         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201500270
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     MATTHEW R. BELTRAN
          Chief Aviation Electrician’s Mate (E-7), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Captain Andrew H. Henderson, JAGC, USN.
    Convening Authority: Commander, Navy Region Northwest,
                     Silverdale, Washington.
 Staff Judge Advocate’s Recommendation: Commander Edward K.
                     Westbrook, JAGC, USN.
  For Appellant: Lieutenant Jacqueline M. Leonard, JAGC, USN.
 For Appellee: Lieutenant Jetti L. Gibson, JAGC, USN; Lieutenant
                  James M. Belforti, JAGC, USN.
                      _________________________

                       Decided 14 February 2017
                        _________________________

    Before C AMPBELL , G LASER -A LLEN , and H UTCHISON , Appellate
                           Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   CAMPBELL, Senior Judge:
    At a contested general court-martial, officer members convicted the
appellant of an attempted lewd act upon a child over 12 but under 16 years
old, and attempted sexual acts upon a child over 12 but under 16 years old,
violations of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                      United States v. Beltran, No. 201500270


§ 880 (2012). After the members’ findings were announced, the military judge
conditionally dismissed the first specification and merged it with the second
specification.1 The convening authority approved the adjudged sentence of
five years’ confinement, forfeiture of all pay and allowances, and mandatory
dishonorable discharge.
    In four assignments of error, the appellant contends there is legally and
factually insufficient evidence to support the conviction, the military judge
abused his discretion in denying the challenge for cause against a court-
martial member, the punishment is too severe, and the court-martial order
(CMO) does not accurately reflect the conditional dismissal and merger of
specifications. Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ. We order corrective action to accurately
reflect the findings in the supplemental CMO.
                                  I. BACKGROUND
A. Civilian law enforcement cyber operation
    In Craigslist’s casual encounters section for the Skagit County,
Washington, region, the appellant attempted to meet young women by
describing himself as a 35-year-old man looking to give a “no-strings-
attached” massage:2
            Any young lady wanting a nsa massage? – m4w – 35
         Skagit/Island
             I travel and host. Is there any young lady out there
         interested in a massage? Could be a onetime never see you
         again or on going. I’m good-looking, sane, clean and disease
         free. We can meet first so you can see the truth. Satisfying you
         satisfys me. No obligation to go any further than massage.
         Have pic but you first. Looking for 18-29, skinny and pretty.
         You know you want a massage. I guarantee you won’t be
         disappointed. Lets give it a try.3
   Conducting an undercover law enforcement operation, a Skagit County
Sheriff’s Office crimes against children investigator, Detective L, responded


   1   This reduced the maximum confinement punishment from 35 to 20 years.
    2 The typographical and grammatical errors within the appellant’s Craigslist ad

and email correspondence to “Taylor” are largely quoted in their unedited, original
form.
   3   Record at 224-27; Defense Exhibit C.

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                      United States v. Beltran, No. 201500270


to the advertisement—posing as a minor with a complete on-line profile of a
local, 14-year-old girl named Taylor Pender.
    During their 23 September 2014 email correspondence, the appellant sent
sexually explicit messages before and after Detective L’s on-line persona
repeatedly explained she was only 14. Their messages discussed oral sex; how
Taylor felt “[g]uys [her] age have no skills” and she has been wanting to have
sex with “an older guy”; that he could come to her house since her “mom isn’t
home [until] late tonight”; and that she was “almost 15” but able to “date
guys who are much older [than her] who never know the difference”; that she
attended school on-line; and was prepared to meet him at a local park.4 More
than 90 minutes into their discussion, Taylor interjected payment for her
services by asking if the appellant would give her “a little donation[.]”5
Following price negotiations, she declined to meet the appellant that day due
to his lack of cash, but agreed to meet the next day, saying the sex would be
so great that he would “forget all about [her] age like all the others do.”6
    Having driven to the park during their discussions, the appellant
attempted to reopen negotiations, but Taylor explained she had another guy
“on the hook for some cash” and declined to meet until the following day.7
Detective L testified that she emailed Taylor’s unwillingness to meet on 23
September only when she became unable to participate further that
afternoon. Consequently, neither Detective L nor an arrest team went to
Hillcrest Park, the operation’s designated arrest site, despite the appellant’s
indication that he was already there to meet Taylor. Surveillance video
footage that the government presented at trial confirmed the appellant drove
and walked around the park on 23 September.
    Messaging with Taylor resumed the next morning and included similar
discussions of services, prices, and a meeting location. The appellant
expressed only one concern about their meeting:
         I have one request. Before I go into your house I want to do
         something that will prove to me you are not a cop or something.
         Yesterday I was [at] the bathrooms next the [tennis] court and
         noticed they were empty. If I go in and make sure its empty
         would you follow and flash or touch my c[***?] Anything to let


