UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                        BURTON, HAGLER, and SCHASBERGER
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Major DAVID L. JERKINS
                          United States Army, Appellant

                                     ARMY 20140071

                             Headquarters, Fort Hood
                       Rebecca K. Connally, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Captain Cody Cheek, JA; Robert Feldmeier, Esquire (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Marc B. Sawyer,
JA; Captain Allison L. Rowley, JA (on brief).


                                        30 May 2018

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                        SUMMARY DISPOSITION ON REMAND
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BURTON, Senior Judge.

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of assault consumated by battery upon a
child, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928
(2012) (UCMJ). The panel sentenced appellant to a dismissal and confinement for
six months. The convening authority approved only so much of the sentence as
provided for a dismissal and confinement for five months.

       Reviewing the case under Article 66, UCMJ, we affirmed the findings of
guilty and the sentence on 30 November 2016. United States v. Jerkins, ARMY
20140071, 2016 CCA LEXIS 695 (Army Ct. Crim. App. 30 Nov. 2016) (mem. op.).
We considered the matters personally submitted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); they lack merit.

      In addition to the assault charge, the government originally charged appellant
with violating Article 92, UCMJ, for engaging in a sexual relationship with the
victim’s mother, an enlisted soldier. Three days before appellant was arraigned, the
JERKINS—ARMY 20140071

government withdrew this charge. After the military judge granted appellant’s
request to relax the rules of evidence, the government offered a general officer
memorandum of reprimand (GOMOR) that addressed the same conduct as the
original Article 92 offense. The decision on where the GOMOR would be filed had
not yet been made, and appellant had requested additional time to submit a rebuttal.
Appellant objected to the admission of the GOMOR because the filing decision had
not yet been made, but the military judge admitted it into evidence over his
objection. Our superior court found this decision to be an abuse of discretion that
was not harmless error. After affirming our decision as to findings, CAAF set aside
our decision as to sentence and remanded the case for sentence reassessment or
rehearing. Jerkins, 77 M.J. 225 (C.A.A.F. 2018).

       We are able to reassess the sentence in this case, and do so after a thorough
analysis and in accordance with the principles articulated by our superior court in
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and United States
v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). A Court of Criminal Appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “If the court can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of at least
a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.

       The improperly admitted GOMOR did not alter the nature of appellant’s
conduct or the penalty landscape. He remains guilty of beating his three-year-old
stepson with a belt, causing substantial injuries over much of the child’s body. Nor
does excluding the GOMOR from consideration affect our view of appellant’s
culpability. Compared to the aggravating circumstances in the record (e.g., the
victim’s tender years, the severity of injury, and appellant’s false claims about the
cause of injury), the impact of the GOMOR is relatively minor. Finally, this is not a
case where the only unfavorable evidence on the character of appellant’s prior
service was admitted in error. * Even after we exclude the GOMOR from


*
  The following negative information was in appellant’s Officer Evaluation Reports,
which were properly admitted. Appellant: should not be promoted; engaged in
“unsatisfactory performance during combat operations;” “repeatedly made false
statements and made attempts to manipulate events in his favor;” “spent his time
primarily on actions that served self rather than the mission;” demonstrated behavior
that did “not meet the expectations of any Soldier, let alone a field grade officer, and

                                                                        (continued . . .)




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JERKINS—ARMY 20140071

consideration, the record still contains considerable admissible evidence that
strongly counterbalances the favorable mitigation evidence offered by appellant
during sentencing.

       Based on our review of the entire record and appellant’s course of conduct,
we are confident the military panel would have imposed a sentence of at least four
months and two weeks. Accordingly, we AFFIRM only so much of the sentence as
that which provides for a dismissal and confinement for four months and two weeks.
We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings and sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Judge HAGLER and Judge SCHASBERGER concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       MALCOLM
                                       Clerk of Court
                                       Clerk of Court




(. . . continued)
[stood] in direct contradiction with the Army Values” of honor, integrity, and
selfless service; “failed to transition effectively to the rank, responsibility, and
capability required of a junior Field Grade Officer;” did not possess the mental and
emotional attributes of a leader; failed in the leadership actions of communicating,
decision-making, planning, executing, building, and motivating; and was ranked
number 58 out of 58 majors rated by the senior rater.


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