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

                                   Before
                   J.A. FISCHER, D.C. KING, A.C. RUGH
                          Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         PHILLIP L. ODOM
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201500088
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 24 November 2014.
Military Judge: Col D.J. Daugherty, UMSC.
Convening Authority: Commanding Officer, Headquarters and
Service Battalion, Marine Corps Base, Camp Smedley D.
Butler, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol P.S. Rubin,
USMC.
For Appellant: LCDR Dillon Ambrose, JAGC, USN.
For Appellee: CAPT Diane L. Karr, JAGC, USN; LT James M.
Belforti, JAGC, USN.

                            31 August 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 special court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of conspiracy to commit assault consummated by
battery and one specification of assault consummated by battery
in violation of Articles 81 and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 881 and 928. The military judge sentenced
the appellant to confinement for a period of six months,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the adjudged sentence and,
pursuant to a pretrial agreement, suspended all confinement in
excess of 30 days.
     The appellant alleges two assignments of error (AOE):
(1) that the CA’s failure to address two closely-related cases
during post-trial review prejudiced the appellant, and (2) that
the appellant’s sentence is disproportionately severe to that of
his two co-conspirators.
     After careful consideration of the record of trial, the
parties’ pleadings, and the AOEs, 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

     For a time in late April and early May 2014, the Ocean
Breeze enlisted club, Camp Foster, Okinawa, Japan, could best be
described with the worst attributes of a Wild West saloon. On
26 April 2014 Lance Corporal (LCpl) P assaulted Private First
Class (PFC) S by punching him in the face as he was leaving the
Ocean Breeze club. At the same club a week later, PFC S and
LCpl D met over drinks and despaired of the attack on PFC S.
     LCpl D and PFC S were each military police and members of
the Provost Marshall’s Office (PMO), and they were increasingly
incensed over LCpl P’s assault on a PMO member. Expressing
qualms that counter-assaulting LCpl P may not be their best
idea, LCpl D and PFC S solicited the advice of the appellant –
also a military police and PMO member. Despite being “the
senior man on deck” and responsible for providing proper
guidance to PFC S and LCpl D, the appellant agreed to assist in
tracking down and confronting LCpl P. 1 The three members then
left the club for LCpl P’s barracks room.
     Using information he collected during the investigation
into the earlier assault, the appellant led the three
conspirators to LCpl P’s room. LCpl P awoke confused and,
believing the conspirators to be his roommate, opened his room
door for them.



1
    Record at 52, 93.


                                2
     The appellant was first into the room, grabbing LCpl P from
behind in a bear hug. The appellant and LCpl P struggled, and
appellant hit LCpl P in the back of the head to subdue him. The
fighters fell back onto the bed. The appellant placed LCpl P
into a “rear naked chokehold,” a move that exposed the victim’s
body so that PFC S could strike him several times in his ribs.
As this occurred LCpl D stood by watching. 2
     The fight ended as quickly as it began. The combatants
disentangled themselves, apologizing to each other as other
barracks residents arrived on scene. The first responders
included another sergeant (E-5) who arrived at the room
exclaiming, “What’s going on? I heard noises. I’m a sergeant.”
To which the appellant replied, “I’m a sergeant too” as he left
the room. 3
     Additional facts necessary for the resolution of the
particular assignments of error are included below.
                            Sentence Disparity

     The appellant argues that his sentence is disparately
severe when compared to the sentences received by his co-
conspirators, PFC S and LCpl D. We disagree.

     At a special court-martial the same military judge
sentenced PFC S to a reprimand, confinement for 45 days,
reduction to pay grade E-1, and forfeiture of $1,000.00 pay per
month for two months for his role in the assault. Pursuant to a
pretrial agreement, the CA disapproved the reprimand and
approved the rest of the adjudged sentence, suspending all
confinement in excess of 30 days. This was nearly the same
agreement the CA had with appellant.

     Subsequently, PFC S was processed for administrative
separation. While the CA recommended a discharge characterized
as “Other-Than-Honorable,” the separation authority, the CA’s
immediate superior in the chain-of-command, approved a
characterization of “General but Under Honorable Conditions.”
PFC S’s discharge was approved 11 March 2015.