   4   Prosecution Exhibit 2 at 1.
   5 Id. at 2. Detective L testified that Taylor’s request for a “donation” was a
euphemism—“a pretty common term on Craigslist [used by] prostitutes asking for
money.” Record at 229.
   6   PE 2 at 2.
   7   Id.

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                        United States v. Beltran, No. 201500270


         me know your legit and not a cop. I’ll motion you to follow me. I
         hope you don’t think this is to weird I’m just really paranoid.8
    After agreeing to meet at a specific time, the appellant again went to the
park. The email correspondence continued while the appellant drove around
looking for Taylor. Detective Y, an undercover, civilian police officer who
apprehended the appellant, watched the appellant search the park for “over
forty-five minutes.”9 After the appellant began to drive away from the area,
Detective Y arrested him and recovered condoms, lubrication, flowers, an ice
chest, a Marshall’s gift card, and $7.00 in cash from the appellant’s car.
B. Member voir dire and challenge for cause
    In group voir dire, Lieutenant (LT) G indicated he could keep an open
mind about the accused’s guilt or innocence until all evidence had been
presented, agreed he would be satisfied having his own guilt or innocence and
sentence determined by a court member having his own present state of
mind, indicated he would be able to listen to explicit sexual testimony, did
not feel unable to sit as a member in the court-martial, and could follow all
instructions given by the military judge.
   During LT G’s individual voir dire, he explained that he knew two of his
family members were sexually assaulted as children, and that he had
previously served on a court-martial panel that convicted and adjudged 45
years of confinement for a Sailor who sexually assaulted his own teenaged
stepdaughter.
   LT G’s father-in-law once told LT G that “child sexual assault [happened]
to him” and other relatives of his generation decades earlier, but the
conversation involved essentially no further details.10 LT G later had a
conversation with his wife that he simply described as in the nature of “‘your
dad mentioned this, and now I know.’”11 LT G informed the military judge
that this family history would have no effect on his ability to serve as a fair
and impartial member in this case.
     Around the age of seven, LT G’s cousin, decades younger than LT G, was
sexually assaulted by a neighbor who was an older child. That abuse occurred
for a couple of years, and no charges were ever filed. LT G said—“with
conviction” according to the military judge’s contemporaneous observation on
the record—that the situation with his cousin would not impact his ability to


   8   Id. at 4.
   9   Record at 277.
   10   Id. at 129.
   11   Id. at 130.

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                       United States v. Beltran, No. 201500270


be a fair and impartial member in this case because the appellant’s alleged
offenses and his cousin’s situation, which involved “two children,” were
“completely different” and raised “a completely separate set of issues[.]”12
    LT G described the earlier court-martial in which he participated as a
panel member as “a very disturbing case” and said, “[a] lot of what happened
stuck with me[.]”13 He also admitted “it may have affected me differently if I
had daughters.”14 LT G further explained that he does not “think about that
case often,” but he thinks about it “about twice a year” upon seeing something
on the news related to a “parent-child sexual assault type thing[.]”15 When
the military judge asked whether participation in that court-martial would
“color[ ] at all [LT G’s] ability to be fair and impartial” in the present case, he
“pretty quickly and with a lot of conviction” indicated that it would not—as
the military judge immediately noted—before discussing why:16
         [LT G]: I—well, I thought you were going to ask that question
         next is why I answered quickly, sir. But they are dramatically
         different case[s] from what I read in the—in the charge sheet.
         They’re—with the exception of the age—ages of the victim and
         [the appellant in the other court-martial] and what is
         stipulated for the—for Taylor Pender in this charge sheet—
         MJ: And I’m—I’ll just jump on your word choice. Nothing is
         stipulated in there, right? Those are just allegations, right?
         [LT G]: Correct, Sir.
         MJ: Okay. Go ahead.
         [LT G]: What is . . . written on the charge sheet.
         MJ: Okay.
         [LT G]: That—that being—that would be the only similarity
         between the two cases; other than that, they’re—they’re very
         vastly different.
         MJ: So you’re comfortable you can sit and be fair and impartial
         in this case, based on the little you know about this case at this
         point?



