               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    TREVIN C. CUMMINGS
      AVIATION ORDNANCEMAN SECOND CLASS (E -5), U.S. NAVY

                            NMCCA 201400095
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 28 October 2013.
Military Judge: Col James Carberry, USMC.
Convening Authority: Commanding Officer, Marine Aircraft
Group 24, 1st Marine Aircraft Wing, Marine Corps Base
Hawaii, Kaneohe Bay, HI.
Staff Judge Advocate's Recommendation: Maj J.M. Hackel,
USMC.
For Appellant: LtCol Richard Belliss, USMCR.
For Appellee: LCDR Jeremy Brooks, JAGC, USN; Maj Crista
Kraics, USMC.

                              26 June 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 assault
consummated by a battery in violation of Article 128, Uniform
Code of Military Justice, 10 U.S.C. § 128. The military judge
sentenced the appellant to confinement for 75 days, reduction to
pay grade E-1, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged and, except for the
punitive discharge, ordered the sentence executed.

     On appeal, the appellant argues that his sentence is
inappropriately severe in light of his military service and the
facts of his case. We disagree. 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.

     We review the appropriateness of the sentence de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We engage
in a review that gives “‘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) (quoting
United States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)).

     Turning to the facts of this case, we conclude that the
appellant’s sentence is appropriate and just under the
circumstances. The victim, AMS, was a newly arrived member at
her squadron having just completed her initial training.
Approximately one week after her arrival, she and approximately
ten others from the squadron went out in town to celebrate her
birthday. The appellant was among those in the group that
evening. They all initially met at a residence of one of the
members of the group, Aviation Ordnanceman Second Class (AO2) I.
When the group returned to AO2 I’s house later that evening, AMS
proceeded to vomit in a bathroom from the effects of alcohol.
AO2 I then told AMS that she could sleep in one of the empty
bedrooms and “no one would bother her there.” Prosecution
Exhibit 1 at 2. She then crawled into bed and fell asleep.

     The appellant was a 26-year-old second class petty officer
(E-5) in his seventh year of service at the time of his offense.
After the group returned that evening to AO2 I’s house, the
appellant fell asleep on a couch in the living room. During the
night he got up from the couch, wet from rain coming through a
nearby open window, and entered the bedroom where AMS lay
asleep. He then got into bed next to her and fell asleep. At
some point during the evening or early hours of the next
morning, the appellant awoke, moved over, and began caressing
AMS’s thigh as she lay sleeping on her stomach. He continued to
do so for some time until she awoke, startled, and hastened out
of the bedroom. AMS testified at trial that this experience
left her feeling “violated” and she experienced difficulty
concentrating at work. Record at 39-40. She also sought

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counseling from a chaplain and a mental health provider and
remained under a doctor’s care on the date of trial. Id. at 40.

     We have given due consideration to the appellant’s record
of service and the nature of his offense. Under the
circumstances, we conclude that the approved sentence is
appropriate for the appellant and his offense. To grant relief
at this point would be engaging in clemency, a prerogative
reserved for the convening authority, and we decline to do so.
United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). We
are convinced that justice was done and that the appellant
received the punishment he deserved.

                           Conclusion

    The findings and the sentence are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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