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

                                  Before
                 J.A. FISCHER, R.Q. WARD, T.P. BELSKY
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TITUS R. MAYO, JR.
            CULINARY SPECIALIST SEAMAN (E-3), U.S. NAVY

                            NMCCA 201400107
                         SPECIAL COURT-MARTIAL

Sentence Adjudged: 25 November 2013.
Military Judge: CAPT B.L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commanding Officer, USS CARL VINSON
(CVN 70).
Staff Judge Advocate's Recommendation: LCDR M.V. Rosen,
JAGC, USN.
For Appellant: Maj Jeffrey Stephens, USMCR.
For Appellee: Lt Ann E. Dingle, JAGC, USN.

                            14 October 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.

BELSKY, Judge:

     A military judge, sitting as a special court-martial,
convicted the appellant pursuant to his pleas of one
specification of unauthorized absence, one specification of
missing movement, one specification of disrespect towards a
superior commissioned officer, three specifications of making a
false official statement, two specifications of wrongful use of
marijuana, one specification of larceny, and one specification
of wrongful cohabitation, in violation of Articles 86, 87, 89,
107, 112a, 121, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 887, 889, 907, 912a, 921, and 934. The adjudged
sentence included 200 days’ confinement, reduction to pay grade
E-1, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged.

     On appeal, the appellant raises the following four
assignments of error:

    APPELLANT’S GUILTY PLEA TO MISSING MOVEMENT IN
    VIOLATION OF ARTICLE 87, UCMJ, WAS IMPROVIDENT.

    APPELLANT’S GUILTY PLEAS TO FALSE OFFICIAL STATEMENTS
    IN VIOLATION OF ARTICLE 107, UCMJ, WERE IMPROVIDENT.

    APPELLANT’S SENTENCE WAS INAPPROPRIATELY SEVERE FOR
    THIS OFFENDER AND HIS OFFENSES.

    THE CONVENING AUTHORITY’S ACTION IN THIS CASE
    ERRONEOUSLY MISSTATES APPELLANT’S PLEA TO CHARGE II
    AND ITS SOLE SPECIFICATION AS “NOT GUILTY” WHEN
    APPELLANT PLED GUILTY TO THIS CHARGE AND
    SPECIFICATION.

     In its answer, the Government rightfully concedes the error
that the appellant notes concerning the CA’s action, and we will
order corrective action regarding this issue in our decretal
paragraph. We will address below the appellant’s remaining
assignments of error.

                           Background

     The following facts were established during the appellant's
providence inquiry, and from the Stipulation of Fact entered
into evidence as Prosecution Exhibit 1.

     At the time of the offenses, the appellant was a culinary
specialist seaman attached to USS CARL VINSON (CVN 70), home
ported at Naval Air Station North Island, Coronado, California.
As an unmarried E-3, the appellant was required to live aboard
the ship, and was not permitted to collect Basic Allowance for
Housing (BAH). If married, the appellant would be entitled to
BAH at the with dependents rate, and would be eligible to live
in military offered housing. In an effort to illegally obtain
BAH, the appellant married AM, a high school friend from the
appellant’s home town of St. Louis, Missouri. The appellant’s

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sole intention in marrying AM was to receive BAH. AM never
moved from St. Louis to be with the appellant, and the appellant
never provided any financial support to AM. Nonetheless, the
appellant submitted his marriage certificate to his local
Personnel Support Detachment and, on 22 June 2012, he began
receiving BAH at the with dependents rate. Between June 2012
and September 2013, the appellant received approximately
$27,585.03 in BAH.

     At some point after his marriage to AM, the appellant began
dating ER. Eventually, ER became pregnant. In an effort to
find a place for the two of them to live, the appellant applied
for military housing. As part of that process, the appellant
signed and submitted a lease agreement to a property manager
with Lincoln Military Housing (LMH), a private contractor
responsible for managing military housing in the San Diego area.
In the agreement, the appellant stated that his wife, AM, would
reside with him. However, the appellant had no intention of
living with AM, but instead submitted the lease agreement with
the sole intention of having his girlfriend, ER, live with him.
After submitting the lease to LMH, the appellant and ER moved
into military housing and began holding themselves out as
husband and wife.

