UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class TRAVIS J. GREGG
                          United States Army, Appellant

                                  ARMY 20121119

                            Headquarters, Fort Stewart
                 Tiernan Dolan (arraignment and motions hearing)
            G. Bret Batdorff, Military Judge (motions hearing and trial)
            Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Captain Ian M. Guy, JA; William E. Cassara, Esq. (on brief);
Captain Michael J. Millios, JA; William E. Cassara, Esq. (on reply brief) .

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean Fitzgibbon, JA; Captain Timothy C. Erickson, JA (on brief).


                                     29 June 2015

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                               SUMMARY DISPOSITION
                              ---------------------------------

LIND, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of conspiracy to commit aggravated sexual assault, aggravated
sexual assault, abusive sexual contact (two specifications), and indecent acts in
violation of Articles 81 and 120, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 881, 920 (2006 & Supp. IV 2011). The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for
24 months, and reduction to the grade of E-1.

       This case is before the court for review under Article 66, UCMJ. Appellant
alleges two assignments of error. Appellant’s complaint that his sentence is
disproportionately severe when compared to the punishment received by his coactors
merits discussion, but not relief.
GREGG—ARMY 20121119

                  FACTS AND PROCEDURAL BACKGROUND

       Late at night on 29 October 2011, 16-year-old Ms. AB snuck out of her home
to meet Private First Class (PFC) James Banks, whom she was dating. They went to
a party at the home of PFC Stephen Perkins and his wife. There was copious
drinking going on at the party. Ms. AB drank hard alcohol and subsequently became
dizzy and lightheaded. She lay down on a couch. Private First Class Banks came
over to inform Ms. AB that appellant told him he wanted to have sex with her. Ms.
AB said “no” and that she only wanted to have sex with PFC Banks. The next thing
Ms. AB remembered was being awakened by PFC Banks who asked Ms. AB if she
was really drunk. She answered, “yeah.” Private First Class Banks then went and
told appellant to give them five minutes and then come upstairs. Private First Class
Banks helped Ms. AB up the stairs and into a bedroom. Ms. AB’s and PFC Banks’
clothes came off and they began having sex on a futon. Ms. AB saw a person who
she could not identify in the doorway. She said , “I can see you,” and began laughing
with PFC Banks. Ms. AB did not remember anything else until she became
“conscious again” feeling a penis in her mouth and “something” on her vagina. She
heard a voice other than PFC Banks. Ms. AB next awoke on the floor. She vomited
on the futon and heard other people in the room laugh. She heard multiple voices
she could not identify and tried to crawl away. A person grabbed her and said,
“where are you going?” Ms. AB next remembered having a conversation with PFC
Banks and telling him that he did not care. Private First Class Banks told her he did
care. Ms. AB fell out of consciousness again. She awoke to hear PFC Perkins’ wife
come into the room to find PFC Banks and Ms. AB spooning, and her husband with
his pants down. Ms. AB knew there was more than one person in the room , but she
could not identify anyone other than PFC Banks. She testified she did not consent to
any type of sexual conduct with anyone other than PFC Banks.

       Appellant made a statement to CID and admitted he was at the party with PFC
Banks, Ms. AB, PFC Perkins, PFC Perkins’ wife, and PVT Nicholas Miskiewicz,
among others. Appellant stated he had approximately 20 twelve-ounce beers and
that he and everyone else were “wasted.” Appellant described himself as stumbling,
his speech slurred, with blurred vision. He said Ms. AB was as intoxicated as he
was. At some point, appellant told PFC Banks he wanted to have sex with Ms. AB.
Private First Class Banks said he would ask her and later told appellant he was
taking Ms. AB upstairs and to come up after five minutes. Appellant went upstairs
and saw Ms. AB and PFC Banks laying down. He watched for a few minutes.
Private Miszkiewicz later came up and stood by appellant. Private First Class Banks
motioned for appellant to come over and he did. Appellant “played with” Ms. AB’s
breasts and had sexual intercourse with Ms. AB. Appellant and PFC Banks took
turns having sex with Ms. AB while Ms. AB performed oral sex on the other. While
appellant was having sex with Ms. AB, P VT Miszkiewicz tapped him on the
shoulder indicating he wanted to have sex with Ms. AB. Appellant mo ved away to
allow him to have sex. Appellant stayed in the room . At some point, PFC Perkins
came into the room. Appellant later had Ms. AB perform oral sex on him again and


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GREGG—ARMY 20121119

also had sex with her again. Appellant ejaculated on his hand, went to the bathroom
to clean up, and then went downstairs. Appellant told CID the sexual activity that
occurred was consensual.

       Charges against appellant, PFC Banks, PVT Miszkiewicz, and PFC Perkins
were referred to general court-martial. Each was charged with conspiring with the
others to commit aggravated sexual assault against Ms. AB , who was substantially
incapacitated; aggravated sexual assault against Ms. AB, who was substantially
incapacitated; abusive sexual contact by penile penetration of Ms. AB’s mouth while
she was substantially incapacitated; and indecent acts for engaging in this sexual
conduct in the presence of others. Private First Class Perkins was also charged with
adultery. Private First Class Banks was also charged with two specifications of
simple disorders under Article 134, UCMJ, for providing alcohol to a minor and for
concealing Ms. AB in the trunk of his vehicle when entering Fort Stewart.
Appellant and PVT Miszkeiwicz were each charged with an additional specification
of abusive sexual contact for touching Ms. AB’s breasts while she was substantially
incapacitated. Appellant was also charged with another specification of aggravated
sexual assault against Ms. AB, who was substantially incapacitated, and another
specification of abusive sexual contact by penile penetration of Ms. AB’s mouth
while she was substantially incapacitated.