   12   Id. at 135.
   13   Id. at 131.
   14   Id.
   15   Id. at 132, 138.
   16   Id. at 132.

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                         United States v. Beltran, No. 201500270


         [LT G]: Yes, Sir.17
   The military judge denied the appellant’s challenge for cause of LT G
based upon implied bias.
                                    II. DISCUSSION
A. Legal and factual sufficiency
   The appellant asserts that his conviction is legally and factually
insufficient because the government “failed to prove beyond a reasonable
doubt that [he] had the intent to engage in sexual acts with a minor[.]”18 We
disagree.
    We review questions of legal and factual 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, any reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt.” United States v. Day, 66 M.J.
172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324, 324
(C.M.A. 1987)). In applying this test, “we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
    The test for factual sufficiency is whether, “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” Washington, 57
M.J. at 399. While this is a high standard, the phrase “beyond a reasonable
doubt” does not imply that the evidence must be free from conflict. Rankin,
63 M.J. at 557 (citation omitted).
   To convict the appellant of the consolidated attempt specification, the
government had to prove:
         One, that on or about 24 September 2014, at or near Mount
         Vernon, Washington, the appellant did a certain act, that is,
         travel to Hillcrest Park after communicating indecent language

   17   Id. at 132-33.
   18   Appellant’s Brief of 17 Feb 2016 at 16.

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                     United States v. Beltran, No. 201500270


         via electronic means to Detective L, an undercover law
         enforcement officer whom the appellant believed to be Taylor
         Pender, a child under the age of sixteen years;
         Two, that he did the act with the specific intent to commit the
         offense of sexual assault of a child by exchanging cash and a
         Marshall’s gift card for the performance of sexual acts with
         Detective L, an undercover law enforcement officer whom he
         believed to be Taylor Pender, a child under the age of sixteen
         years;
         Three, that the act amounted to more than mere preparation,
         that is, it was a substantial step and a direct movement toward
         the commission of the intended offense; and
         Four, that the act apparently tended to bring about the
         commission of the offense of sexual assault of a child under the
         age of sixteen, that is, the act apparently would have resulted
         in the actual commission of the sexual assault of a child except
         for a circumstance unknown to the accused which prevented
         completion of that offense.
Record at 318-20; MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES
(2012 ed.), Part IV, ¶ 4b; Appellate Exhibit (AE) XXIX.
    The appellant concedes that “he negotiated a price for sexual acts” before
“dr[iving] to the location where [he and Taylor] were supposed to meet” while
he “possessed several items related to sexual intercourse.”19 But he contends
he “never had the intent to engage in sexual acts with a minor,” insisting
that, “[w]hen he traveled to the park that day, his intent was to first verify
that the woman he had spoken with online was of age” before he “continued
on to engage in sexual activity.”20
    He further argues that reasonable doubt about his guilt arises from his
communications with Taylor: his Craigslist ad’s explicitly “sought a woman at
least 18 years old”; his overt response—“‘You look like you must be 18. Your
18 right?’”—to receiving a photograph of Taylor demonstrated he did not
believe her claim of being fourteen; and there were “conflicting messages
about [Taylor’s] age,” such as her “taking courses online,” “need[ing] money to
pay her bills, and [her ability to] purchase alcohol and get into bars.”21




   19   Id. at 18.
   20   Id. at 15.
   21   Id. at 20.

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                     United States v. Beltran, No. 201500270


