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

                                   Before
                  J.A. FISCHER, D.C. KING, T.P. BELSKY
                          Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       WILLIAM M. LEFEVERS
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201400312
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 15 April 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division (REIN), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj V.G. Laratta,
USMC.
For Appellant: Maj Jeffrey Stephens, USMCR.
For Appellee: LCDR Catheryne E. Pully, JAGC, USN; Capt
Matthew M. Harris, USMC.

                              18 June 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

KING, Judge

     Pursuant to his pleas, a military judge convicted the
appellant of one specification of making a false official
statement, one specification of aggravated assault, and one
specification of child endangerment, in violation of Articles
107, 128, and 134, Uniform of Military Justice, 10 U.S.C. §§
907, 928, and 934. The adjudged sentence included thirty
months’ confinement, reduction to pay grade E-1, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged. However, pursuant to the pretrial
agreement, the CA suspended all confinement in excess of twenty-
four months and agreed to waive automatic forfeitures for six
months provided the appellant establish an allotment for his
wife.

     On appeal, the appellant alleges that his sentence is
excessively severe. After careful examination of the record of
trial and the pleadings of the parties, we disagree. The
findings and sentence are correct in law and fact, and we find
no error materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ.

                           Background

     The appellant enlisted in the Marine Corps in 2007 at the
age of 19. His first deployment to Afghanistan came in
September 2010 and lasted until April 2011, where he served as a
machine gunner. During this deployment the appellant engaged in
“hundreds” of firefights with the enemy.

     After this deployment, the appellant began exhibiting
symptoms of post-traumatic stress disorder (PTSD). The
appellant nonetheless deployed to Afghanistan for a second time
from 24 February 2012 until 9 September 2012, during which the
appellant’s unit was required to medically evacuate countless
wounded civilian Afghan children who fell victim to improvised
explosive devices. Moreover, the appellant’s unit engaged in
several firefights, including a six-hour battle with the
Taliban, where the appellant displayed exceptional courage,
skill, and leadership.

     After returning from this deployment in September 2012, the
appellant’s PTSD symptoms worsened, resulting in his chain of
command cancelling his orders for a third deployment to
Afghanistan so that they could “keep an eye on him.” 1 His
leaders “talked to him multiple, multiple times about going to
talk to somebody about seeking treatment, telling him that it
was okay[, but the appellant] brushed it off, said, yes, he
will; never did. We did everything we could besides force him
to go to treatment, which is something that we can’t do to

1
    Record at 123.


                                2
anyone, and that would just be counterproductive if we could
anyway.” 2

    On the morning of 21 January 2013, the appellant was caring
for his two-year-old step-daughter CW while his wife, CW’s
mother, went to work. To help him sleep, the appellant had
taken Benadryl the night before and was still asleep when his
wife left for work between 0400 and 0500 that morning. What
happened next is detailed best in the appellant’s stipulation of
fact:

          I was awoken by [CW], my step-daughter. I was so angry
          that I grabbed [CW] by the hair and threw her down the
          stairs and she hit the wall . . . head first and I
          heard a thud as her cheek and side of her head hit the
          wall. I remember standing with a lump of [CW’s] hair
          in my right hand. I flushed the hair down the toilet
          in the upstairs bathroom because I didn’t want to look
          at it. [CW] was crying really loud. I could tell that
          she was scared and in pain. I then went down the
          stairs and grabbed her by one arm . . . and carried her
          back up the stairs and into the master bedroom and laid
          her on the bed for several minutes. [CW] continued to
          cry for what seemed like 10-15 minutes, and I was
          walking around the bedroom trying to calm down. I knew
          she was hurt and should get medical attention, but I
          was worried that I would get into trouble for hurting
          her. 3

    The appellant then called his wife and attempted to console
CW while waiting for his wife to return home. When his wife
returned home, he told her that CW had accidentally fallen down
the stairs.

    The appellant and his wife then took CW to the hospital
where CW was “whimpering and appeared to be in significant
distress or pain, and she had several bruises over her face,
some on her body, and . . . deformity of her upper right arm.” 4
It was later determined that CW had a “twisted-type” fracture of



2
    Id.
3
    Prosecution Exhibit 1.
4
    Record at 89.


                                     3
her humerus, commonly caused by “grabbing somebody and pulling
upward.” 5

    Based upon these injuries, hospital staff suspected that CW
had been abused, and contacted the Naval Criminal Investigative
Service (NCIS). While the appellant was still at the hospital,
a special agent from NCIS questioned him about CW’s injuries.
After being informed of his rights pursuant to Article 31(b),
UCMJ, the appellant initially told the special agent that CW had
accidentally fallen down the stairs. However, several minutes
later, during the same period of questioning, the appellant
admitted to pushing CW down the stairs. CW was then airlifted
to a Children’s Trauma Center where she was treated.