     The appellant also made false statements to his division
officer (DIVO) and his leading chief petty officer (LCPO)
regarding ER. On 5 March 2013, the appellant asked his DIVO for
early liberty, claiming that his pregnant wife was bleeding,
cramping, and needed to go to the hospital. In reality, the
appellant was referring to his girlfriend, ER. The following
day, the appellant asked his LCPO for liberty, claiming that his
wife had suffered a miscarriage, and that he needed to attend to
her medical condition. Again, the appellant was referring to ER
and not his wife.

     Finally, with regard to the missing movement offense, the
appellant knew that the CARL VINSON was scheduled to get
underway on 10 September 2013. He also knew he was required to
report to the ship at 0430 hours on 10 September in preparation
to get underway. At approximately 2000 hours on 9 September,
the appellant went to the emergency department at Balboa Naval
Hospital complaining of pain in his foot. Personnel at the
hospital declined to see the appellant and instructed him to
visit his primary care physician or the duty hospital corpsman
on board his ship. Instead of following this advice, the
appellant went to a civilian hospital in San Diego, where he was
treated for a slight fracture and a sprain in his foot. The

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hospital discharged the appellant at approximately 0800 on 10
September, by which time CARL VINSON had already gotten
underway.

                           Discussion

    1. Providence of the Appellant's Guilty Pleas

     This court reviews a military judge's decision to accept a
guilty plea for an abuse of discretion. United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). An abuse of
discretion occurs when there is a substantial basis in law or
fact for questioning the guilty plea. Id. This substantial
basis test requires us to look at “whether there is something in
the record of trial, with regard to the factual basis or the
law, that would raise a substantial question regarding the
appellant's guilty plea.” Id. at 322. On appeal, the appellant
alleges that there is a substantial basis for questioning his
guilty pleas to the sole specification of missing movement by
neglect and the three specifications of false official
statements. We will address each plea in turn.

    a. Guilty plea to missing movement by neglect

     The appellant alleges that his plea to missing movement is
improvident because the facts elicited do not establish
negligence. In the alternative, he argues that his statements
raised the possible defense of duress. We disagree.

     The appellant's answers during his providence inquiry, and
the record as a whole, establish that his conduct was negligent.
Before eliciting a factual basis from the appellant, the
military judge stated the elements of missing movement, and
defined for the appellant the term “through neglect.” The
appellant acknowledged that he understood the elements of the
offense and the term “through neglect,” and agreed that they
accurately described his conduct.

     During his providence inquiry, the appellant acknowledged
that he could have avoided missing movement if he followed the
advice of the medical personnel at the Balboa Emergency
Department and went to see the duty corpsman on board his ship.
He acknowledged that, although his foot was in pain, there was
no pressing need for him to go to a civilian hospital for
treatment rather than his ship, and that medical personnel were
available on the ship even at the late hour in question to
attend to the appellant. Further, the appellant stipulated that

                                4
his foot injury did not prevent him from moving with his ship.
PE 1 at 8. Finally, there is no evidence that the appellant
made any effort to contact a member of his command once he
realized that he would not be discharged in time to make his
ship’s movement. In short, as the appellant admitted, only his
own lack of care prevented him from making movement with his
ship. Consequently, we find an adequate factual predicate for
the element of neglect.

     Similarly, we do not find that the record raises a
potential duress defense such that the appellant's plea is
called into question. It is an established part of the guilty
plea process that if an accused's comments, or other matters in
the record, “sets up matter raising a possible defense, then the
military judge is obligated to make further inquiry to resolve
any apparent ambiguity or inconsistency.” United States v.
Phillippe, 63 M.J. 307, 310 (C.A.A.F. 2006) (citing United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A failure to
engage in this inquiry constitutes a substantial basis in law or
fact for questioning the guilty plea. Id. at 311. However,
once the military judge has accepted the pleas and entered
findings, an appellate court will not reverse those findings and
reject the plea unless it finds a substantial conflict between
the pleas and the accused's statements or other evidence of
record. United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F.
2007).

     In this case, the appellant stated during his providence
inquiry that he was “held” at the civilian hospital for several
hours. He now avers that this singular statement fairly raised
the possible defense of duress and that the military judge
should have resolved this apparent inconsistency before
accepting the appellant's plea. We disagree.

