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

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      STEPHEN E. TANNER
         HOSPITAL CORPSMAN SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201500053
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 21 October 2014.
Military Judge: CAPT F.J. Foil, JAGC, USN.
Convening Authority: Commander, Navy Recruiting Command,
Millington, TN.
Staff Judge Advocate's Recommendation: CDR Todd Kline,
JAGC, USN.
For Appellant: LT David W. Warning, JAGC, USN.
For Appellee: Maj Tracey Holtshirley, USMC; Capt Cory
Carver, USMC.

                            12 January 2016

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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 general court-martial,
convicted the appellant, contrary to his pleas, of three
specifications of violating a lawful general order and one
specification of assault consummated by a battery, in violation
of Articles 92 and 128, Uniform Code of Military Justice, 10
U.S.C. §§ 892 and 928.1 The military judge sentenced him to 60
days’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant raises five assignments of error (AOEs):

     (1) the evidence underlying the conviction of assault
     consummated by a battery is legally and factually
     insufficient to prove lack of consent or absence of a
     mistake of fact as to consent;

     (2) the evidence underlying the conviction for
     violating a lawful general order—that prohibits a
     recruiter from engaging in an unduly familiar
     relationship with a potential recruit—is legally
     insufficient in that the appellant’s attempts to
     engage in such a relationship were rebuffed;

     (3) the appellant’s punishment is inappropriately
     severe in that the disposition of his case was widely
     disparate from that of another recruiter who engaged
     in similar, if not more egregious, conduct;

     (4) the staff judge advocate (SJA) failed to comment
     on claims of legal error the appellant raised in his
     clemency request; and,

     (5) the promulgating order misstates one of the
     specifications of which the appellant was convicted.

     After carefully considering the record of trial and the
parties’ submissions, we find merit in the fifth AOE and will
order corrective action in our decretal paragraph. We are
convinced the findings and sentence are otherwise correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant occurred. Arts. 59(a) and
66(c), UCMJ.




1
  The appellant pleaded guilty to three specifications of the lesser included
offense of attempting to violate a lawful general order. After a trial on
the merits, the military judge found him guilty of the greater offense as
charged. The appellant pleaded not guilty to all the remaining charges and
specifications, and was acquitted of both abusive sexual contact and
endeavoring to impede an investigation. Art. 120 and 134, UCMJ, 10 U.S.C. §§
920 and 934.
                                      2
                                 Background

     The appellant was a Navy recruiter. In April 2012, the
appellant was driving in a government vehicle with a future
Sailor, now-Machinist’s Mate Fireman (MMFN) TK.2 The appellant
used a discussion of the potential negative effects pregnancy
would have on MMFN TK’s entry into the Navy as an entrée to
talking about sex. MMFN TK did not encourage this conversation,
which quickly led to the appellant questioning her about her
sexual history and attitudes. He then requested that she
perform oral sex on him. She declined.

     In March of 2013 the appellant was again in a government
vehicle but with a different applicant, now-Hospitalman (HN) MT.
As they discussed the application process, the appellant strayed
off into sexual matters, asking HN MT about her sexual history,
including what sexual positions she liked. HN MT declined to
answer, saying such matters were private. Upon arrival at the
recruiting station, the appellant requested, and received, a hug
from HN MT. The next day, the appellant commented on the size
of HN MT’s hands, saying she “would hold him well.”3 HN MT
interpreted this as referring to her holding his penis.

     The following day, while in the government vehicle, the
appellant reached over and touched HN MT’s upper groin area and
asked her to undo her belt and lay back.4 HN MT refused, and
days later told the appellant “[t]here’s a line that does not
need to be crossed.”5 The appellant responded by saying he
“wished there wasn’t” and asking HN MT if she wanted to “hang
out.”6 When she declined, he asked her for a hug, suggesting
they move to the rear of the recruiting station to do so. After
receiving the hug, the appellant squeezed HN MT’s thigh and
commented on the strength of her muscles. He then grabbed the



2
  The three young women involved in this case were either applicants or in the
Delayed Entry Program at the time of the offenses. All are now on active
duty in the Navy. For simplicity’s sake, all are referred to here by their
rate and rank at the time of trial.
3
    Record at 122.
4
  The appellant and HN MT disagree on whether she invited this touching, which
formed the basis for the abusive sexual contact charge of which the appellant
was acquitted.
5
    Record at 127.
6
    Id.
                                      3
waistband of HN MT’s shorts, but released his hold as she moved
away.

