                           CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Private E1 JONATHAN J. BLAIR
                         United States Army, Appellant
                                  ARMY 20110846
                        Headquarters, 2nd Infantry Division
                          T. Mark Kulish, Military Judge
            Colonel Jeffrey D. Pedersen, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate (pos t-trial)

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA (on second supplemental brief); Lieutenant Colonel Peter Kageliery , Jr.,
JA; Major Jacob D. Bashore, JA (on supplemental brief); Lieutenant Colonel
Imogene M. Jamison, JA; Lieutenant Colonel Peter Kageliery, Jr., JA; Major Jacob
D. Bashore, JA (on original brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Maurer, JA
(on second supplemental brief); Lieutenant Colonel Amber J. Roach, JA; Major
Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on supplemental and
original brief).

                                   29 August 2013

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

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of indecent conduct, in violation of Article 120, Uniform Code
of Military Justice, 10 U.S.C. § 920 (2006 & Supp V 2011), amended by 10 U.S.C. §
920 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -
conduct discharge and confinement for eighteen months. The convening authority
approved only so much of the sentence as provided for a bad -conduct discharge and
confinement for eleven months. The convening authority awarded appellant forty-
five days of confinement credit.
BLAIR—ARMY 20110846

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellate counsel assigns three errors to this court and appellant personally raises
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
second assignment of error merits discussion but no relief. The remaining
assignments of error and those matters personally raised by appellant pursuant to
Grostefon are without merit.
                                 BACKGROUND
       On 7 February 2011*, appellant and Private (PVT) AA discussed the
possibility of the two having sex that night, before PVT AA was set to depart Korea
the next day. That night, the two attended a party in the barracks where PVT AA
consumed alcohol. Appellant danced and flirted with PVT AA throughout the
evening and was aware of her significant alcohol consumption. At some point
during the party, appellant made a fist -pumping motion that mimicked a train
conductor to another servicemember, U.S. Navy Petty Officer (PO) Shawn Bradley.
The Petty Officer understood this gesture to indicate that appellant and he would
engage in sexual intercourse with PVT AA “simultaneously or in quick succession.”
Private AA was unaware appellant had signaled PO Bradley and had not told
appellant she consented to sexual intercourse with PO Bradley.
       After leaving the party and while appellant and PVT AA walked to appellant’s
room, PVT AA noticed PO Bradley was following them. Regarding this third party,
PVT AA, albeit in a diminished state, did implore appellant multiple times,
“whatever he is doing, don’t allow him to touch me.” Each time, appellant affirmed
he would not let anybody else touch her and provided reassurance by repeatedly
stating, “I got you girl.” However, appellant did not tell PO Bradley to stop
following them and did not prevent him from entering the room with appellant and
PVT AA.
       Once inside his barracks room, appellant engaged in sexual intercourse with
PVT AA in full view of PO Bradley and fully aware of his presence. Private AA
was initially unaware PO Bradley was even in the room but after he approached them
and attempted to place his penis in PVT AA’s mouth as she was having sex with
appellant, she rebuffed PO Bradley’s efforts and pushed him away. At some point,
another soldier, Specialist (SPC) Kirk Vogt, entered the room and also observed
appellant and PVT AA engaging in sexual intercourse. Again, appellant was aware
of SPC Vogt’s presence but did not stop or request that he leave the room. In fact,
PVT AA once again asked appellant to not let anybody el se touch her, a request with
which appellant again assured PVT AA he would comply.

      However, after ejaculation, appellant abandoned PVT AA and went to the
bathroom. Petty Officer Bradley then had sexual intercourse with PVT AA,
followed by SPC Vogt. Appellant returned from the bathroom while SPC Vogt was

*Corrected


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having sex with PVT AA. Upon seeing appellant and realizing she was engaged in
sexual intercourse with somebody other than appellant, PVT AA struggled and cried
out, “[s]top, get him off me.” Appellant did finally end up assisting PVT AA and
pushing SPC Vogt against a dresser.

       While also charged with crimes such as conspiracy and aggravated sexual
assault, appellant entered into a pretrial agreement to only plead gu ilty at his general
court-martial to indecent conduct, in violation of Article 120, UCMJ, for having
sexual intercourse in the presence of others. Appellant was sentenced to a bad-
conduct discharge and confinement for eighteen months. While the pretrial
agreement capped the confinement at twelve months, t he convening authority
ultimately approved the bad-conduct discharge and confinement for eleven months.

