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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       MARCUS A. DANIELS JR.
                   PRIVATE (E-1), U.S. MARINE CORPS

                            NMCCA 201300459
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 19 September 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding Officer, 3d Battalion,
7th Marines, 1st Marine Division (REIN), MCAGCC, Twentynine
Palms, CA.
Staff Judge Advocate's Recommendation: LtCol D.R. Kazmier,
USMC.
For Appellant: CAPT Bree Ermentrout, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT James
Belforti, JAGC, USN.

                             28 April 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 19 September 2013, a military judge, sitting as a
special court-martial, convicted the appellant, pursuant to his
pleas, of disrespect toward a superior commissioned officer (1
specification), insubordinate conduct toward a noncommissioned
officer (10 specifications), provoking speech or gestures (10
specifications), disorder to the prejudice of good order and
discipline (7 specifications), disorderly conduct (1
specification), and communicating a threat (1 specification), in
violation of Articles 89, 91, 117, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 889, 891, 917, and 934. The
military judge sentenced the appellant to 1 year of confinement
and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and suspended all confinement
in excess of time served pursuant to a pretrial agreement.

      On 23 June 2014, the appellant submitted his first
assignment of error challenging the legal and factual
sufficiency of the appellant’s conviction, arguing the appellant
may not be competent to participate in his appellate defense and
that his mental condition may have existed at trial, if not at
the time of enlistment. Following an inquiry ordered by this
court and conducted in accordance with RULE FOR COURTS-MARTIAL 706,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), on 9 February
2015, the appellant submitted an additional assignment of error
seeking relief from his bad-conduct discharge because it is
inappropriately severe. After carefully considering the
pleadings of the parties and the record of trial, 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

     On 9 December 2013, the record of trial was docketed with
this court. On 22 January 2014, detailed appellate defense
counsel submitted the case without specific assignment of error.
On 14 April 2014, appellate defense counsel submitted a Non-
Consent Motion to Stay Proceedings due to discovering that the
appellant had been admitted to the inpatient psychiatric ward at
the Walter Reed National Naval Medical Center (WRNNMC).
Appellate defense counsel requested 30 days to “investigate
further and determine Appellant’s state of mind [and] to contact
treating physicians to determine whether Appellant can conduct a
defense.” The Government opposed the requested stay.

     On 14 April 2014, this court ordered a stay of appellate
review until 23 May 2014 or an earlier date if appellate defense
counsel informed the court that the stay was no longer
necessary. On 27 May 2014, this court granted the Appellant’s
Motion to Withdraw Merit Submission and further granted his
request for an enlargement of time to file assignments of error

                                 2
until 22 June 2014. Finally, on 27 May 2014, this court granted
the appellant’s Nonconsent Motion to attach an unsworn
declaration of Lieutenant Commander Benjamin R. Hershey, Medical
Corps, USN, the appellant’s treating psychiatrist at WRNNMC. In
his declaration, Dr. Hershey explains that the appellant’s
recently diagnosed illness “may have caused disturbances in [the
appellant’s] thinking, emotions and behavior that led directly
to his misconduct” and that “[d]ue to his current difficulties
. . . he can’t currently participate meaningfully in his
defense.” 1

     On 17 June 2014, appellate defense counsel filed a Non-
Consent Motion for DuBay Hearing and the Government filed its
formal opposition on 24 June 2014. In the motion, appellate
defense counsel cites Dr. Hershey’s letter and requests that
this court order a mental competency hearing pursuant to United
States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). In its
opposition, the Government provides that in light of Dr.
Hershey’s letter, “the United States does not oppose additional
factfinding to establish Appellant’s competency.” 2 On 23 June
2014, appellate defense counsel submitted the appellant’s Brief
and Assignments of Error arguing that in light of the
appellant’s recently diagnosed illness, this court should set
aside the findings and sentence or, at a minimum, stay
proceedings pending the outcome of a DuBay hearing.

     This court denied the motion for a DuBay hearing but
returned the record of trial to the Judge Advocate General for
delivery to an appropriate authority, who then may either set
aside the findings and sentence and dismiss the charges and
specifications, or refer the matter to a board that will conduct
such medical investigation as it deems necessary to comply with
this order, proceeding in accordance with R.C.M. 706.

