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

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

                      UNITED STATES OF AMERICA

                                     v.

                        CLAUDIO E. AYALA
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201400332
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 22 May 2014.
Military Judge: Col D.M. McConnell, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: CAPT Bree A. Ermentrout, JAGC, USN.
For Appellee: LCDR Catheryne E. Pully, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.

                             26 March 2015

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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 general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of dereliction of duty and one specification of
larceny in violation of Articles 92 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 921. The military judge
sentenced the appellant to a reprimand, reduction to pay grade
E–1, confinement for three years, and a dishonorable discharge.
The convening authority (CA) disapproved the reprimand, approved
the remainder of the sentence as adjudged and, pursuant to a
pretrial agreement, suspended all confinement in excess of
thirty months and waived automatic forfeitures for six months.
     In his sole assignment of error, the appellant contends
that a dishonorable discharge is unjustifiably severe in light
of the financial pressures that led to his offenses, and the
further hardship that the adjudged sentence will inflict upon
his family. We disagree.
     After carefully considering the record of trial, and the
submissions of the parties, we are convinced 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 occurred. Arts. 59(a) and 66(c), UCMJ.
                           Background

     The appellant, a staff sergeant with seventeen years of
service, was a casualty assistance calls officer (CACO)
appointed to the case involving the death of Lance Corporal
(LCpl) CR, who died as a result of wounds he received during
combat in Afghanistan. Specifically, the appellant was
responsible for assisting AR (the widow of LCpl CR) and their
two-year-old son. The appellant’s duties as a CACO included
handling all phases of LCpl CR’s affairs and rendering
assistance to his widow.
     The appellant took possession of and was tasked with the
delivery of a $29,900.00 check from the Marine Corps Law
Enforcement Foundation to LCpl CR’s son. The check was intended
to be part of a scholarship fund for LCpl CR’s son; however, the
appellant never delivered the check. Approximately seventy-five
days after receiving the check, the appellant deposited it into
his personal bank account. Six months after that the appellant
used the intended scholarship money to pay off personal debt he
had accrued due to his family’s personal and medical expenses.
     The appellant’s larceny was eventually discovered when LCpl
CR’s widow contacted the Marine Corps Law Enforcement Foundation
and inquired about the money. LCpl CR’s son was eventually
awarded the scholarship funds by the Marine Corps Law
Enforcement Foundation, approximately 421 days after the
original $29,900.00 check was issued.




                                2
                    Sentence Appropriateness

     This court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Under
Article 66(c), UCMJ, a military appellate court “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 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)).
     After our review of the entire record, we find that the
sentence is appropriate under the circumstances. The appellant
was entrusted with a large sum of money and caring for the
family of a Marine killed in the defense of our nation; however,
he abused that trust by stealing nearly $30,000.00 from the two-
year-old son of a fallen warrior. The fact that the appellant
was motivated by a desire to help his own family, or that the
funds were eventually paid to the child by a third party after
the theft was discovered, does not significantly mitigate the
appellant’s crimes.
     We have given due consideration to the appellant’s record
of service and the nature of his offense, and conclude that the
approved sentence is appropriate under the circumstances.
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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