UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        MULLIGAN, FEBBO, and SCHASBERGER
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                        Staff Sergeant BERSUHS A. MORA
                          United States Army, Appellant

                                   ARMY 20170270

         Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                     Charles L. Pritchard, Jr., Military Judge
               Colonel David E. Mendelson, Staff Judge Advocate

For Appellant: Major Todd W. Simpson, JA; Captain Zachary A. Gray, JA (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith, JA
(on brief).


                                    5 October 2018

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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

      Staff Sergeant (SSG) Bersuhs Mora argues his sentence is inappropriately
severe in that a bad-conduct discharge is not warranted by his misconduct. We
disagree, and so did SSG Mora at his own trial.

     After the military judge convicted SSG Mora of an Article 134 offense and
making a false official statement, 1 the military judge sentenced him to a bad-conduct


1
 A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of adultery and one specification of incest under Okla.
Stat. tit. 21, § 885, in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. §§ 934 [UCMJ]. The military judge also convicted SSG Mora, contrary to
his plea, of making a false official statement in violation of Article 107, UCMJ. The
military judge found the adultery specification was an unreasonable multiplication
of charges with the incest specification, and dismissed the adultery specification
contingent on the incest specification surviving appellate review.
MORA—ARMY 20170270

discharge, confinement for six months, and a reduction to the grade of E-4. The
convening authority approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. In his sole
assignment of error, SSG Mora asserts a bad-conduct discharge is inappropriately
severe in light of his more than fifteen years’ military service. Appellant argues his
misconduct is “what amounts” to consensual adultery. At first blush, his assigned
error might seem to have merit. Closer scrutiny of the record, however, convinces
us otherwise. We conclude appellant’s sentence is appropriate based on the severity
of his misconduct, the evidence in aggravation, and appellant’s own request that he
receive a bad-conduct discharge.

                                    BACKGROUND

                                A. Appellant’s Misconduct

       Between late 2015 and early 2016, while assigned to Fort Sill, SSG Mora
engaged in an incestuous relationship with his seventeen-year-old step-daughter.
Due to problems at her biological father’s home in Colorado, SSG Mora’s step-
daughter moved in with her mother and appellant in Oklahoma the same month as
her seventeenth birthday. Appellant told the teenage girl that she now lived in his
house, which made her feel like she “owed him something.” Building on her
vulnerability and preying on her age, SSG Mora had sexual intercourse with his
step-daughter several times over the course of several months. After appellant
impregnated her and his incestuous misconduct was exposed, he lied to a Special
Agent investigating the allegations.

                           B. Appellant’s Guilty Plea and Trial

       Staff Sergeant Mora entered into a pretrial agreement with the convening
authority. Appellant agreed to plead guilty to adultery and incest. Appellant agreed
that the government could attempt to prove the charge of his making a false official
statement. In exchange, the convening authority agreed that, if appellant was
convicted of also making a false official statement, the convening authority would
approve no more than thirty months of appellant’s eventual sentence to confinement.
The convening authority also agreed to convert any dishonorable discharge appellant
might be adjudged to a bad-conduct discharge. 2 Staff Sergeant Mora pleaded guilty
pursuant to his pretrial agreement, and the government proved the charge of making
a false official statement in the contested portion of the trial. Appellant’s was
facing a maximum punishment of fifteen years confinement.




2
    The pretrial agreement contained other terms not relevant to this appeal.


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MORA—ARMY 20170270

      Among the presentencing evidence in SSG Mora’s favor, he served through
multiple deployments, including three combat tours to Iraq, and his awards include
several Army Commendation Medals and the Combat Action Badge.

       During sentencing, the prosecution and defense presented evidence of
appellant’s rehabilitative potential, or lack thereof. Staff Sergeant Mora received
two non-judicial punishments. His first, in 2005, was for driving under the
influence of alcohol. As a result, he was reduced to Specialist. Appellant was
separated from the active duty Army for serious misconduct. 3 In 2009, after coming
back on active duty, SSG Mora received non-judicial punishment for failure to
report and false official statement offenses. As a result, he was dropped from the
Warrior Leader Course. He also received a negative Noncommissioned Officer
Evaluation Report.

      The prosecution argued that SSG Mora should receive a bad-conduct
discharge, reduction to the grade of E-1, and thirty-six months’ confinement. By
contrast, SSG Mora requested the military judge sentence him to a bad-conduct
discharge and therefore reduce his sentence to confinement. Specifically, SSG Mora
requested a sentence of a bad-conduct discharge and no time in confinement.

                              LAW AND DISCUSSION

       This court reviews sentence appropriateness de novo. United States v.
Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001) (citing United States v.
Cole, 31 M.J. 270, 272 (C.M.A. 1990)). “When we conduct a sentence
appropriateness review, we review many factors to include: the sentence severity;
the entire record of trial; appellant’s character and military service; and the nature,
seriousness, facts, and circumstances of the criminal course of conduct.” United
States v. Martinez, 76 M.J. 837, 841-42 (Army Ct. Crim. App. 2017). See also
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (“sentence
appropriateness should be judged by individualized consideration of the particular
[appellant]”) (internal quotation marks and citations omitted). This court has 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, 146 (C.A.A.F. 2010).

      We have given individualized consideration to this particular appellant. Our
consideration includes, but is not limited to, the nature and seriousness of the
offenses, appellant’s record of service, the record of trial, and other matters



3
  After being discharged from active duty, appellant joined the Army National
Guard. In 2007, he was honorably discharged from the National Guard and re-
entered active duty.


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MORA—ARMY 20170270

presented by appellant in extenuation and mitigation (to include Rules for Courts-
Martial 1105 and 1106 matters).

       Staff Sergeant Mora asserts that the punitive discharge he requested and
received at his trial is too severe. He argues that his “morally dubious” conduct was
more appropriate for airing on “mid-day television talk-shows” than being seriously
pursued under the military justice system. We disagree. Committing criminal incest
under applicable state laws—much less the gross violation of SSG Mora’s position
of authority over his teenage step-daughter—is serious misconduct. 4 Considering
the nature and seriousness of appellant’s misconduct, and the considerable
aggravating factors in this case, appellant’s sentence was not inappropriately severe.

       Staff Sergeant Mora’s own request for a punitive discharge at trial factors in
our decision today. Appellant’s request for a punitive discharge is probative of the
seriousness of his crimes and the appropriateness of his sentence. Appellant
requested the military judge sentence him to a punitive discharge and therefore to
less confinement than would otherwise be appropriate. The military judge sentenced
SSG Mora to far less confinement than appellant himself agreed to as a cap on his
punitive exposure. Appellant had carefully considered the discharge-for-
confinement trade-off when he personally requested as much from the military
judge.

      Under these circumstances, and considering the factors for sentence
appropriateness, to include the seriousness of his offenses, the record of trial, and
appellant’s character and service record, we find it is not inappropriate for the
appellant to receive the punitive discharge which he requested.

       The findings of guilty are correct in law and fact. The approved sentence is
not inappropriately severe. To the contrary, in light of all the evidence, appellant’s
sentence appears lenient.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

                                        FOR THE COURT:



                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court

4
 The seriousness of SSG Mora’s misconduct and making false official statements is
further exacerbated by his position of authority and trust as a noncommissioned
officer in the United States Army.


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