

   
   
   
   U.S. v. Noble



UNITED STATES, Appellee
v.
Alan L. NOBLE, Staff Sergeant
U.S. Marine Corps, Appellant
 
No. 98-0569
Crim. App. No. 95-0215
 
United States Court of Appeals for the Armed
Forces
Argued December 15, 1998
Decided May 12, 1999
 
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.
 
Counsel
For Appellant: Lieutenant
Dale O. Harris, JAGC, USNR (argued).
For Appellee: Major Clark
R. Fleming, USMC (argued); Colonel Kevin M. Sandkuhler, USMC,
and Commander Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: C. A. Price

 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted
by a general court-martial composed of officer and enlisted members of
disobeying his superior officer, adultery, and obstruction of justice (1
specification each). Consistent with his pleas, he was found guilty of
making a false official statement and violating a lawful general regulation
prohibiting fraternization (1 specification each). See Arts. 90,
92, 107, and 134, Uniform Code of Military Justice, 10 USC §§
890, 892, 907, and 934, respectively. Appellant was sentenced to a bad-conduct
discharge, confinement for 6 months, and reduction to the lowest enlisted
grade. The convening authority approved these results, and the Court of
Criminal Appeals affirmed in an unpublished opinion.
This Court granted review of the following
issue:



WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED BY CONSIDERING ALLEGED OFFENSES OF WHICH APPELLANT WAS ACQUITTED
AS "GOOD AND COGENT REASONS" FOR APPELLANTS RECEIPT OF CONFINEMENT AND
A BAD-CONDUCT DISCHARGE, WHERE APPELLANTS COACTORS WERE NEVER CHARGED
OR PUNISHED.



We hold that the Court of Criminal Appeals did
not err for the reasons set forth in this opinion.

I
The opinion of the Court of Criminal Appeals
sets forth the following factual background with respect to the relationship
between the activities of appellant and Staff Sergeant (SSgt)
M:



The appellant was a senior enlisted supervisor
in a mess hall. One of his friends, staff sergeant M, was a supervisor
in another mess hall on the installation. Two lower-ranking women Marine
cooks, both lance corporals who worked for the appellant, became overly
friendly with both staff sergeants and agreed to spend the night with them
at staff sergeant Ms off-base apartment. The appellant was married at
the time. Neither of the women Marines was married. We are unable to determine
from the information provided to us whether staff sergeant M was married
at the time. During the evening, both women were given alcoholic drinks.
Ultimately, the four paired off. Staff sergeant M had sexual intercourse
with one of the lance corporals and the appellant had sexual intercourse
with the other.[*] The
four spent the entire night at staff sergeant Ms apartment. About 2 days
later, when this event began to come to light, both staff sergeants approached
at least one of the women Marines, hoping that both women would lie to
investigators. One day later, after being briefed about the possible crimes
committed by his staff sergeants, the battalion commander issued a direct
written order to both, requiring them to have no further contact with each
other or the two lance corporals, except through counsel. Both staff sergeants
subsequently violated that order. About 3 days after receiving the battalion
commanders order, both staff sergeants were question [sic] by criminal
investigators and made false official statements.



Unpub. op. at 10. The court also provided
the following description of the manner in which the command disposed of
the allegations concerning SSgt M:



No adverse action was taken against staff
sergeant M for his role in these events. When the incident occurred, staff
sergeant M had already taken advantage of a special early-separation program
and was being processed for an honorable discharge. Even though the battalion
commander had evidence indicating that staff sergeant M had committed the
crimes of fraternization, disobeying his direct order, and obstruction
of justice, he nevertheless elected not to charge him but instead to allow
staff sergeant M to separate with an honorable discharge.



Id.
Appellant did not allege at trial that he was
the victim of discriminatory prosecution or that it was unlawful to refer
the charges against him to a court-martial in light of the administrative
separation of SSgt M; nor does he contend on appeal that the proceedings
were unlawful. Appellant's concern is limited to the question of whether
the decision of the court below -- that appellant's sentence should be
approved under Article 66(c), UCMJ, 10 USC § 866(c) -- constituted
an abuse of discretion or a miscarriage of justice.

II
We recently took note of the unique and highly
discretionary sentence review function of the Courts of Criminal Appeals
in United States v. Lacy, No. 98-0511, __ MJ ___ (1999).
We emphasized that neither Article 66(c) nor our precedents requires "those
tribunals 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.'" Id. at (6) (quoting United States v.
Ballard, 20 MJ 282, 283 (CMA 1985)).
The present case is not one of those "rare
instances" involving "disparate sentences adjudged in closely related cases."
SSgt M was not tried, convicted, or sentenced. There is no court-martial
record of findings and sentence that can be compared, which means that
the issue of sentence uniformity is not present in this case.
The issue here involves differences in initial
disposition rather than sentence uniformity. Given the broad and highly
discretionary authority of the Courts of Criminal Appeals on the issue
of sentence appropriateness, an appellant may bring to the attention of
those courts other cases with differing disposition decisions. That type
of information, when it does not raise the legal issue of a discriminatory
or otherwise illegal prosecution or referral, is subject to such consideration
as the experienced and mature judges of those courts deem appropriate.
In the present case, the court below reviewed
both the allegations against SSgt M and the charges against appellant and
noted that appellant also was charged with the more serious offenses of
rape and sodomy. We do not agree with appellants suggestion that the court
below cited those charges, of which appellant was acquitted, for the purpose
of justifying his confinement and punitive discharge; rather, the court
appropriately cited those charges for the purpose of describing the basis
for the command's decision to dispose of appellant's case by court-martial
while permitting an administrative discharge of SSgt M. The courts reliance
on the factors that led to differing disposition decisions did not constitute
an abuse of discretion or miscarriage of justice.

III
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* In a footnote, the
Court added: "The appellant was charged with but acquitted of raping and
sodomizing the woman."
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