    Our assessment of the evidence differs from the appellant’s. Although she
responded to an advertisement for adults, Taylor quickly, and very clearly,
informed the appellant that she was 14—which Detective L described at trial
as a comment which ended responses from the vast majority of those she
encountered during her online operations. Taylor later reiterated she was 14,
and not 18, in response to the appellant’s comments about her photograph.
Taylor’s comments to the appellant about living with her mom, being home-
schooled, buying alcohol and getting into bars only because people did not
know she was underage, asking the appellant to bring her a wine cooler to
help her cope with her sexual inexperience were also consistent with
comments by an apparent 14-year-old.
   Rather than a desire to confirm whether or not Taylor was a minor, the
“expressed . . . concern for confirming [her] identity and proving she was the
person she made herself out to be”22 reflects only the appellant’s effort to
guard against his obvious, and very different fear—that Taylor might
actually be an undercover police officer.
   Weighing all the evidence presented at trial, and making allowances for
not having personally observed the witnesses, we are persuaded, beyond
reasonable doubt, that the appellant indeed believed Detective L’s online
persona, Taylor, was 14 years old when he took a substantial step towards
having sex with her. The government proved his specific intent to commit
sexual acts with a minor, and he is guilty of the Article 80, UCMJ, offense.
B. Member challenged for cause
   The appellant contends LT G should have been excused for cause based
on the theory that “most people would believe . . . he likely would be
prejudiced by his past experiences.”23
    RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(1), MCM, UNITED STATES
(2012 ed.), states a “member shall be excused for cause whenever it appears
that the member . . . [s]hould not sit . . . in the interest of having the court-
martial free from substantial doubt as to legality, fairness, and impartiality.”
This rule “encompasses both” demonstrations of “actual bias and implied
bias.” United States v. Warden, 51 M.J. 78, 81 (C.A.A.F. 1999) (citation and
internal quotation marks omitted). “A military judge’s determinations on the
issue of member bias, actual or implied, are based on the totality of the
circumstances particular to [a] case.” United States v. Nash, 71 M.J. 83, 88
(C.A.A.F. 2012) (citations and internal quotation marks omitted) (alteration



   22   Id.
   23   Id. at 30.

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                   United States v. Beltran, No. 201500270


in original). “The burden of establishing that grounds for a challenge exist is
upon the party making the challenge.” R.C.M. 912(f)(3).
    In our review, we consider whether each member for whom the
appellant’s challenge for cause was denied—and on whom no peremptory
challenge was exercised—demonstrated either actual or implied bias. See
United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000) (holding that
because “[a]ctual bias and implied bias are separate legal tests, not separate
grounds for challenge,” we are “not constrained by the plain-error doctrine,”
even where “defense counsel did not . . . specifically articulate a challenge” at
trial on a theory of actual or implied bias).
    Actual bias exists when a member’s bias “is such that it will not yield to
the evidence presented and the judge’s instructions.” United States v.
Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997) (citation and internal quotation
marks omitted). “Actual bias is reviewed subjectively, through the eyes of the
military judge or the court members.” Warden, 51 M.J. at 81 (citations and
internal quotation marks omitted). When grounds for challenge were properly
asserted at trial, a military judge’s decision to deny a challenge for cause for
actual bias is reviewed for an abuse of discretion. United States v. Leonard,
63 M.J. 398, 402 (C.A.A.F. 2006). The abuse of discretion standard calls for
more than a mere difference of opinion; the challenged action must be
arbitrary, fanciful, clearly unreasonable, or clearly erroneous. United States
v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011). A military judge receives latitude
on his factual determinations of actual bias because he personally observed
the member’s demeanor. Leonard, 63 M.J. at 402.
    “[I]mplied bias is viewed through the eyes of the public[,]” focusing “on the
perception or appearance of fairness of the military justice system.” Warden,
51 M.J. at 81 (citations and internal quotation marks omitted). Implied bias
exists “when most people in the same position [as the challenged member]
would be prejudiced.” Id. (citations and internal quotation marks omitted). A
military judge’s decision to grant or deny an implied bias challenge for cause
is reviewed with less deference than abuse of discretion, but more than de
novo review. United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010).
“[I]nstances in which the military judge’s exercise of discretion will be
reversed will indeed be rare” when he “considers a challenge based on implied
bias, recognizes his duty to liberally grant defense challenges, and places his
reasoning on the record[.]” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F.
2007). However, less deference is given when the military judge’s implied
bias analysis is not comprehensive. Id. at 278. “In cases where less deference
is accorded,” our “analysis logically moves more towards a de novo standard
of review.” United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016).