     Prior to trial in this case, and in response to a joint
motion from trial and defense counsel, the military judge
ordered that the appellant undergo a competency evaluation
pursuant to RULE FOR COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.). The report from this evaluation indicated that
at the time of the incident in question, the appellant’s PTSD
constituted a severe mental disease or defect, but concluded
that this disease or defect did not affect the appellant’s
competency or rise to the level of a defense to the appellant’s
conduct. Subsequently, the appellant entered into a pretrial
agreement with the CA, pleading guilty to the charges set forth
above. At a subsequent Article 39(a), UCMJ, session, during
which the appellant pleaded guilty to the offenses, the
appellant confirmed that, at the time he committed these
offenses, and despite the PTSD diagnosis, he knew what he was
doing and could have controlled his conduct if he had wanted to. 6
When asked if he was responsible for his actions despite his
PTSD, the appellant replied “absolutely, sir.” 7 After sentencing
the appellant, the military judge informed him that he likely
would have awarded a dishonorable discharge and a greater amount
of confinement were it not for “the significant contributions
you paid to our country.” 8




5
    Id. at 92.
6
    Id. at 32.
7
    Id. at 33.
8
    Id. at 155.
                                    4
                        Sentence Severity

     The appellant now argues that his sentence to a bad-conduct
discharge and confinement for 30 months was inappropriately
severe given the evidence of his good military character and the
fact that he suffered from PTSD caused by his combat
deployments. We disagree.

     In accordance with Article 66(c), UCMJ, this 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), which 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) (internal quotation marks and citation omitted).

     We have reviewed the entire record and we are mindful that
prior to this incident the appellant exhibited many of the
qualities we would expect of an outstanding Marine: effective
and courageous in combat, focused on the welfare of those in his
charge, and intent upon continuing to serve his country. We
also recognize that service-connected PTSD may have played a
role in generating the anger that he admits led to his
misconduct. Finally, the record reveals that the appellant is
truly remorseful for his misconduct and eventually took
responsibility for his actions, both before the military judge
and the CA.

     Still, we cannot ignore that his victim was a two-year-old
child who relied upon him for care and protection, nor that his
vicious actions injured that child and placed her life in peril.
Moreover, the appellant’s misconduct was far more than simply
reactive. Instead, after taking the time to remove the child’s
hair from his hands, he very likely exacerbated her injuries by
yanking her up the stairs where he let her lie in pain for
several minutes instead of taking her to the hospital because he
was “worried that [he] would get in trouble.” Finally, hours
later, when asked for the truth, the appellant lied. When we
consider the brutality of the initial assault, the danger in
which it placed its young victim, and the protracted misconduct
in which the appellant engaged to evade responsibility, we are
not persuaded that the sentence was inappropriate.

                                5
                           Conclusion

     While the appellant’s service to his country and the
onerous consequences that service may impose upon him may
certainly cry for clemency, we are not authorized to provide it.
Id. Therefore, the findings and sentence are affirmed.

     Senior Judge FISCHER concurs.

BELSKY, Judge (dissenting in part):

     This case falls square on the ill-defined edge of the
jurisprudential line dividing this court’s affirmative duty
under Article 66(c), UCMJ, to affirm only so much of a sentence
that “should be approved,” see Article 66(c), UCMJ, and the
prohibition against awarding clemency, which is solely the
province of the convening authority. United States v. Healy, 26
M.J. 394, 395 (C.M.A. 1988). The majority reasons that
affirming anything less than the approved sentence in this case
would constitute clemency. However, I find that the unique
facts of this case, when viewed in consideration with the
distinctive purpose of the punitive discharge in the military
justice system, require the court under Article 66(c), UCMJ, to
set aside the appellant’s bad-conduct discharge. For this
reason, I respectfully dissent.

                       Factual Background

     In addition to the facts set out in the “Background”
portion of the majority’s opinion, the record of trial also
reveals that until the moment of the instant offenses the
appellant was an exemplary Marine. He rated a 4.8 multiple
times on his Proficiency/Conduct marks, including his most
recent occasion before the instant offenses, and he had no
history of disciplinary problems while on active duty.
Additionally, there was no indication of any personal problems
or a history of violence in the appellant’s background before
the instant offenses. By all accounts, the appellant was “very
professional, respectful, [and] motivated,” and “wore the
uniform with a lot of pride.” Record at 129.