     The matter was referred to a 706 Board (the Board) which
produced it full report on 29 December 2014. The matter was
returned to this court and the appellant sought to attach the
Board’s full report to the record. 3 In its report, the Board
opines that although the appellant now suffers from a mental
illness, he did not have a severe mental disease or defect at

1
    Motion to Attach of 19 May 2014 at 4.
2
    Appellee’s Response of 24 Jun 2014 at 2.
3
  Although the appellant’s initial request to attach the Board’s full report
(“Long Form”) was denied, upon reconsideration, that motion is granted.


                                        3
the time the misconduct was committed; that at the time of trial
the appellant was able to cooperate intelligently in his own
defense; and that the appellant was currently able to understand
and cooperate in his appellate defense.

     Additional facts necessary for the resolution of the
assignment of error are included below.

                                 Discussion

     The appellant argues that his misconduct, consisting of
violations while in the Navy Brig, was an early manifestation of
his illness. This argument is based upon the opinion of his
treating psychiatrist, who declared:

      [the appellant’s] severe mental illness may have
      caused disturbances in his thinking, emotions and
      behavior that led directly to his misconduct in the
      USMC. This opinion is based in part on his mother’s
      contention that the reported misconduct was
      uncharacteristic of PVT Daniels before the onset of
      his illness and in part on the nature of how [illness]
      presents over time. It should be noted that
      individuals with [this illness] routinely manifest
      more minor symptoms of their illness several months to
      years before the full onset of symptoms occurs, at
      which point it becomes clearly evident that the
      individual has a severe mental illness. 4

     Therefore, the appellant argues that since his behaviors
were likely the result of his eventual illness, this court
should exercise its authority under Article 66(c) and disapprove
the bad-conduct discharge. 5 This is especially so since the
military judge placed on the record that her decision to award 1
year of confinement was based in part on the fact that the
appellant laughed and seemed entertained as the specifications
were described and as the trial counsel argued for an
appropriate sentence.




4
  Appellant’s Brief of 9 Feb 2015 at 6.   Dr. Hershey was not a member of the
Board.
5
  The appellant’s assignment of error is limited to the severity of his
sentence. He does not argue, and considering the thorough 706 Board
conducted in this case, we do not find that his pleas were improvident.
                                      4
                           Sentence Appropriateness

     This court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Under
Article 66(c), UCMJ, a military appellate court “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 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) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180—81
(C.M.A. 1959)).

     Following our review of the entire record, we find that the
sentence is appropriate under the circumstances. While we give
due consideration to Dr. Hershey’s opinion, we also note the
comprehensive evaluation of the Board, which took place well
over 1 year later and after the appellant had been treated such
that he was showing “few if any symptoms” of mental illness. 6
During that evaluation, the Board interviewed the appellant, who
stated that at the time of his misconduct, he “knew what he was
doing when he was being disruptive and that he wanted to be
disruptive.” 7 He denied any paranoid ideation or delusional
thoughts about the brig staff. Instead, he just had “‘a bad
attitude and didn’t care anymore.’” 8 When asked specifically
about his misconduct in each specification, the appellant
replied that he was “just playing around,” that the brig staff
had “a bunch of punks,” and that he simply didn’t want to follow
their orders. 9 The Board also noted that, during its interview,
the appellant “smiled several times when he was read several of
the charges and specifications as if amused by his reported
disrespectful comments.” 10


6
     Report of 706 Board ICO Pvt Marcus Daniels, dtd 29 Dec 2014 at 29.
7
     Id. at 10.
8
     Id.
9
     Id. at 10, 11.
10
     Id. at 22.


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                                Conclusion

     Notwithstanding the appellant’s eventual diagnosis, and
based upon our review of the entire record, we conclude that the
approved sentence is appropriate under the circumstances. The
findings and sentence as approved by the CA are affirmed. 11

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




11
  We have considered the appellant’s first AOE and find that it lacks merit.
United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
                                      6