       For his role in this incident, SPC Vogt was also tried by a general court -
martial, but he was convicted of the more serious offense of aggravated sexual
assault. His adjudged sentence was a dishonorable discharge and three years of
confinement. The same convening authority as in this case reduced the confinement
by one month but otherwise approved the adjudged sentence.

       Also based on this incident, PO Bradley was originally charged with similar
assaultive crimes. However, he negotiated a pretrial agreement with his armed
service’s convening authority, the commander of III MEF Headquarters Group, III
Marine Expeditionary Force, under the terms of which he agreed to plead guilty to
the indecent conduct of engaging in sex in the presence of others in exchange for a
referral to a Summary Court-Martial. As a result of his low-level court-martial, PO
Bradley was sentenced to restriction for thirty days and reduction to the grade of E-
4. His convening authority suspended the reduction but approved the restriction.

       Before this court, appellant now complains his sentence is disproportionately
severe when compared to the punishment received by his co -actor, PO Bradley. As
such, appellant requests this court disapprove his bad -conduct discharge and
sentence to confinement.

                              LAW AND DISCUSSION

       This 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.” UCMJ art. 66(c). “Article
66(c)’s sentence appropriateness provision is a sweeping congressional mandate to
ensure a fair and just punishment for every accused.” United States v. Baier, 60
M.J. 382, 384 (C.A.A.F. 2005) (internal quotation omitted). The Court of Appeals
for the Armed Forces (CAAF) has stressed the importance of this court’s role in
evaluating sentence appropriateness to ensure “uni formity and evenhandedness of
sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001).



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We make such determinations in light of the character of the offender, the nature and
seriousness of his offenses, and the entire record of tr ial. United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982) (citing United States v. Mamaluy, 10 U.S.C.M.A.
102, 106-07, 27 C.M.R. 176, 181 (1959)). We are not required to “engage in
sentence comparison with specific cases ‘except in those rare instances in which
sentence appropriateness can be fairly det ermined only by reference to disparate
sentences adjudged in closely related cases.’ ” United States v. Lacy, 50 M.J. 286,
288 (C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985)).

       At this court, appellant bears the burden of demonstrating that PO Bradley’s
case is “closely related” to appellant's case and that the sentences are “highly
disparate.” Id. If successful, “then the [g]overnment must show that there is a
rational basis for the disparity.” Id.; United States v. Durant, 55 M.J. 258, 260
(C.A.A.F. 2001). “Sentence comparison does not require sentence equation.”
Durant, 55 M.J. at 260. In cases alleged to be highly disparate, “the test . . . is not
limited to a narrow comparison of the relative numerical values of the sentences at
issue, but also may include consideration of the disparity in relation to the potential
maximum punishment.” Lacy, 50 M.J. at 289. We have a great deal of discretion in
determining whether a particular sentence is appropriate but we are not authorized to
engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 148
(C.A.A.F. 2010); Lacy, 50 M.J. at 288; United States v. Healy, 26 M.J. 394, 395–96
(C.M.A. 1988).

                      Closely Related and Highly Disparate Sentences

       We must first determine if appellant has met his burden that the cases to be
compared are closely related. Closely related cases include those which pertain to
“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. In this case, we find
appellant has met his burden of proving his co -actor’s case is closely related.
Appellant, PO Bradley, and SPC Vogt all engaged in an indecent course of conduct
with the same victim; that is, in the barracks, while in each other’s view and
presence, they engaged in sex with a fellow servicemember who was intoxicated to
some level. All three were initially charged with both assaultive crimes as well as
indecent conduct in that their sexual activity was open and notorious. While eac h
faced individual courts-martial, all faced trials stemming from a common incident.

       Next, we must determine if appellant has shown the sentences in the closely
related cases to be highly disparate. We note here that because the co-actors were
tried at different levels of court-martial, this could appear to involve an issue of
“differences in initial disposition rather than sentence uniformity.” United States v.
Noble, 50 M.J. 293, 294-95 (C.A.A.F. 1999). However, as both appellant and PO



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Bradley were tried, convicted, and sentenced, this is not an instance where “[t]here
is no court-martial record of findings and sentence that can be compared, which
[would mean] that the issue of sentence uniformity is not present. ” Noble, 50 M.J.
at 293. Petty Officer Bradley pleaded guilty to indecent conduct and was ultimately
sentenced to thirty days restriction and a suspended one -grade reduction. However,
appellant, who like PO Bradley only pleaded guilty to the indecent co nduct charge,
received a federal conviction and was sentenced to a punitive discharge and
confinement for eighteen months, albeit only eleven months of confinement was
approved. Therefore, we find appellant has also met his burden to show these
sentences to be highly disparate.

