             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                                    Staff Sergeant KYLE A. BEITEL
                                         United States Air Force

                                                  ACM 38650

                                              2 November 2015

            Sentence adjudged 29 April 2014 by GCM convened at Seymour Johnson
            Air Force Base, North Carolina. Military Judge: Joshua E. Kastenberg
            (arraignment) and Donald R. Eller (sitting alone).

            Approved Sentence: Bad-conduct discharge, confinement for 9 months,
            and reduction to E-1.

            Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

            Appellate Counsel for the United States: Major Mary Ellen Payne; Gerald
            R. Bruce, Esquire; and Mr. Tyler Smith (civilian intern).1

                                                     Before

                                  HECKER, MITCHELL, and TELLER
                                      Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Senior Judge:

      A general court-martial composed of a military judge sitting alone convicted
Appellant, consistent with his plea, of sexual abuse of a minor, in violation of Article
120b, UCMJ, 10 U.S.C. § 920b. He was sentenced to a bad-conduct discharge,


1
 Mr. Tyler Smith was not a licensed attorney during his participation in this case. In accordance with AFCCA Rule
of Practice and Procedure 6.1, he was supervised by attorneys admitted to practice before this court.
confinement for 9 months, and reduction to E-1. The convening authority approved the
sentence as adjudged.

      On appeal, Appellant contends his sentence to a punitive discharge is
inappropriately severe. We disagree and affirm.

                                       Background

       In November 2012, the 24-year-old Appellant engaged in non-sexual
conversations through Facebook with a relative who he knew was 15 years old. On 9
December 2012, Appellant sent her several photographs of himself while he was in
various stages of undressing from his military uniform, as well as a movie of himself
masturbating. Over the next three hours, he engaged in a conversation with her through
Facebook’s electronic messaging system, asking her to send him nude photographs of
herself and providing her with instructions on how to do so. He also described certain
sexual activities that he would like to engage in with her. The two also discussed
meeting in person for a sexual encounter.

       After the images and chat logs were found by a family friend of the 15-year-old
child, civilian and military law enforcement began investigating the situation. For this
course of conduct, Appellant ultimately pled guilty to subjecting the child to sexual abuse
by intentionally exposing his penis and communicating indecent language to her.

                                Sentence Appropriateness

       During his guilty plea inquiry, Appellant told the military judge that he had been
drinking on 9 December 2012 and was also depressed due to relationship and financial
problems he was having with his girlfriend. When the military judge asked about his
level of intoxication, Appellant explained he knew what he was doing when he
communicated with the girl and could have avoided doing so. In his unsworn statement,
Appellant provided information on his inappropriate decision to engage in sexual
communications with a minor, including that he was under stress due to his relationship
and financial problems and that he elected to relieve some of that stress by engaging in
these communications. He also described his deployment to Afghanistan between
September and December 2011. During this time frame, his base was subjected to
significant rocket and mortar fire. On one day, Appellant and his crew members,
working without body armor, were required to run to bunkers on three occasions when
the base was under attack.

      Through a declaration submitted on appeal, Appellant states he was suffering from
undiagnosed post-traumatic stress disorder (PTSD) at the time he engaged in his
misconduct, which caused him to start drinking alcohol heavily upon his return, including
on the night in question. He states he was not diagnosed with this disorder until he


                                             2                                   ACM 38650
sought mental health treatment at the confinement facility following his court-martial.
He has not provided this court with any mental health records substantiating this claim as
he states his efforts to retrieve these records have been unsuccessful.2 Appellant
recognizes that PTSD would not constitute a legal justification or excuse for his
misconduct, but he argues that its significant role in his misconduct would have been
mitigating for sentencing purposes.3 He contends his sentence is inappropriately severe
in light of his diagnosis and asks this court to set aside his punitive discharge or, in the
alternative, order a sentence rehearing where this information can be presented.

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (citing United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982)). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010). In exercising our
discretion in this regard, we may consider the allied papers and an appellant’s post-trial
matters submitted to the convening authority pursuant to Rules for Courts-Martial
(R.C.M.) 1105 and 1106. See United States v. Hutchinson, 57 M.J. 231, 234 (C.A.A.F.
2002); United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).

