C.A.A.F. 2008). A military judge abuses this
discretion when accepting a plea if he does not ensure the
accused provides an adequate factual basis to support the plea
during the providence inquiry. See United States v. Care, 40
C.M.R. 247 (C.M.A. 1969). We will not reject the plea unless
there is “a ‘substantial basis’ in law and fact for questioning
the guilty plea.” United States v. Glenn, 66 M.J. 64, 66
(C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).
     Article 134, UCMJ, criminalizes “all disorders and neglects
to the prejudice of good order and discipline in the armed
forces.” Conduct that is prejudicial to good order and discipline
is “conduct that causes a reasonably direct and palpable injury to
good order and discipline.” United States v. Cendejas, 62 M.J.
334, 340 (C.A.A.F. 2006) (citations omitted). The acts in
question must be “directly prejudicial to good order and
discipline,” and not “prejudicial only in a remote or indirect
sense.” Manual for Courts-Martial, United States (2012 ed.),
Part IV, ¶ 60c(2)(a).
     In PE 1, the appellant claims that he was “removed from his
military duties” because of the allegations. However, the Care
inquiry made it evident that the appellant had not been
“removed” but simply utilized parts of the work day to meet with

2
  Other than PE 1, there is no evidence in the record that the appellant was
ever “removed” from his duties.
                                      3
his attorneys. Under those circumstances, the record is
insufficient to establish a “direct and palpable” injury to good
order and discipline. We therefore find a substantial basis in
law and fact to question the providence of the appellant’s plea
as it relates to Clause 1 of Article 134, UCMJ, and will dismiss
the relevant language as to that offense.
                    Sentence Appropriateness

     In his sole assignment of error, the appellant asserts that
his sentence was inappropriately severe. While a court-martial
is free to impose any lawful sentence that it determines
appropriate, United States v. Turner, 44 C.M.R. 215, 217 (C.M.A.
1964), we “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find]
correct in law and fact and determine[], on the basis of the
entire record, should be approved.” Art. 66(c), UCMJ. We
assess sentence appropriateness through “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). While we
have a great deal of discretion in determining whether a
particular sentence is appropriate, we are not authorized to
engage in exercises of clemency. See United States v. Lacy, 50
M.J. 286 (C.A.A.F. 1999).
     After review of the entire record of trial, we find that
the sentence is appropriate for this offender and his offense.
Furthermore, we conclude that granting sentence relief at this
point would be to engage in clemency, a prerogative reserved for
the convening authority. United States v. Healy, 26 M.J. 394,
395-96 (C.M.A. 1988).
                           Conclusion
     Regarding the Specification, the language “and prejudicial
to good order and discipline” is dismissed. The findings of
guilty on the Charge and specification as modified are affirmed.
Reassessing the sentence on the basis of the affirmed findings,
the entire record, and in accordance with the principles
articulated in United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013), the sentence as approved by the convening
authority is affirmed.
                                For the Court

                                R.H. TROIDL
                                Clerk of Court
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