               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    DANE H. DENOBRIGA
 AVIATION SUPPORT EQUIPMENT TECHNICIAN SECOND CLASS (E-5),
                        U.S. NAVY

                          NMCCA 201300168
                      GENERAL COURT-MARTIAL

Sentence Adjudged: 17 January 2013.
Military Judge: CAPT Tierney Carlos, JAGC, USN.
Convening Authority: Commander, Navy Region Europe, Africa,
Southwest Asia, Naples, Italy.
Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC,
USN.
For Appellant: Maj Paul Ervasti, USMC; Capt David Peters,
USMC.
For Appellee: Capt Matthew Harris, USMC.

                             27 March 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 panel of members with enlisted representation, sitting as
a general court-martial, convicted the appellant, contrary to
his pleas, of conspiracy and larceny, in violation of Articles
81 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881
and 921. The members sentenced the appellant to twelve months’
confinement, a fine of $20,000.00, and a dishonorable discharge.
The convening authority approved the sentence as adjudged, and
except for the punitive discharge, ordered the sentence
executed.

     The appellant has submitted one assignment of error,
asserting that the military judge erred by failing to properly
instruct the members as to the difference between a dishonorable
discharge and a bad-conduct discharge.

     After careful consideration of the record of trial, the
appellant's assignment of error, and the pleadings, we conclude
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 was committed. Arts. 59(a) and 66(c),
UCMJ.

                          Background

     The charges in this case arose out a fraudulent marriage
scheme that allowed the appellant to collect over $100,000.00 in
Basic Allowance for Housing (BAH) funds, and his “wife” to
obtain permanent resident status. The appellant was also
convicted of stealing $6,873.00 from United Services Automobile
Association (USAA) by submitting a false claim for a stolen
motorcycle. During his sentencing argument, trial defense
counsel discussed some of the collateral consequences from these
convictions, such as the appellant’s inability to qualify for a
Veterans Affairs loan and future difficulty obtaining a security
clearance. He also noted the stigma of the conviction itself
that would follow the appellant “for the rest of his life” and
argued against a punitive discharge so as to avoid giving the
appellant “another brand.” Record at 768-69.

     Prior to deliberations, the military judge instructed the
members that they could punitively discharge the appellant with
either a dishonorable or bad-conduct discharge, and that a
dishonorable discharge would deprive him of “substantially all
benefits administered by the Department of Veteran’s Affairs and
for that matter, the Department of the Navy.” Id. at 784-85.
The military judge further stated that a dishonorable discharge
was the more severe of the two, and “should be reserved for
those who in the opinion of the court should be separated under
conditions of dishonor after conviction of a serious offense of
either a civil or military nature warranting such a severe
punishment.” Id. at 785.

     During deliberations, the members asked the military judge
for clarification with regard to the “real world” differences

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between a bad-conduct discharge and a dishonorable discharge.
Id. at 797; Appellate Exhibit XXXVIII. The military judge
responded by stating:

     I can’t give you a definite answer on that. The only
     thing I can do is tell you that they’re both
     considered severe punishments. A dishonorable
     discharge is considered more severe than a bad conduct
     discharge. So it’s like the instruction I gave you.
     So a dishonorable discharge should be reserved for
     those who, in the opinion of the court, should be
     separated under conditions of dishonor after
     conviction of a serious offense of either a civil or
     military nature, warranting such a severe punishment.
     A bad conduct discharge is a severe punishment,
     although less severe than a dishonorable discharge and
     may be adjudged for one who in the discretion of the
     court warrants severe punishment for bad conduct. So
     that’s the only definition I can give you. I can’t---
     and there’s really no---that’s the only differences
     there are.

Record at 797.

     Neither trial counsel nor defense counsel objected to the
judge’s instruction, and the members subsequently handed down a
sentence that included a dishonorable discharge.

                           Instructional Error

     When a party fails to object to an instruction given or
omitted, that party forfeits1 the objection, absent plain error
by the military judge. United States v. Pope, 69 M.J. 328, 333
(C.A.A.F. 2011) (citation omitted); see also United States v.
Olano, 507 U.S. 725 (1993); United States v. Balboa, 33 M.J.
304, 307 n.3 (C.M.A. 1991) (citing R.C.M. 1005(f)). In order to
prove plain error, the appellant must make three showings; “(1)
[that] an error was committed; (2) the error was plain, or
clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights.” Pope, 69 M.J. at 333 (citing
United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F 2008)).


1
  Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the “‘intentional
relinquishment or abandonment of a known right.’” United States v. Harcrow,
66 M.J. 154, 156 (C.A.A.F. 2008) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938).

                                     3
     As a general rule, “‘courts-martial [are] to concern
themselves with the appropriateness of a particular sentence for
an accused and his offense, without regard to the collateral
administrative effects of the penalty under consideration.’”
United States v. McNutt, 62 M.J. 16, 19 (C.A.A.F. 2005) (quoting
United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988)).
However, when an evidentiary predicate exists to justify an
instruction on a collateral matter, it is appropriate for a
military judge to issue such an instruction. United States v.
Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). In the context of a
punitive discharge, the instruction should make clear to the
members the enduring stigma of a punitive discharge, including
the fact that it is a “severe punishment”, and “that it would
affect appellant's future with regard to his legal rights,
economic opportunities, and social acceptability.” United
States v. Rasnick, 58 M.J. 9, 10, (C.A.A.F. 2003) (internal
quotation marks omitted).

     In this case the military judge instructed the members
using recommended instructions from the Military Judges’ Bench
Book. Military Judges' Benchbook, Dept. of the Army Pamphlet
27-9 at 8-3-24 (Dishonorable Discharge) and 8-3-25 (Bad-Conduct
Discharge) (1 Jan 2010). In doing so, the military judge
informed the members that both types of discharge are “severe”
punishments and that a dishonorable discharge would essentially
deprive the appellant of all benefits administered by either the
Department of Veterans Affairs or the Department of the Navy.
Record at 783-84 (emphasis added). Although the military
judge’s response to the member’s question does not go into
intricate detail, the military judge is not required to list
every potential difference between the two types of discharge.
Such a requirement “‘would mean that [military judges] would be
required to deliver an unending catalogue of administrative
information to court members. . . . The waters of the military
sentencing process should [not] be so muddied.’” McNutt, 62
M.J. at 19 (quoting United States v. Quesinberry, 31 C.M.R. 195,
198 (C.M.A. 1962)). Accordingly, we find no error here.

                     Sentence Appropriateness

     Although appellant did not formally raise sentence
appropriateness as a separate assignment of error, he addressed
the issue in an extensive footnote to his brief, thus we address
it here.
     This court reviews the appropriateness of a sentence de
novo. United States v. Roach, 66 M.J. 410, 413 (C.A.A.F. 2008).
We engage in a review that gives “‘individualized consideration’

                                4
of the particular accused ‘on the basis of the nature and the
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)).

     Here, the appellant knowingly entered into a fraudulent
marriage with the intent to defraud both the military and the
U.S. Government. Furthermore, the appellant also committed
larceny against USAA by submitting a false claim. The
appellant’s thefts, which were committed over a three year
period, totaled over $100,000.00. For these reasons we find the
sentence adjudged appropriate under the circumstances of this
case. To grant relief at this point would be engaging in
clemency, a prerogative reserved for the convening authority,
and we decline to do so. United States v. Healy, 26 M.J. 394,
395-96 (C.M.A. 1988).

                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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