       Here, Appellant’s mental health information was not submitted to the convening
authority before he took action in the case and thus is not found anywhere in the record of
trial. In a prior case, our superior court has upheld our refusal to accept similar
information submitted on appeal, holding we have “no duty” to receive such information
when it relates only to clemency. Healy, 26 M.J. at 397.4 The court also noted that the

2
  In one of his requests for an extension of time to submit his brief, Appellant’s counsel states the confinement
facility told Appellant it no longer had his records since he had been released from confinement, and directed
Appellant to the Department of Veterans Affairs. Personnel at that organization conducted a record check and were
unable to find his records, and directed Appellant to personnel at Lackland Air Force Base, Texas. Personnel there
acknowledged their computer system showed Appellant’s records were supposed to be in their office but the records
could not be found. Those personnel had no explanation for this discrepancy.
3
  Appellant is not contending that his post-trial diagnosis raises the issue of lack of mental responsibility at the time
of his offense, an issue that can, in some circumstances, be raised for the first time on appeal. See United States v.
Murphy, 50 M.J. 4, 15 (C.A.A.F. 1998).
4
  The Healy court noted that if psychiatric evidence of insanity has come to light after the convening authority’s
action, a service court can receive that information relative to the appellant’s mental responsibility for the crime, his
competence to stand trial, or cooperate with the appeal. United States v. Healy, 26 M.J. 394, 397 n.6 (C.M.A. 1988).
“Once admitted for this purpose, the information would be in the ‘record’ and presumably could be used by the
[service court] in performing its task of determining what sentence is appropriate.” Id. None of these scenarios
apply to the information provided by Appellant in this case.


                                                           3                                                ACM 38650
UCMJ provides no method by which an accused and his counsel can supplement the
record with such information or otherwise bring such information to the attention of a
service court. Id. at 396–97. From this omission, the court inferred, “Congress never
intended that a [service court] would be under any duty to receive additional information
on sentencing after the convening authority had acted.” Id. (emphasis added).

       By concluding a service court was not required to receive such information, our
superior court determined it “need not decide” whether a service court can choose to
grant a motion to supplement the record of trial with such information or whether an
appellant can ask a service court to remand the case to a convening authority for a
supplemental clemency review or sentence rehearing. Id. Indeed, in a later decision, our
superior court reiterated that the Healy decision did not say a service court “must not”
receive such evidence, simply that it was not “required to” do so. United States v. Boone,
49 M.J. 187, 192–93 (C.A.A.F. 1998).

       In a previous decision that did not expressly reference these precedents, we stated,
“Generally, after the convening authority has taken action, an appellant is not entitled to
submit matters from outside the record for our consideration on the issue of sentence
appropriateness,” and we then declined to consider a post-action psychological evaluation
offered for that purpose.5 United States v. Roberts, ACM S30264, unpub. op. at 2 (A.F.
Ct. Crim. App. 18 February 2005). However, we have more recently accepted and
considered such supplemental information as part of an appellant’s request that his
punitive discharge be set aside as inappropriately severe. See United States v. Flester,
ACM S31965, unpub. op. at 4 (A.F. Ct. Crim. App. 5 March 2013).

       In this case, we granted Appellant’s motion to submit his declaration, in the
absence of any objection from the Government. Even considering this information about
Appellant’s diagnosis, however, we find Appellant’s sentence is not inappropriately
severe. Appellant subjected a young relative to sexual conversations and sent her
sexually-explicit images of himself and solicited her to do the same. According to a
stipulation of expected testimony from the victim, this situation created a rift in her
family which was causing her distress. Appellant presented the military judge with
information on why he engaged in this behavior and also described the stressful situation
he experienced while deployed. When considering all the circumstances and the
information presented at trial, we find a diagnosis of PTSD would not further mitigate
Appellant’s actions.




5
  We then discussed whether this psychological diagnosis constituted “newly discovered evidence” entitling him to a
new “trial” on sentencing and evaluated his claim under Rule for Courts-Martial 1210(f)(2). United States v.
Roberts, ACM S30264, unpub. op. at 4 (A.F. Ct. Crim. App. 18 February 2005). The Government urges us to
follow that same path here, but we decline to do so.


                                                        4                                             ACM 38650
                                         Conclusion

       The approved finding and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. § 859(a), 866(c). Accordingly, the approved finding and
sentence are AFFIRMED.


             FOR THE COURT



             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             5                                  ACM 38650