                           Rational Basis for the Disparity

       The burden now shifts to the government to demonstrate a rational basis exists
to justify the difference in the relevant sentences. We find three strong and cogent
reasons for any variation in the relative uniformity of appellant’s and PO Bradley’s
sentences. Before detailing those reasons, we address any notion that a cross-
services comparison would be inappropriate.

       If co-actors are in different services and fall under different convening
authorities, this may factor into any sentence comparison but does not preclude it.
In the past, service courts have expressed some reluctance to compare sentences
across services. Specifically, the Air Force Court of Criminal Appeals has found:

                    . . . . While there are certain disciplinary ideals and
             needs which are common to the Profession-at-arms as a
             whole, the several services which comprise the United
             States Armed Forces have separate and diverse missions
             which dictate different needs and emphases on the many
             facets of good order and disciplinary (sic). The morale,
             welfare, and good order and discipline needs, and specific
             areas of emphases thereof, will differ for a fighter wing
             when compared to a logistics or training center and vice
             versa. This factor grows when expanded to the various
             services. The commander of an air force base located near
             a metropolitan area will have far different good order and
             discipline needs than a commander of an Army Post with a
             different mission, or a commander of a naval vessel
             sailing in some remote part of the world.

United States v. Rencher, 1998 WL 88628, at *5 (A.F. Ct. Crim. App. 20 Feb. 1998).
See also United States v. Turner, 28 M.J. 556 (C.G.C.M.R. 1989) (determining that
comparing Coast Guard cases with cases from the other military services would lead
that reviewing court into a morass from which there would be no escape).



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BLAIR—ARMY 20110846


       These cautions were expressed at a time before the military’s superi or court’s
further guidance on this issue in Lacy and Sothen. See Lacy, 50 M.J. at 288; Sothen,
54 M.J. at 296. While we agree that the impact of certain crimes may differ
according to the perpetrator’s service, unit, location, military occupational spec ialty,
and assigned duties, this impact is but one factor in the analysis, but not conclusive
of whether the analysis should be conducted in the first place. In today’s
environment of joint bases, joint deployments, joint units and task forces, joint
commissions, and joint hearings, we no longer fear entering the “morass” of cross -
service sentence comparison when appropriate.

       Accordingly, we now turn to the rational bases for the disparate outcomes in
the closely related cases at hand. First, appellant’s charges were preferred against
him on 5 April 2011 and referred to general court -martial on 13 June 2011.
Appellant and the convening authority entered into a pretrial agreement on 8
September 2011 wherein appellant agreed to plead guilty to indecent con duct at his
general court-martial in exchange for a confinement cap of twelve months and
disapproval of any dishonorable discharge. During the pretrial processing of
appellant’s court-martial, on 15 June 2011, appellant was found guilty at a Field
Grade Article 15, UCMJ, hearing and received extra duty for 45 days, restriction for
twenty-six days, forfeiture of $733.00 pay for one month, and reduction to the grade
of E-1 (from then E-3). This nonjudicial punishment was administered for
appellant’s failure to repair on 11 April 2011, wrongfully going off -post while his
pass privileges were suspended on 7 May 2011, and neglectfully losing his military
identification card on 1 June 2011. This nonjudicial punishment was included in the
stipulation of fact, entered as aggravation evidence, and was expressly agreed upon
as appropriate for consideration when fashioning an appropriate sentence. On the
other hand, unlike appellant, there is no indication that PO Bradley engaged in any
further misconduct warranting official action pending his upcoming trial.

