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

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, S.A. DOMINGUEZ
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        THOMAS C. FURKIN
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201400005
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 18 September 2013.
Military Judge: LtCol David Jones, USMC.
Convening Authority: Commander, Marine Corps Recruit
Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: LtCol R.G. Palmer,
USMC.
For Appellant: Maj Richard Viczorek, USMCR.
For Appellee: CDR Christopher, L. Van Brackel, JAGC, USN;
Maj Crista D. Kraics, USMC.

                            28 October 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 violating a lawful general order
(fraternization), one specification of making a false official
statement, one specification of damaging government properly
through neglect, one specification of reckless operation of a
motor vehicle, and one specification of assault consummated by a
battery, in violation of Articles 92, 107, 108, 111, and 128,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 908,
911, and 928. The appellant was sentenced to confinement for
170 days, to be reduced to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and “[s]ubject to the limitations contained in the
Uniform Code of Military Justice, the Manual for Courts-Martial,
[and] applicable regulations,” ordered it executed.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
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.

         Purported Execution of the Punitive Discharge

     The appellant avers that the CA erred in attempting to
execute the appellant's bad-conduct discharge. We agree.
Although this court originally found no error in the use of
nearly identical language, see United States v. Bailey, 2009 CCA
LEXIS 670 at *6-7 n.1, unpublished op. (N.M.Ct.Crim.App. 29 Sep
2009), our superior court disagreed, noting that “[u]nder
Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered
executed until, after the completion of direct appellate review,
there is a final judgment as to the legality of the
proceedings.” United States v. Bailey, 68 M.J. 409, 409
(C.A.A.F. 2009) (summary disposition). However, the CAAF went
on to say that “to the extent that the convening authority's
action purported to execute the bad-conduct discharge, it was a
nullity.” Id. Accordingly, no further action is required.




                                2
                         Conclusion
     The findings and sentence as approved by the CA are
affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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