     As an initial mater, the appellant misinterprets the
applicability of the duress defense.1 The defense of duress
applies only when the accused has “a reasonable apprehension
that the accused or another innocent person would be immediately
killed or would immediately suffer serious bodily injury if the
accused did not commit the act.” RULE FOR COURTS-MARTIAL 916(h),

1
  If anything, the appellant's claim that the hospital “held” him for several
hours would raise the possible defenses of accident or inability. See RULE FOR
COURTS-MARTIAL 916(f) and (i), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
However, for the reasons stated in this opinion, the record makes clear that
the appellant's missing movement was the result of nothing more than his own
neglect, and nothing in the record required the military judge to discuss
these possible defenses with the appellant.
                                         5
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). If the accused
has a reasonable opportunity to avoid committing the offense
without subjecting himself or another to the harm threatened,
the defense of duress does not exist. Id.

     In the appellant's case, there is no evidence that the
appellant faced an immediately perceived threat of serious
bodily injury if he did not seek immediate medical attention for
his foot at the civilian hospital instead of his duty corpsman
on board his ship. Indeed, his own statements during the
providence inquiry belie his claim of duress. Throughout the
inquiry, the appellant stated that his foot injury was not so
severe that he could not have had it treated on the ship, even
at the late hour in question. There was nothing preventing him
from returning to the ship to see the duty corpsman, and he
admitted he simply made the ill-advised choice to go to a
civilian hospital. These facts do not raise even a “mere
possibility” that the appellant acted under duress (or any other
possible defense), and the military judge therefore was not
required to inquire further. See United States v. Ferguson, 68
M.J. 431, 434 (C.A.A.F. 2010) (stating that it “‘will not
overturn a military judge's acceptance of a guilty plea based on
a 'mere possibility' of a defense.’” (quoting United States v.
Davenport, 9 M.J. 364, 367 (C.M.A. 1980)). Accordingly, we do
not find a substantial basis in law or fact for questioning the
appellant's guilty plea to this offense.

     b. Guilty pleas to false official statements

     The appellant also challenges the providence of his pleas
to making false official statements to the property manager for
LMH, his DIVO, and LCPO, alleging that the statement to the LMH
employee was not official for purposes of Article 107, UCMJ, and
that his statements to his DIVO and LCPO were the result of
duress. Again, we disagree.

i. Whether the statement to LMH was “official”

     The scope of what constitutes an “official” statement for
purposes of Article 107, UCMJ, has been an ongoing source of
litigation in the military justice system. See United States v.
Passut, 73 M.J. 27 (C.A.A.F. 2014); United States v. Spicer, 71
M.J. 470 (C.A.A.F. 2013); United States v. Day, 66 M.J. 172
(C.A.A.F. 2008); United States v. Teffeau, 58 M.J. 62 (C.A.A.F.
2003); United States v. Holmes, 65 M.J. 684 (N.M.Ct.Crim.App.
2007). In Spicer, the Court of Appeals for the Armed Forces
explained that a statement can be official depending on either

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the position of the speaker or the listener “at the time
statement is made.” Id. Spicer explained that a statement can
be official if the speaker was “acting in the line of duty” when
making the statement, or the statement “directly relat[ed] to
the speaker's official military duties.” Id. Additionally, the
statement could be official if it was made to “a military member
carrying out a military duty," or made to a civilian
"necessarily performing a military function.” Id. Relying on
Spicer, the appellant alleges on appeal that the false statement
he made on the lease agreement he submitted to LMH was not
official because the LMH employee to whom the appellant
submitted the lease agreement was not performing a military
function at the time the appellant submitted the agreement.
Based on the record before us, we do not agree.2

     Reviewing the appellant's plea, we first note that the
military judge correctly stated all the elements of the offense,
and the appellant indicated both that he understood the elements
and that they correctly described his conduct. While the
military judge did not expressly define the term “official” for
the appellant, or explain to him Spicer's language concerning
the scope of the term official, “‘it is clear from the entire
record that the accused knew the elements, admitted them freely,
and pleaded guilty because he was guilty.’” United States v.
Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (quoting United
States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)).3 During his
providence inquiry, the appellant acknowledged that he submitted
the lease containing the false statement in order to receive
“military housing.” Record at 44. He also admitted that the