     A month later, the appellant was in the recruiting station
with another applicant, now-Information Systems Technician
Seaman (ITSN) JS. As ITSN JS went to leave, the appellant
hugged her and whispered to her a request to call him. ITSN JS
returned some days later to fill out application paperwork.
When other applicants left, she found herself in the station
alone with the appellant. After locking the front door, the
appellant began asking ITSN JS questions about her sexual
history, including what positions she liked, what type of
underwear she wore, and whether she had ever had sex with a
married man. He also asked what he was “going to do when his
wife smells [ITSN JS’s] perfume on him.”7 ITSN JS tried to avoid
answering his questions, responding either “No” or “I don’t
know.”8

     The appellant then took ITSN JS’s hand and attempted to
roll her chair towards the back of the office. When she refused
to go, he smiled and unlocked the door. As ITSN JS was leaving,
the appellant cautioned her: “You wouldn’t want to tell anybody
about this. It would hurt your career and mine.”9

     Additional facts necessary to address the AOEs will be
provided below.

                              Discussion

I.     The Assault Consummated by a Battery

     We review questions of factual and legal sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether considering
the evidence in the light most favorable to the prosecution, a
reasonable fact finder could have found all the essential
elements beyond a reasonable doubt.” United States v.
Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citations and
internal quotation marks omitted). In weighing questions of
legal sufficiency, the court is “bound to draw every reasonable
inference from the evidence in the record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134

7
    Id. at 168.
8
    Id. at 169.
9
    Id. at 171.
                                   4
(C.A.A.F. 2001) (citations omitted). The test for factual
sufficiency is “whether after weighing the evidence in the
record of trial and making allowances for not having personally
observed the witnesses,” we are convinced of the accused’s guilt
beyond a reasonable doubt. United States v. Turner, 25 M.J.
324, 325 (C.M.A. 1987). Proof beyond a reasonable doubt does
not mean, however, that the evidence must be free from conflict.
United States v. Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App.
2001).

     The appellant was charged with one specification of assault
consummated by a battery. To convict the appellant of this
offense, the Government had to prove the appellant (1) did
bodily harm to HN MT, and (2) that the harm was done with
unlawful force or violence. MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), Part IV, ¶¶ 54b(2) and 54c(2). “‘Bodily harm’ means
any offensive touching of another, however slight.” Id. at
¶ 45a(g)(3). The appellant claims the Government failed to
prove the touching was offensive, in that the evidence was both
legally and factually insufficient to establish (1) lack of
consent and (2) lack of a mistake of fact as to consent. We
disagree.

     HN MT testified she neither consented to, nor in any way
encouraged, the touching. In the days immediately preceding the
alleged assault, HN MT: (1) declined to discuss her sexual
history when asked, telling the appellant it was a private
matter; (2) grabbed the appellant’s hand and stopped him when he
touched her on the upper groin area; (3) told the appellant
that, regarding his touching her, there was “a line that did not
need to be crossed;” and, (4) indicated she did not wish to
“hang out” with the appellant. While the appellant points to HN
MT’s acquiescence to his requests for a hugs as evidence of
consent, the totality of the circumstances clearly shows she did
not consent to the touching of her waist or thigh. And, even if
we accept the appellant’s claims that he honestly believed HN MT
was consenting, the totality of HN MT’s behavior with the
appellant makes any such belief objectively unreasonable.

     After reviewing the record of trial and considering the
evidence in the light most favorable to the prosecution, we are
convinced that a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt. Furthermore,
after weighing all the evidence and having made allowances for
not having personally observed the witnesses, we are convinced
beyond a reasonable doubt of the appellant's guilt.