     After returning in 2011 from his initial deployment to
Afghanistan, the appellant was described as a “train wreck,” and
fellow servicemembers noticed that his experience during
deployment was “eating him up really bad.” Id. at 134. Upon
return from his second deployment in September 2012, the
appellant began to exhibit significant symptoms of post-

                                6
traumatic stress disorder (PTSD). The appellant had trouble
sleeping, and often could not even fall asleep without taking
either prescription sleep aides or over the counter medicines
such as Benadryl. The appellant’s wife also testified that she
would sometimes find the appellant at night by himself crying in
the corner of the couple’s garage because he “lost a lot of
buddies” on deployment. Id. at 111. Less than six months after
returning from this second deployment, the appellant committed
the instant offenses.

     The seriousness of the appellant’s PTSD, and the degree to
which it contributed to his conduct, were significant questions
for the investigating officer (IO) during the appellant’s
Article 32, UCMJ, investigation. In his report, the IO stated
that he had “reason to believe [the appellant] lacked mental
responsibility for certain charged offenses,” but concluded that
he had insufficient evidence to determine whether this would
constitute a defense at court-martial. Investigating Officer’s
Report of 6 Sep 2013 at 3, 5. Evidence from the appellant’s
medical records offered during the Article 32, UCMJ, proceeding
documented that the appellant suffered from flashbacks, night
terrors, and sleep walking. Id. at 4. The appellant also felt
“overwhelmed with debilitating anxiety,” and would often wake up
“agitated and ‘flipping out’ not recognizing his surroundings.”
Id.

      Prior to trial, and in response to a joint motion from
trial and defense counsel, the military judge ordered that the
appellant undergo a competency evaluation pursuant to RULE FOR
COURTS-MARTIAL 706, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
The report from this evaluation indicated that at the time of
the incident in question, the appellant’s combat induced PTSD
constituted a severe mental disease or defect, but concluded
that this disease or defect did not affect the appellant’s
competency or rise to the level of a defense to the appellant’s
conduct. Subsequently, the appellant pled guilty to each of the
charges on the charge sheet.

                           Sentence Severity

     The majority’s opinion aptly sets out the applicable law
this Court must follow when it is asked to decide the
appropriateness of a sentence in a given case. I only add that
the act of determining an appropriate sentence under Article
66(c), UCMJ, is an objective function of justice based on the
facts contained in the “entire record,” rather than a subjective
act of mercy or compassion that can be based on any reason or no

                                    7
reason. See United States v. Beatty, 64 M.J. 456, 458 n.4
(C.A.A.F. 2007); United States v. Key, 71 M.J. 566,573
(N.M.Ct.Crim.App. 2012). In light of this precedent directing
our review, three things in the appellant’s case objectively
compel me to conclude that setting aside the punitive discharge
is the appropriate judicial function under Article 66(c), UCMJ.

     First, there is no doubt that, at the time of the instant
offenses, the appellant suffered from severe combat-induced
PTSD. Indeed, this condition was so extreme that the
appellant’s superiors pulled his orders for a third deployment
to Afghanistan due to their concern for his mental well-being,
and a military psychiatrist classified his condition as a
“severe mental disease or defect” under R.C.M. 706. Appellate
Exhibit XV at 2. These facts demonstrate the unusually severe
nature of the appellant’s condition.

     Second, the record of trial reveals that, prior to the
instant offenses, the appellant did not have any history of
disciplinary problems or questionable behavior. The appellant,
in his five years of military service, did not have even the
slightest disciplinary infraction in his record – not a single
incident of a nonjudicial punishment or adverse counseling
notation. To the contrary, he was essentially a “5.0” Marine up
until the instant offenses, who repeatedly served courageously
in combat and earned the respect of his fellow Marines.
Additionally, CW’s mother testified at the presentencing
proceeding that, prior to the offenses of conviction, the
appellant was “great” with CW, see Record at 101, and the
appellant even referred to CW as his own daughter, id. at 124.
The appellant’s pristine history of military service and good
behavior prior to the instant offenses leads to the inescapable
conclusion that his severe PTSD significantly contributed to the
appellant’s reaction to CW waking him. Indeed, it is not a
stretch, given this unique record of trial, to conclude that the
appellant would not have committed the instant offenses but for
his suffering from PTSD. This fact weighs heavily in my
analysis under Article 66(c), UCMJ.

