UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                       CAMPANELLA. HERRING, and PENLAND
                             Appellate Military Judges

                            UNITED STATES, Appellee
                                      v.

                          Private E2 DENNIS BAILON
                          United States Army, Appellant

                                   ARMY 20160240

                        Headquarters, 7th Infantry Division
                          Sean F. Mangan, Military Judge
             Lieutenant Colonel James A. Nelson, Staff Judge Advocate

For Appellant: Major Andres Vazquez, Jr., JA; Captain Joshua B. Fix, JA (on brief);
Captain Katherine L. DePaul, JA; Captain Joshua B. Fix, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA; Captain Jonathan S. Reiner, JA (on brief).


                                    10 January 2017

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

PENLAND, Judge:

       A military judge convicted appellant, consistent with his pleas, of two
specifications of failure to obey his commander’s order not to leave Joint Base
Lewis-McChord and assault consummated by a battery, 1 in violation of Articles 92
and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892,
928. The military judge sentenced appellant to a bad-conduct discharge,
confinement for seven months and one day, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. In accordance with a pretrial agreement, the
convening authority limited appellant’s confinement to six months, and approved the
remainder of the sentence.




1
 Appellant pleaded guilty to this offense as a lesser-included offense to the charge
of abusive sexual contact, Article 120, UCMJ.
BAILON — ARMY 20160240

      We review this case under Article 66, UCMJ. Appellant raises one
assignment of error, which warrants brief discussion but no relief. We have
considered appellant’s matters personally submitted pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); they merit neither.

       Appellant now asserts the military judge determined the adjudged sentence
based upon the incorrect maximum punishment. The military judge indeed erred in
determining the maximum sentence. To the extent appellant asserts a causal
relationship between the error and his sentence, we see none.

       During the Care inquiry, 2 the military judge asked for the government’s views
regarding the maximum punishment, and trial counsel responded the maximum
punishment was a bad-conduct discharge, eighteen months confinement, forfeiture of
all pay and allowances, and reduction to the lowest enlisted grade. When asked
whether he agreed with this assessment, defense counsel said, “Yes, sir.” The
military judge then advised appellant of the maximum punishment, consistent with
the views of government and defense counsel.

       As both parties now belatedly agree, the maximum punishment–which we
determine de novo–is a bad-conduct discharge, eight months confinement, forfeiture
of all pay and allowances, and reduction to the lowest enlisted grade. 3 The military
judge and both parties at trial overstated the maximum confinement term by ten
months. Appellant does not claim ineffective assistance of counsel. Additionally,
his appellate counsel specifically disclaims any argument that appellant’s guilty
pleas were improvident. It is noteworthy that appellant also makes no post-hoc
effort to disturb the protections of his pretrial agreement, which allowed him to
avoid an Article 120, UCMJ, conviction.

       While the military judge erred in determining the maximum punishment, our
careful review of this record–including the aggravation evidence–yields confidence
that the error did not materially prejudice appellant’s substantial rights. United
States v. Baransky, 17 M.J. 54 (C.M.A. 1983).




2
    United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
3
 United States v. Phillips, 74 M.J. 20, 22-23 (C.A.A.F. 2015); United States v.
Amaya, 74 M.J. 264 (C.A.A.F. 2015); MCM, 1984, Change 1 (Exec. Order No.
12,473, 49 F.R. 17152 (13 Apr. 1984), as amended by Exec. Order No. 12,484, 49
F.R. 28825 (13 Jul. 1984)).


                                          2
BAILON — ARMY 20160240


                             CONCLUSION

    The finding of guilty and the sentence are AFFIRMED.

    Senior Judge CAMPANELLA and Judge HERRING concur.

                                  FOR THE COURT:
                                   FOR THE COURT:



                                   JOHN P. TAITT
                                  JOHN
                                   DeputyP.Clerk
                                            TAITTof Court
                                  Deputy Clerk of Court




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