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                      United States v. Beltran, No. 201500270


   Although noting how the military judge here correctly “recited the test for
implied bias and discussed the liberal grant mandate,” the appellant avers
“the military judge failed to apply [them] appropriately” in analyzing the
defense’s implied bias challenge for cause against LT G.24
    The military judge placed on the record his reasoning for denying the
challenge. First, the military judge found that LT G’s “father-in-law is kind of
a red herring,” because “it happened 60 years ago, and [LT G] kind of heard
about it, and that’s the extent of his knowledge about that” since it was “not
an issue within the family.”25 Second, LT G’s prior service as a court-martial
member was in a case that involved “a stepdaughter, and it was actual
assault.”26 The military judge reiterated that LT G “doesn’t even think about
it now,” except “when he hears about a case like in the news or something,
[and] he says ‘oh, yeah, I sat on a jury about a case like that[.]”27 Further, LT
G “did not indicate any lingering emotional issues,” as evidenced by “his
affect[,] he wasn’t giving the standard answers that he knew he was supposed
to give, so to speak[.]”28 The military judge observed that LT G’s “answers
were quick and deliberate,” and “without any hesitation.”29 Third, the

   24  Id. at 27. The military judge articulated his understanding of the law before
either party challenged a member:
         R.C.M. 912 encompasses challenges based on both actual bias and
         implied bias, even if counsel don’t specifically use those terms.
         The test for actual bias is whether the member’s bias will not yield to
         the evidence presented and the judge’s instructions. The existence of
         actual bias is a question of fact; accordingly, I must determine
         whether it is present in a prospective member.
         Implied bias exists when, despite a credible disclaimer, most people
         in the same position as the court member would be prejudiced. In
         determining whether implied bias is present, I look to the totality of
         the circumstances. Implied bias is viewed objectively through the eyes
         of the public. Implied bias exists if an objective observer would have
         substantial doubt about the fairness of the accused’s court-martial
         panel.
         In close cases, military judges are enjoined to liberally grant defense
         challenges for cause. This liberal-grant mandate, however, does not
         apply to government challenges for cause.
   Record at 181.
   25   Id. at 185.
   26   Id.
   27   Id.
   28   Id.
   29   Id.

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                         United States v. Beltran, No. 201500270


military judge explained the abuse suffered by LT G’s cousin, “wasn’t some
kind of a festering family secret, a family issue that everyone is spun up
about and concerned about[,]” because LT G “didn’t give that impression at
all.”30 LT G instead “indicated specifically,” and “without hesitation,” that “he
could vote not guilty with a clean conscience.”31 The military judge concluded
that “while absolutely judges are enjoined to grant liberally defense
challenges for cause in close cases, this is not a close case, and that challenge
is denied.”32
    The military judge’s ruling primarily discussed how LT G subjectively
was not biased, thereby completing an actual bias analysis. We find no abuse
of discretion with regard to the military judge’s not excusing LT G for actual
bias and specifically concur that LT G was unequivocal in his statements of
impartiality and ability to follow the military judge’s instructions on the law.
But we more fully address whether LT G’s experience created an implied bias
requiring excusal by specifically addressing whether a member of the public
would perceive LT G’s participation in this court-martial as unfair in light of
his family history and previous court-martial member experience.
    “[A] member is not per se disqualified because [the member] or a close
relative has been a victim of a similar crime.” United States v. Daulton, 45
M.J. 212, 217 (C.A.A.F. 1996) (citations omitted).33 Although the Daulton
court found implied bias where two of the challenged member’s immediate
family members had been sexually abused, one was “approximately the same
age as the [alleged] victims” and the member’s “responses to the military
judge’s questions” of whether “she could separate her family’s experience
from appellant’s case” were “painfully honest but less than resounding.” 45
M.J. at 217-18. In United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007), a panel
member’s participation in a rape trial did not create implied bias, despite
that member’s spouse having been sexually assaulted “at least ten, and
perhaps as many as twenty years” before the court-martial—the court
specifically noted that the sexual assault “was never reported to law
enforcement, nor was it cause for [the spouse] to receive any counseling[,]”



   30   Id. at 185-86.
   31   Id. at 185.
   32   Id. at 186.
   33  See, e.g. United States v. Chappell-Denzer, No. ACM 38498, 2015 CCA LEXIS
234, at *9-10, unpublished op. (A.F. Ct. Crim. App. 5 Jun 2015) (finding no implied
bias where a member’s sibling “was the victim of an assault that occurred 17 years
ago,” as “they had not discussed the incident for about 15 years”), rev. denied, 75 M.J.
60 (C.A.A.F. 2015).