      LCpl D was convicted by a summary court-martial for
similar offenses and was sentenced to restriction for 21 days,
reduction to pay grade E-2, and forfeiture of $572.00 pay per
2
  Although it was alleged that LCpl D filmed the melee, the record is unclear
as to whether this actually occurred.
3
    Record at 75.
                                      3
month for one month. In a supplemental action, the CA
disapproved the finding of guilt for assault consummated by
battery. Subsequently, LCpl D was processed for administrative
separation, but was retained in the service by approval of the
separation authority on 1 June 2015.

     The same CA convened and acted in all three courts-martial.
As the CA prepared to act in the appellant’s case, he was aware
of and reflected on LCpl D’s and PFC S’s cases.

     The appropriateness of a sentence generally should be
determined without reference or comparison to sentences in other
cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985). We are not required to engage in comparison of specific
cases “‘except in those rare instances in which sentence
appropriateness can be fairly determined only by reference to
disparate sentences adjudged in closely related cases.’” United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
Ballard, 20 M.J. at 283).

     “Closely related” cases are those that “involve offenses
that are similar in both nature and seriousness or which arise
from a common scheme or design.” United States v. Kelly, 40
M.J. 558, 570 (N.M.C.M.R. 1994); see also Lacy, 50 M.J. at 288
(citing examples of closely related cases as including co-actors
in a common crime, service members involved in a common or
parallel scheme, or “some other direct nexus between the
servicemembers whose sentences are sought to be compared”). The
appellant bears the burden of demonstrating that any cited cases
are “closely related” to his case and that the sentences are
“highly disparate.” If the appellant meets that burden, then
the Government must show that there is a rational basis for the
disparity. United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F.
2001); see also Lacy, 50 M.J. at 288. However, co-conspirators
are not entitled to equal sentences. United States v. Durant,
55 M.J. 258, 260 (C.A.A.F. 2001).

     Without deciding whether the sentences in the three cases
cited by the appellant are “highly disparate,” 4 we nonetheless
find a rational basis for the disparity. The appellant was by
far the senior member of the conspiracy. He led the other
conspirators to the victim’s room using information he collected
in his official role. He struck first, charging into the room
ahead of LCpl D and PFC S to grab, punch and choke the victim.
4
  The Government concedes that the cases of PFC S and LCpl D are “closely
related.” Government’s Brief of 15 Jul 2015 at 12.


                                      4
LCpl D did not physically participate in the fight; while PFC S
punched the victim only after the appellant restrained him with
a “rear naked chokehold.” Additionally, the appellant used his
rank to aid his escape, telling the first responders “I’m a
sergeant too” before leaving the scene. 5

     Given these significant distinctions, the Government has
met its burden to demonstrate a rational basis for any sentence
disparity.

                    Failure to Address Companion Cases

     The appellant alleges post-trial error in that the CA
failed to consider the cases of the appellant’s co-conspirators
during the clemency process and note the companion cases in the
promulgating order.

     Section 0151a(5) of the Manual of the Judge Advocate
General, Judge Advocate General Instruction 5800.7F (26 June
2012), directs CAs who order separate trials of companion cases
to indicate such an order in the action on the record in each
companion case. This court has held previously that this
section is meant to provide guidance in preparation of the
record of trial and does not create a substantive right for the
appellant. United States v. Bruce, 60 M.J. 636, 642
(N.M.Ct.Crim.App. 2004). Even if the section created a
substantive right, we find no prejudice under circumstances in
which this CA was aware of and considered the companion cases
prior to acting in the appellant’s case. 6 United States v.
Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998).

     Nonetheless,     the appellant is entitled to accurate court-
martial records.      United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App.     1998). Accordingly, we order the necessary
corrective action     in our decretal paragraph.




5
    Record at 75.
6
  The appellant asserts that the CA is currently under the misapprehension
that PFC S received a discharge characterized as “Other-Than-Honorable.”
Appellant’s Reply Brief of 21 Jul 2015 at 4. However, the separation
authority’s final approval of PFC S’s discharge was made on 11 March 2015
after the CA issued the promulgating order in this case on 2 March 2015. As
a result, the CA’s current misapprehension is immaterial to what he
considered at the time of post-trial review.
                                     5
                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed. The supplemental CMO shall correctly reflect the two
companion cases of LCpl D and PFC S.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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