              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        ANTHONY D. MCCALL
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201200461
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 12 December 2013.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: LtCol K.S. Woodard,
USMC.
For Appellant: CAPT Tierney M. Carlos, JAGC, USN.
For Appellee: Capt Corey A. Carver, USMC.

                             24 March 2015

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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:
     On 27 June 2012, a military judge, sitting as a general
court-martial, convicted the appellant, pursuant to his pleas,
of 15 specifications of wrongful possession of a controlled
substance in violation of Article 112a, Uniform Code of Military
Justice, 10 U.S.C. § 912a. The military judge sentenced the
appellant to confinement for two years, reduction to pay grade
E-1, and a dishonorable discharge. Pursuant to a pretrial
agreement, the convening authority (CA) suspended all
confinement in excess of 180 days.


      CORRECTED COPY ISSUED 27 MARCH 2015 TO CORRECT CAPTION
     On 30 May 2013, a panel of this court set aside the
findings and the sentence, finding the appellant did not receive
the benefit of a term in the pretrial agreement pertaining to
forfeitures, and authorized a retrial. United States v. McCall,
No. 201200461, 2013 CCA LEXIS 471 (N.M.Ct.Crim.App. 30 May
2013).

     At a rehearing on 12 December 2013, a military judge,
sitting as a special court-martial, convicted the appellant,
pursuant to his pleas, of the same 15 specifications of wrongful
possession of a controlled substance in violation of Article
112a, UCMJ. The military judge sentenced the appellant to
confinement for 180 days, hard labor without confinement for 15
days, reduction to pay grade E-1, and a bad-conduct discharge.
Pursuant to a new pretrial agreement, the CA disapproved the
hard labor without confinement but approved the remainder of the
sentence.

     On 28 October 2014, after our second review of the case, we
found the appellant was denied effective assistance of counsel
when his counsel failed to submit clemency matters as the
appellant had desired. United States v. McCall, No. 201200461,
2014 CCA LEXIS 805 (N.M.Ct.Crim.App. 28 Oct 2014). Accordingly,
we set aside the CA’s action of 6 March 2014 and remanded for
new post-trial processing. Id. We did not address the
appellant’s claim that his punitive discharge was
inappropriately severe.

     New processing has now been completed; after considering
matters submitted by the appellant, the CA took fresh action on
24 January 2015. He again disapproved the hard labor without
confinement but approved the remainder of the sentence,
including the bad-conduct discharge.

     The appellant raises no new assignments of error. We find
that the new CA’s action, where the CA has now considered
matters submitted by the appellant, cures the post-trial
processing error. We are thus left with a single asserted
error: that the bad-conduct discharge is inappropriately severe.

     After careful consideration of the record and the briefs of
the parties, we find that no error materially prejudicial to
substantial rights of the appellant occurred. We therefore
affirm the findings and the approved sentence. Arts. 59(a) and
66(c), UCMJ.


                                2
                                   Background

     In January 2011, the appellant stole a prescription pad
from his orthopedic surgeon’s office bearing the doctor’s name
and qualifications. The appellant used this pad to create
forged prescriptions on his personal computer which, in turn, he
used to wrongfully obtain meperidine, 1 an opiate-derivative pain
medication and Schedule II controlled substance. Between 24
April and 4 October 2011, the appellant forged 13 prescriptions
for 30 pills each and two prescriptions for 180 pills each —— a
total of 750 pills in 164 days.

     In extenuation and mitigation, the defense presented
evidence of the appellant’s years of service to the Marine
Corps, including rising to the rank of staff sergeant and combat
experience as an artilleryman; his good military character and
rehabilitative potential; and an extensive history of medical
problems, including several knee reconstructive surgeries.

                                   Discussion

     We review the appropriateness of a sentence de novo, 2 giving
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the
character of the offender.’” 3 Assessing sentence appropriateness
“involves the judicial function of assuring that justice is done
and that the accused gets the punishment he deserves”; clemency,
on the other hand, “involves bestowing mercy” and is a power
preserved for other authorities. 4

     The appellant asserts the approved bad-conduct discharge is
inappropriate because of his 16 years of service prior to
committing the offenses, his combat history, and “the fact that
his misconduct resulted from an addiction to prescription pain
medication [.]” 5 The appellant’s spiral from a staff
noncommissioned officer with years of faithful service to

1
    And Meperitab, a brand name for meperidine.
2
    United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
3
  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)).
4
    United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).


5
    Appellant’s Brief of 17 Jul 2014 at 11.


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addiction to pain killers and ultimately a period of
homelessness is indeed heart-rending and a cautionary tale.
Nevertheless, while these are matters for other authorities to
consider in deciding whether to bestow mercy, we find that,
given the seriousness of the offenses and the appellant’s prior
disciplinary history, 6 the sentence as approved is appropriate.

                                 Conclusion

      The findings and the sentence are affirmed.


                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




6
  In June 2010, the appellant was reduced from staff sergeant to sergeant as a
result of a summary court-martial for forging his commanding officer’s
signature on official administrative documents.

                                      4
