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

                               Before
           J. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     THOR Z. WATTS
  NAVAL AIRCREWMAN OPERATOR SECOND CLASS (E-5), U.S. NAVY

                            NMCCA 201400128
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 25 November 2013.
Military Judge: CDR Lewis T. Booker, Jr., JAGC, USN.
Convening Authority: Commanding Officer, Patrol Squadron
FOUR SIX, Oak Harbor, WA.
Staff Judge Advocate's Recommendation: LCDR D.E. Reike,
JAGC, USN.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: Capt Stacy M. Allen, USMC; LT Ann E. Dingle,
JAGC, USN.

                              22 July 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 military judge, sitting as a special court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of assault consummated by a battery, one
specification of unlawfully carrying a concealed weapon, one
specification of reckless endangerment, and one specification of
drunk and disorderly conduct, in violation of Articles 128 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934.
The military judge sentenced the appellant to confinement for 10
months, forfeiture of $1,000.00 pay per month for 10 months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged and,
except for that part of the sentence extending to a bad-conduct
discharge, ordered it executed. Pursuant to a pretrial
agreement, the CA suspended all confinement in excess of 90 days
and the bad-conduct discharge.

     The appellant’s sole assignment of error claims that the
bad-conduct discharge is inappropriate given the appellant’s two
attempts to withdraw from the incident before it escalated, and
his record of performance and overall character. We disagree.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the 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 appellant, despite lacking a concealed-carry permit,
attended a party onboard base housing with a loaded .45 semi-
automatic handgun hidden on his person. The appellant then
became intoxicated and brandished the weapon.

     After other guests learned of the appellant’s handgun,
Naval Aircrewman Operator Third Class (AWO3) K, confronted the
appellant, seized the handgun from him and emptied the weapon’s
magazine onto the floorboards of the appellant’s truck. An
argument ensued, with the appellant seeking to reclaim his
pistol. When AWO3 M confronted the appellant in an attempt to
calm the situation, the appellant punched AWO3 M in the face.

     Later that evening the appellant recovered his weapon and
went to his truck, where he started retrieving the loose rounds.
At this point he was confronted by Sergeant (Sgt) L, who
questioned why the appellant was there with a handgun. During
this questioning, Sgt L observed the appellant pull the slide
back on the weapon and insert a round into the chamber. Fearing

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for his and others’ safety, Sgt L repeatedly punched the
appellant in an attempt to knock him unconscious. As this
occurred, another Sailor was able to overcome the appellant’s
continued resistance and wrest the loaded weapon from his hand.

     At trial, the appellant presented extensive evidence of a
successful enlistment with remarkably rapid advancement.
Witnesses and letters from friends and family painted a picture
of a professional, mature, focused young man with extensive
knowledge of proper firearms safety.

                    Sentence Appropriateness

     In accordance with Article 66(c), UCMJ, a military 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)).

     The appellant argues that a bad-conduct discharge is an
inappropriate punishment due to the appellant’s history of
performance and demonstrated good military character, and the
fact the appellant twice attempted to leave the scene before
matters escalated. The appellant claims these facts, compared
to the stigma and personal burden that accompanies a punitive
discharge, make a bad-conduct discharge inappropriately severe
in his case. We disagree.

     After de novo review of the entire record, we find that the
sentence is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. In addition
to the serious nature of the offenses, we carefully considered
his character and performance.

     While the appellant’s otherwise successful career is
noteworthy, and his decision to attempt to leave the gathering
was likely the right one, they do not outweigh the serious

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nature of his misconduct. First, despite extensive weapons
experience and knowledge of proper firearm safety, he chose to
unlawfully carry a loaded handgun to a public gathering at which
he drank heavily and then brandished the weapon. When
confronted, he responded by punching a fellow Sailor in the
face. Second, even accepting the appellant’s claim that he was
attempting to lock the weapon in his truck and leave the scene
when he was confronted by Sgt L, this in no way excuses or
mitigates his decision to load a round into the weapon’s
chamber, thereby recklessly endangering Sgt L’s life.

     Considering the entire record, we conclude that granting
sentence relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.

                           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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