       Second, clearly a main reason for the disparity found here is a result of PO
Bradley’s case being referred to a summary court-martial. Obviously, the potential
maximum punishment varies greatly dependi ng on the forum. This difference in the
respective maximum punishments is a proper consideration when comparing
disparate sentences. See Lacy, 50 MJ at 289. Nevertheless, appellant asserts, in
essence, it was unfair for PO Bradley to be tried by the Mar ine Corps at a summary
court-martial when the Army elected to try appellant at a general court -martial. This
complaint rings somewhat hollow in light of our superior court’s observation, “[t]he
military justice system is highly decentralized. Military co mmanders stationed at
diverse locations throughout the world have broad discretion to decide whether a
case should be disposed of through administrative, nonjudicial, or court -martial
channels.” Lacy, 50 M.J. at 287. Surely, if the proper exercise of thi s discretion
extends to courses of action other than court -martial, it must also extend to the
decision as to which of the three levels of court -martial the charges are to be



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referred. Accordingly, variance in the exercise of discretion does not equate to an
abuse of that discretion.

        Simply put, PO Bradley was able to negotiate a more favorable pretrial
agreement with his convening authority than appellant was able to with his. * Even
accepting PO Bradley’s treatment as relatively lenient, we find no impropriety or
unlawful, invidious, or impermissible discrimination by either convening authority.
Hence, the disparity in disposition does not seriously detract from the appearance of
fairness and integrity in military justice nor does it “rise to the level of an obvious
miscarriage of justice or an abuse of discretion.” United States v. Snelling, 14 M.J.
267, 269 (C.M.A. 1982) (quoting United States v. Olinger, 12 M.J. 458 460 (C.M.A.
1982)). “Ordinarily, leniency towards one accused does not necessari ly flow to
another, nor should it. Disparity that results from a convening authority’s . . .
judgment does not necessarily entitle a service person to some form of appellate
relief.” United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994). See also
Durant, 55 M.J. at 264 (Effron, J., dissenting) (reasoning “that a sentence
adjustment is not required where the sentence at issue is found to be objectively
appropriate and . . . the disparity is largely the result of the coactor’s relatively
lenient sentence”). In fact, any perceived leniency afforded PO Bradley by his
convening authority is readily explained by PVT AA’s victim preference letter in
that case:

             . . . I hereby elect to express my preference not to testify
             in Okinawa against [PO Bradley].

             I understand that my preference not to participate in this
             case may mean that [PO Bradley] is charged with a lesser
             offense, and that his case may be dealt with at a lower
             forum. I think that this is an appropriate outcome . . . .

*
  A certified true copy of the “Summary Court -Martial Package” of PO Bradley, to
include: the record of trial; the initial charges which were withdrawn ; the signed and
introduced summary court-martial memorandum of pretrial agreement ; the summary
of proceedings signed by the summary court -martial officer; and the admitted victim
preference letter by PVT AA, are before this court over appellate defense counsel’s
objection. We specifically note that even absent consideration of any portions of
that package not already introduced by appellate defense counsel, our “closely -
related” case comparison and ultimate decision would be the same and still result in
this court affirming appellant’s findings and sentence. We further note that judicial
notice of relevant portions of the summary court -martial record was an available
option. See United States v. Smith, 56 M.J. 653, 660 n.7 (Army Ct. Crim. App.
2001).




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BLAIR—ARMY 20110846


             . . . But to the extent that my views affect the command’s
             decision, I believe the best outcome would be for [PO
             Bradley] to plead guilty to a lesser offense at a lower
             forum. I have relocated to CONUS and for personal
             reasons I am hoping to move on from these events as soon
             as I am finished testifying in the two related Army cases.

       Third, one factual distinction between appellant’s conduct and that of his co -
actors provides perhaps the most compelling reason for the disparity. It was
appellant, not PO Bradley and not SPC Vogt, in whom PVT AA placed her trust, a
trust which appellant almost immediately thereafter unabashedly betrayed. Rather
than keeping his promises of “I got you, girl,” he most assuredly did not “have her
back.” These facts and circumstances surrounding appellant’s offense were properly
considered in aggravation. See Rule for Courts-Martial 1001(b)(4).

       Accordingly, we find appellant’s case to be closely related to that of PO
Bradley, their disposition and sentences to be highly disparate, but t here are good
and cogent reasons that constitute a rational basis for that disparity. Furthermore,
apart from the comparative analysis, we find appellant’s disposition and sentence,
both adjudged and approved, to be appropriate and not excessively severe.

                                   CONCLUSION

       On consideration of the entire record, submissions of the parties, and those
matters personally raised by appellant pursuant to Grostefon, we hold the findings of
guilty and the sentence as approved by the convening authority are correct in law
and fact.

      Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge CAMPANELLA concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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