2
   The appellant also alleges that his statement was not official under
Article 107, UCMJ, because the statement “did not affect his entitlements to
a housing allowance or his pay in any way.” Appellant’s Brief of 11 Jun 2014
at 212. We need not address this argument, however, since we find a
sufficient factual predicate to establish that the statement was official
because the recipient was engaged in the performance of a military function
at the time he or she received the statement.
3
   Since Spicer, the drafters of the Military Judge's Benchbook have updated
paragraph 3-31-1 of the Benchbook, which addresses Article 107, UCMJ, to
include the language from Spicer explaining the term “official.” See
Military Judges' Benchbook, Dept. of the Army Pamphlet 27-9 at 350-51 (10 Sep
2014). We hasten to note, however, that the Benchbook, while providing
helpful guidance, is nonbinding, see United States v. Carson, 57 M.J. 410,
413 (C.A.A.F. 2002), and a military judge’s failure during a guilty plea to
provide an accused with a particular definition contained in the Benchbook is
not fatal provided, again, it is clear from the entire record that the
accused knew the elements, admitted them freely, and pleaded guilty because
he was guilty. Redlinski, 58 M.J. at 119; see also United States v. Caudill,
65 M.J. 756,758-59 (N.M.Ct.Crim.App. 2007).
                                      7
housing in question was “solely” for “military members [to] live
in.” Id. at 46. Further, the appellant acknowledged that the
person to whom he handed the lease agreement was “discharging
the functions of their particular office as property manager of
[LMH],” and that this person would provide him with military
housing if he submitted the lease containing the false
statement. Id. at 47-48. Finally, the appellant stipulated he
knew that unmarried service members and geo-bachelors were not
permitted to live in LMH, and that he intended to create the
false impression that his wife was living with him in order to
qualify for military housing. These facts provide “objective[]
support” for the conclusion that the statement in question was,
as the appellant agreed, official under Article 107, UCMJ. See
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)
(noting that the factual predicate for a plea is “sufficiently
established if ‘the factual circumstances as revealed by the
accused himself objectively support that plea.’” (quoting
Davenport, 9 M.J. at 367)). Accordingly, we find no substantial
basis in law or fact to question the appellant's guilty plea to
this offense.

ii.   Whether the appellant's statements to his DIVO and LCPO
      were the result of duress

     We also do not find that the appellant's false statements
to his DIVO and LCPO were the result of duress, as the appellant
now alleges.

     The appellant falsely told his DIVO and LCPO that he needed
leave to attend to his wife's emergent medical needs, when in
reality he wanted to attend to his girlfriend, ER. He made
these false statements because he believed his superiors would
not grant him leave if they knew the truth. There is nothing in
the record, other than the appellant's subjective belief, to
even imply that the appellant needed to lie to his superiors to
obtain leave to be with his girlfriend. Quite simply the
appellant could have “avoid[ed] committing the offense” and told
his superiors the truth and requested leave. R.C.M. 916(h). In
light of these facts, as well as the remaining facts contained
in the record, we conclude that the appellant's statements did




                                8
not raise the possibility of a duress defense, and the military
judge did not abuse her discretion in accepting his plea.4

      2.   Sentence Appropriateness

     Under Article 66(c), UCMJ, we independently review
sentences within our purview and only approve that part of a
sentence which we find should be approved. United States v.
Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). “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 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)).

     The appellant argues that his sentence was inappropriately
severe given his conduct. However, the appellant's conduct
spanned more than a year during which he lied to qualify for
military housing, unjustly received more than $27,000 in BAH,
and lied to his superiors. Based on the scope and nature of
this conduct we have no reservations concluding that 200 days'
confinement, reduction to pay grade E-1, and a bad-conduct
discharge at a special court-martial was not an inappropriately
severe sentence. Granting sentence relief at this point would
be to engage in clemency, a prerogative reserved for the CA, and
we decline to do so. Healy, 26 M.J. at 395-96.

                                 Conclusion

     The findings and sentence as approved by the CA are
affirmed. We direct that the supplemental court-martial order


4
   The appellant also claims that vague references he made during his unsworn
statement to attempting suicide also raised the possibility of a duress
defense to these specifications. While our superior court has acknowledged
that a threat of suicide may, depending on the circumstances, give rise to a
duress defense, see United States v. Hayes, 70 M.J. 454, 461-63 (C.A.A.F.
2012), such circumstances are not present in this case. In any event, even
if such statements gave rise to a possible duress defense, the military
judge, after hearing those statements, reopened the providence inquiry,
explained the defense of duress to the appellant as it related to several of
his pleas, and obtained assurances from the appellant and his counsel that
the defense was not applicable. Thus, we are satisfied the military judge
fulfilled her responsibilities and did not abuse her discretion in accepting
the appellant's pleas.
                                      9
reflect that the appellant plead guilty to the specification
under Charge II.

    Senior Judge FISCHER and Senior Judge WARD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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