                                 5
II.     The Unduly Familiar Relationship

     At trial, the appellant admitted that he engaged in the
sexual discussions, comments and requests with MMFN TK, HN MT,
and ITSN JS with the intent to “form a dating or private social
relationship” with them.10 He denied violating the general
order11 that prohibited such unduly familiar relationships,
however, contending that his attempts to form such prohibited
relationships with these women were frustrated by their
rebuffing his advances.

     In finding the appellant guilty of violating a lawful
general order—and not just the attempt thereof to which the
appellant pleaded guilty—the military judge stated the
following:

             And specifically I want to put on the record
        that this court in regards to Charge I finds that
        the accused was put on notice under the Charge by
        listing the specific general order that he
        violated, the general order under section 9A
        specifically states, “Prohibited activities.
        Recruiting personnel shall not form or attempt to
        form a dating or private social relationship with
        anyone known to be a prospect, applicant or
        future Sailor.” Also, the court finds that the
        series of inappropriate sexual questions by the
        accused to each of the three victims on multiple
        occasions to be acts that would be engaging in an
        unduly familiar relationship.12

     We agree with the military judge’s findings. The appellant
mistakenly seeks to draw the line of “unduly familiar
relationship” at sexual activity. In truth, he crossed the line

10
     Id. at 91, 94, 97.
11
  Commander, Navy Recruiting Command Instruction (COMNAVCRUITCOMINST)
5370.1F, dated 12 October 2011.
12
  Record at 316. The appellant claims the military judge erred in looking
beyond the specific language of the paragraph identified in the three
specifications under Charge I. That language, in paragraph 5 of COMNAVCRUIT-
COMINST 5370.1F, prohibits “personal relationships that are unduly familiar
between recruiting personnel and prospects, applicants and Future Sailors.”
The word “attempt” is only found in paragraph 9 of that instruction (quoted
by the military judge). As we agree with the military judge that the
appellant did more than simply attempt to engage in an unduly familiar
relationship, we find no error in this superfluous reference to paragraph 9.
                                      6
when he engaged in unprofessional discussions regarding the
victims’ sexual activities and preferences and, in HN MT’s case,
requested and received hugs. These conversations and conduct
involved a level of familiarity not required by the recruiting
process. The simple fact these three relationships did not
extend to sex does not mean they were not unduly familiar.13
Indeed, we are convinced they were unduly familiar.

III.     Widely Disparate Disposition

     We review sentence appropriateness de novo. United States
v. Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). In determining
whether a sentence is appropriate we will only engage in
sentence comparison in the rare instances of highly disparate
sentences in closely-related cases. United States v. Lacy, 50
M.J. 286, 288 (C.A.A.F. 1999). If this threshold is met, we
will then determine whether any rational basis for the disparity
exists. Id.
     During the sentencing phase of the court-martial, the
defense offered evidence14 of misconduct by another recruiter at
the appellant’s office. That recruiter, Electrician’s Mate
Petty Officer Third Class (EM3) JC, allegedly engaged in sexual
relationships with two applicants. As a result, the Commanding
Officer of Navy Recruiting District (CO, NRD) New Orleans
processed EM3 JC for administrative separation from the Navy for
violating COMNAVCRUITCOMINST 5370.1F. The characterization of
EM3 JC’s discharge was “UNDER HONORABLE CONDITIONS (GENERAL).”15
There is no indication whether EM3 JC was disciplined for the
alleged misconduct.
      The military judge admitted this evidence over the
Government’s objection, saying he would “give it the appropriate
weight it deserves.”16 The appellant’s civilian defense counsel
again raised the issue of EM3 JC in the appellant’s RULE FOR
COURTS-MARTIAL 1105, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
clemency submission, labeling the disparate treatment as “Legal
Error.”