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                       United States v. Beltran, No. 201500270


and that member and his spouse “had spoken about the event only a few
times” and “not . . . for at least five years.” 64 M.J. at 296, 299, 304.34
    Neither does service in a previous court-martial, in which an accused was
convicted, per se disqualify a member from participation in a later court-
martial for similar offenses. See United States v. McDonald, 57 M.J. 747, 748,
751 (N-M. Ct. Crim. App. 2002), rev’d on other grounds, 59 M.J. 426 (C.A.A.F.
2004) (finding no implied bias from a member’s participation in McDonald’s
court-martial for sexual conduct towards a child, even though the member
had served as the bailiff for a prior court-martial of a different chief petty
officer for sexual harassment).
    We find that LT G’s specific level of exposure to, and personal impact
from, his two non-immediate family members’ instances of childhood sexual
abuse and serving as a member in the previous court-martial would not
prevent most people in LT G’s situation from sitting impartially in this case.
The totality of the circumstances in this analysis includes LT G’s noted affect
during voir dire, the timing of the abuse of his family members, the specific
relatively low levels of family and personal trauma LT G recounted about the
three previous scenarios, and the factual distinctions between the acts of
abuse against his family members and the victim in the previous court-
martial, as compared to the appellant’s alleged offenses. We find that the
fully-informed public would not doubt the fairness of LT G remaining on the
appellant’s court-martial panel.
C. Sentence appropriateness
   The appellant argues that five years’ confinement is inappropriately
severe and “does not reflect [his] character nor the nature of the crimes for
which he was convicted.”35
    We review the record for sentence appropriateness de novo. United States
v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “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)

   34  Cf. Terry, 64 M.J. at 304-05 (finding implied bias from the participation of
another member who also personally knew two rape victims because of that
member’s relationship with one of the crimes—against his “longstanding” romantic
partner whom he had planned to marry until she ended their relationship over the
rape, and later named the child that resulted from the rape after the member despite
ultimately pushing the member out of her life).
   35   Appellant’s Brief at 31.

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                      United States v. Beltran, No. 201500270


(citation and internal quotation marks omitted). “While [a Court of Criminal
Appeals] clearly has the authority to disapprove part or all of the sentence
and findings,” we may not engage in acts of clemency. United States v. Nerad,
69 M.J. 138, 145 (C.A.A.F. 2010).
    The appellant’s convictions triggered a mandatory dishonorable discharge
and his maximum punishment included potential confinement for 20 years.
With individualized consideration of the appellant, the nature and
seriousness of his offenses, his commendable 18-year record of service before
the offense, and all the matters within the record of trial, we find that his
adjudged sentence is appropriate under these circumstances.
D. CMO error
   The appellant correctly identifies the CMO’s failure to reflect that the
military judge, after findings, conditionally dismissed Specification 1 and
merged it with Specification 2. We review error in CMOs under a harmless
error standard. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim.
App. 1998). The appellant has not asserted, and we do not find, that this
error materially prejudiced his substantial rights. However, as he is entitled
to accurate court-martial records, id., we order corrective action in the
decretal paragraph.
                                III. CONCLUSION
    The findings and sentence as approved by the convening authority are
affirmed. The supplemental CMO will reflect that the military judge
conditionally dismissed Specification 1, and then consolidated Specifications
1 and 2 into a single specification for findings and sentence,36 to read as
follows:
         In that Chief Aviation Electronics Technician Matthew R.
         Beltran, U.S. Navy, Fleet Readiness Center Northwest, Oak
         Harbor Washington, on active duty, did, at or near Mount
         Vernon, Washington, on or about 24 September 2014, attempt
         to commit sexual acts upon a child who had attained the age of
         12 years but had not attained the age of 16 years, to wit: Chief
         Beltran travelled to Hillcrest Park in Mount Vernon,
         Washington to exchange cash and a Marshall’s gift card for the
         performance of sexual acts with Detective Theresa L, an
         undercover law enforcement officer whom Chief Beltran
         believed to be Taylor Pender, a child under the age of 16 years,




   36   Record at 388-89.

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                United States v. Beltran, No. 201500270


      and with whom he had previously communicated indecent
      language via electronic means.37
Judge GLASER-ALLEN and Judge HUTCHISON concur.
                                   For the Court



                                   R.H. TROIDL
                                   Clerk of Court




37   AE XXIX.

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