     Finally, examination of the history and purpose of the
punitive discharge convinces me that, under Article 66(c), UCMJ,
this type of punishment is not appropriate in this case. Having
no counterpart in the civilian criminal justice system, the
punitive discharge serves a unique penological purpose in
military justice. “Historically the punitive discharge came
into being at a time when retribution and deterrence were the
chief, if not the only, reasons for inflicting punishment.”

                                8
United States v. Ohrt, 28 M.J. 301, 306 (C.M.A. 1989). Unlike
the traditional criminal punishments available to a sentencing
authority, the punitive discharge was unique in that it was
intended as an excommunication of the offender with disgrace in
the eyes of his fellow servicemembers and the general public; a
special stigma for an individual who engaged in disgraceful
behavior while wearing the uniform of a United States
servicemember. Id. (quoting Colonel Winthrop’s explanation of
the punitive discharge as the “drumming (or bugling,) out of the
service, with the ‘Rogue’s March,’ in the presence of the
command.”). “The punitive discharge thus had two effects by
design: first, it punished by ejection from a familiar society
and by imposing social and economic hardships; and, second, it
deterred others by its visible, swift, effective and harsh
character.” Id. In light of this unique history and purpose of
the punitive discharge, as well as the availability of other
forms of punishment for a convicted servicemember, it follows
that there are certain circumstances, rare as they may be, when
an offender’s objectively criminal conduct does not warrant the
stigma of a punitive discharge. The appellant’s case presents
one of those rare circumstances.

     In the appellant’s case, it is doubtful that a punitive
discharge would serve either the purpose of retribution or
deterrence, given the unique character of this case. For one
thing, given that the appellant’s conduct was extremely
influenced by his PTSD, and occurred under conditions unlikely
to re-occur, it is reasonable to conclude that the stigma of a
conviction and a period of confinement serve as sufficient
retribution for the appellant’s conduct. Furthermore, I can see
no way in which a punitive discharge (any more than the other
punishments meted out in this case) will deter others from
engaging in similar acts given the specific circumstances that
motivated the appellant’s conduct. In light of these reasons, I
find a punitive discharge inappropriately severe under Article
66(c), UCMJ.

     Indeed, the punitive discharge is especially cruel in this
case as it would deprive the appellant access to much needed
veteran treatment services to address his extreme combat-
inducted mental illness, which lay at the root of his conduct. 9

9
   See 38 U.S.C. § 101(2)(defining an eligible veteran to be a person who
served in the active military and who was not discharged under conditions
other than dishonorable); 38 C.F.R. § 3.12(c)(2)(precluding benefits where
the former servicemember was discharged by reason of the sentence of a
general court-martial).


                                      9
In my opinion, there is something fundamentally unsettling to
punish a servicemember in such a way so as to deprive him of
needed medical care for a combat-induced mental health disorder,
when that punishment is based on conduct that was significantly
influenced by the disorder in the first instance, and from which
the servicemember would not have suffered but for his military
service. 10 In light of all these reasons, I find the punitive
discharge inappropriately severe.

     In concluding, I note that I do not ignore or minimize the
abhorrent nature of the appellant’s conduct and the suffering he
caused a most innocent of victim in this case, as well as his
efforts to deceive investigators about his actions. However, I
am obligated under Article 66(c), UCMJ, to consider not only the
nature and seriousness of offenses committed but also the
individual characteristics of the offender. United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982). After closely
considering all aspects of this case, I find under Article
66(c), UCMJ, that the reduction in rank and the period of
confinement are the only punishments that should be affirmed.
Accordingly, I would affirm the findings and so much of the
sentence as provides for thirty months’ confinement and
reduction to pay grade E-1.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




10
   To be sure, this Court has previously held that an appellant’s service in
combat, which resulted in PTSD, justified setting aside a punitive discharge
under Article 66(c), UCMJ. See United States v. Gober, No. 201100632, 2012
CCA LEXIS 759 at *4-5, unpublished op. (N.M.Ct.Crim.App. 29 Mar 2012); United
States v. Smith II, No. 200900239, 2009 CCA LEXIS 558 at *4, unpublished op.
(N.M.Ct.Crim.App. 17 Dec 2009). While I note that the offenses in these
cases (unauthorized absence, orders violations, and drug use) were not as
violent as the appellant’s conduct in this case, the logic of these cases
still remains – that an appellant’s service in combat, and ensuing mental
health disorders, are relevant in determining sentence appropriateness under
Article 66(c), UCMJ, especially when the record of trial demonstrates, as it
does in this appellant’s case, that those mental health concerns
significantly contributed to the criminal conduct in question.
                                     10
