              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.

                   CHRISTIAN D. WILLE
INFORMATION SYSTEMS TECHNICIAN SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201400394
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 5 September 2014.
Military Judge: CDR R.P. Monahan, JAGC, USN.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, D.C.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: Maj Jeffrey S. Stephens, USMCR.
For Appellee: CAPT Diane L. Karr, JAGC, USN; Capt Cory
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:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification each of assault consummated by a battery and drunk
and disorderly conduct, in violation of Articles 128 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934. The
military judge sentenced the appellant to confinement for 90
days and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, except for the bad-
conduct discharge, ordered it executed. Pursuant to a pretrial
agreement, the CA suspended all confinement in excess of 30
days.

     The appellant asserts two assignments of error: (1) that
his sentence was inappropriately severe and, (2) that the CA’s
promulgating order inaccurately reflects the pleas and findings.
While we find the approved sentence appropriate, we agree that
the promulgating order is erroneous, and will order corrective
action in our decretal paragraph.

     After carefully considering the record of trial and the
submissions of the parties, we conclude that the findings and
the sentence are otherwise 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

        In October 2013 the appellant invited then-Information
Systems Technician Seaman (ITSN) VS and several other Sailors to
his apartment for a party. At the apartment, ITSN VS had
numerous alcoholic drinks, resulting in her lying on the living
room floor, intoxicated and nauseous. The appellant insisted on
moving her to his bedroom, despite her stating she wished to
remain where she was. Once in the bedroom, the appellant placed
ITSN VS on his bed, turned off the lights and locked the door.
He then lay down beside her. Shortly thereafter he began to
move his hand over her clothed leg. ITSN VS firmly told him to
stop, moving away from him as she did so. Undeterred, the
appellant again began touching her leg, this time moving his
hand up her inner thigh. ITSN VS told him to stop, fell off the
bed, and crawled to the locked door. As she pounded on the
door, the appellant rose from the bed and unlocked the door.
She immediately left the apartment.

     Approximately six weeks later, the appellant was out
drinking with friends when one of his neighbors, YL, invited the
group back to her apartment to eat. Around 0215, after 45
minutes of drinking at YL’s apartment, the appellant departed
for his own apartment to change clothes. He later returned
unnoticed and hid himself in YL’s bedroom closet. Sometime
later, as YL was undressing and preparing for bed, she found the
appellant passed out behind the clothes hamper in her closet.


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Screaming at him to get out, she dragged the appellant to the
door and ejected him from her apartment.

     Neither of the women had in any way indicated they welcomed
or consented to the appellant’s actions.

                    Sentence Appropriateness

     The appellant argues that his sentence of 90 days’
confinement and a bad-conduct discharge was inappropriately
severe. We disagree. In accordance with Article 66(c), UCMJ, a
Court of Criminal Appeals “may affirm only such findings of
guilty and the sentence or such part or amount of the sentence,
as it finds correct in law and fact and determines, on the basis
of the entire record, should be approved.” Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the appellant 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 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)). While
this court has a great deal of discretion in determining whether
a particular sentence is appropriate, we are not authorized to
engage in exercises of clemency. United States v. Lacy, 50 M.J.
286, 288 (C.A.A.F. 1999).

     The maximum sentence applicable to the offenses to which
the appellant pleaded guilty was confinement for 12 months,
forfeiture of all pay and allowances, reduction to pay grade E-
1, and a bad-conduct discharge. The range of permissible
punishment – from no punishment to the maximum - reflects that
some assaults and occasions of drunk and disorderly conduct are
more serious than others. Here the assault consummated by
battery involved the unwanted touching of a highly intoxicated,
junior Sailor by the much more senior appellant. After
assisting the victim in moving from the floor to his bed (in
spite of her protests), the appellant lay down beside her and
continued to engage in the unwanted touching despite her clear
and unequivocal demand that he stop. ITSN VS testified to the
lasting and serious impact the appellant’s action had on her.
While a sterile reading of the findings may indicate relatively
minor misconduct, the circumstances of the assault place the
appellant’s misconduct in its proper, more troubling light.



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     Likewise, the appellant’s drunk and disorderly conduct
involved activity far more serious than “minor, ‘NJP-level’
offenses.” 1 The appellant was not simply found passed-out in
his neighbor’s apartment. The record indicates he, in a state
of intoxication, left the neighbor’s apartment, only to return
unnoticed and hide in her bedroom closet. The neighbor’s victim
impact statement described the sleeplessness, hypervigilance,
fear, and anger resulting from the appellant’s misconduct. 2

     After review of the entire record, we find that the
sentence is appropriate for this offender and his offenses. To
grant sentence relief at this point would be to engage in
clemency, a prerogative reserved for the CA. Healy, 26 M.J.
395-96.

                         Error in Promulgating Order

     The promulgating order erroneously reflects that the
appellant pleaded not guilty to Charge I and its sole
specification. In fact, he pleaded as follows: “Not Guilty,
but Guilty to the lesser included offense of Article 128,
assault consummated by a battery, except as to the word ‘groin,’
substituting the word[s] ‘inner thigh.’” Also, the order
incorrectly states that the appellant pleaded, and was found,
guilty to Specification 2 of Additional Charge II.

     We test this error under a harmless-error standard. United
States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998)
(citation omitted). We find this error did not materially
prejudice the appellant’s substantial rights. The appellant
alleges no prejudice resulting from this error, and we find
none. However, the appellant is entitled to accurate court-
martial records. Id. Accordingly, we order the necessary
corrective action in our decretal paragraph.

                                  Conclusion

     The supplemental promulgating order shall correctly reflect
the appellant’s plea to the Charge and its sole specification.
The order shall also correctly reflect the plea and finding with
respect to Specification 2 of Additional Charge II. As



1
  Appellant’s Brief of 15 Jan 2015 at 6. “NJP” refers to nonjudicial
punishment imposed pursuant to Article 15, UCMJ.
2
    Prosecution Exhibit 2 at 1.
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corrected, the findings and the sentence as approved by the CA
are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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