13
  The instruction at issue supports this conclusion, as it specifically
addresses sexual relations between recruiters and applicants in a separate
paragraph from that which prohibits unduly familiar relationships.
14
     Defense Exhibit E.
15
     Id. at 1.
16
     Record at 405.
                                      7
     As EM3 JC was neither tried nor sentenced by a court-
martial, the issue before us involves differences of initial
disposition, rather than sentences. It is, however, within this
court’s broad power under Article 66(c), UCMJ, to consider such
matters in reviewing sentence appropriateness. United States v.
Stotler, 55 M.J. 610, 612 (N.M.Ct.Crim.App. 2001) (citing United
States v. Noble, 50 M.J. 293, 295 (C.A.A.F. 1999)).
     We note the great disparity between EM3 JC’s administrative
discharge and the appellant’s conviction and punishment.
However, we conclude the appellant has not shown that his and
EM3 JC’s offenses are closely related.17
     First, although the appellant and EM3 JC were recruiters in
the same office engaged in similar misconduct, they did not do
so as part of any common scheme. There is no evidence either
knew of the other’s misconduct while it was occurring.
     Second, there is no evidence indicating that EM3 JC engaged
in any non-consensual activity. In contrast, the appellant was
convicted of assaulting a young woman who had sought his
assistance in joining the Navy.
     Third, the decision to administratively process EM3 JC was
made by the CO, NRD New Orleans—not the Commander, Navy
Recruiting Command, the CA in this case.
     Fourth, the CA was well within her authority to refer the
charges against the appellant to a general court-martial. The
appellant was charged, inter alia, with abusive sexual contact.
The Article 32, UCMJ, investigating officer found probable cause
to believe the appellant committed that offense—an offense
clearly appropriate for referral to a general court-martial.
See Noble, 50 M.J. at 295 (finding it appropriate for a Court of
Criminal Appeals to cite charges of which an appellant was
acquitted for purposes of examining a CA’s decision to refer an
appellant’s case to a court-martial while administratively
disposing of a closely related case). We find this fact alone
to be a sufficiently good and cogent reason for the difference
in the dispositions.




17
  The Court of Appeals for the Armed Forces has given the following examples
of “closely related” cases: “coactors involved in a common crime,
servicemembers involved in a common or parallel scheme, or some other direct
nexus between the servicemembers whose sentences are sought to be
compared[.]” Lacy, 50 M.J. at 288.
                                      8
IV.     Failure to Comment on Allegations of Legal Error

     When a sentence includes a punitive discharge or
confinement for one year or more, a CA must receive a written
recommendation from his or her SJA before taking action on the
case. Art. 60(d), UCMJ; R.C.M. 1106(a). In that recommendation
the SJA must state “whether, in the [SJA’s] opinion, corrective
action on the findings or sentence should be taken when an
allegation of legal error is raised in matters submitted under
R.C.M. 1105 or when otherwise deemed appropriate by the [SJA].”
R.C.M. 1106(d)(4).

     The appellant alleges that the SJA’s failure to comment on
allegations of legal error raised in the appellant’s R.C.M. 1105
clemency submission requires we remand this case for new post-
trial processing. We disagree.

     In the clemency submission, the appellant’s civilian
defense counsel alleged two legal errors: first, that the SJA
erred in advising the CA that there were no companion cases;
and, second, that trial counsel was allowed to make improper
rebuttal argument. We find neither allegation to have merit and
will not find prejudicial error in an SJA’s failure to comment
on allegations of error when “there is no error in the first
instance at trial.” United States v. Welker, 44 M.J. 85, 89
(C.A.A.F. 1996) (citation omitted). There being no impact on
the appellant’s substantial rights, we decline to remand for a
new recommendation and action.

IV.     Error in the Promulgating Order

     The promulgating order erroneously reflects that
Specification 3 of Charge I states that the offense occurred “on
divers occasion [sic], between on or about 1 March 2013 and on
or about 31 March 2013.”18 The specification actually alleged
that the offense occurred on a single occasion “on or about
April 2012.”19

     We test this error under a harmless-error standard. United
States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998)
(citation omitted).   The appellant alleges no prejudice
resulting from this error, and we find this error did not
materially prejudice the appellant’s substantial rights.
However, the appellant is entitled to accurate court-martial

18
     CA’s Action of 9 Feb 2015 at 1.
19
     Charge Sheet.
                                       9
records. Id. Accordingly, we order the necessary corrective
action in our decretal paragraph.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed. The supplemental promulgating order shall correctly
reflect the language of Specification 3 of Charge I.

                            For the Court




                            R.H. TROIDL
                            Clerk of Court




                              10