       Appellant was tried first. As part of its case in chief, the government
introduced his oral statement to CID. He did not testify in his trial. Appellant was
convicted of all of the charged offenses except one aggravated sexual assault
specification and one abusive sexual contact specification. He was sentenced to a
dishonorable discharge, 24 months confinement, and reduction to the grade of E-1.

       Private First Class Banks, PFC Miskiewicz, and PFC Perkins were tried after
appellant. All were found guilty of indecent acts, but not guilty of conspiracy,
aggravated sexual assault, abusive sexual contact, or adultery. Private First Class
Banks was also found guilty of one specification of a simple disorder under Article
134, UCMJ, for entering Fort Stewart with Ms. AB in the trunk of his vehicle. He
was sentenced to 30 days confinement and reduction to the grade of E-1. Private
First Class Perkins was sentenced to confinement for 75 days; and PVT Miszkiewicz
was sentenced to confinement for 30 days.

                                        LAW

       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.” UCMJ art. 66(c). In making
sentence appropriateness determinations, we consider , among other things, the
character of the offender and the nature and seriousness of his offenses. United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citing United States v. Mamaluy,
10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 181 (1959)). We have wide discretion


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GREGG—ARMY 20121119

in determining whether a particular sentence is appropriate , but we are not
authorized to award clemency. United States v. Lacy, 50 M.J. 286, 287-88 (C.A.A.F.
1999); United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010); United States v.
Healy, 26 M.J. 394, 395-96 (C.M.A. 1988).

       Service Courts of Criminal Appeals “engage in sentence comparison with
specific cases ‘. . . in those rare instances in which sentence appropriateness can be
fairly determined only by reference to disparate sentences adjudged in closely
related cases.’” Lacy, 50 M.J. at 288 (quoting United States v. Ballard, 20 M.J. 282,
283 (C.M.A. 1985)). Appellant bears the burden of proving: (1) the cases are
“closely related;” and (2) the sentences are “highly disparate .” Id. If appellant
meets both prongs, the burden shifts to the government to show a rational ba sis for
the disparity. Id. “Closely related” cases include those which pertain to “coactors
involved in a common crime, servicemembers involved in a common or parallel
scheme, or some other direct nexus between the servicemembers whose sentences are
sought to be compared.” Id. Whether a sentence is “highly disparate” is determined
by comparison of the adjudged sentences taking into account “the disparity in
relation to the potential maximum punishment.” Id. at 289; see also United States v.
Roach, 69 M.J. 17, 21 (C.A.A.F. 2010).

       Turning to this case, we take judicial notice of the promulgating order s for
each of appellant’s co-accused’s trials. 1 We have also examined their records of
trial. Appellant, PFC Banks, PFC Perkins, and PVT Miskiewicz all en gaged in
sexual conduct with the same victim who was intoxicated to some level while in
each other’s view and presence. All four were initially charged with conspiracy to
commit aggravated sexual assault, aggravated sexual assault, and abusive sexual
contact in addition to indecent acts based on the same incident. On the basis of this
review, we find appellant has met his burden of proving his coactors’ cases are
“closely related.”

       In assessing whether appellant has met his burden to show his sentence is
“highly disparate” in comparison with the sentences of his three co-accused, we note
all four were tried by general court-martial for similar offenses and all four faced a
dishonorable discharge, but only appellant was sentenced to one. Under these facts,
we assume appellant has met his burden to show his sentence is highly d isparate.


1
 General Court-Martial Order Number 44, Headquarters, Fort Stewart, Georgia,
dated 23 September 2013 (Private E-1 Nicholas Miszkiewicz); General Court -
Martial Order Number 15, Headquarters, 3rd Infantry Division and Fort Stewart,
Georgia, dated 12 March 2013 (Private First Class James Banks); General Court -
Martial Order Number 25, Headquarters, Fort Stewart, Geor gia, dated 9 May 2013
(Private First Class Stephen A. Perkins).




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GREGG—ARMY 20121119

       Finding the offenses closely related and assuming the sentences are highly
disparate, we nonetheless hold the government has demonstrated a rational basis to
justify the differences in the relevant sentences. While all accused were convicted
of indecent acts, only appellant was convicted of the serious offenses of conspiracy
to commit aggravated sexual assault, aggravated sexual assault, and two
specifications of abusive sexual contact. That the fact finders in the trials of
appellant’s co-accused harbored reasonable doubt as to the conspiracy, aggravated
sexual assault, and abusive sexual contact offenses provides no basis to impeach the
findings or sentence in appellant’s case. See United States v. Garcia, 16 M.J. 52
(C.M.A. 1983). 2 Furthermore, after the judge merged several of appellant’s
convictions for sentencing, appellant faced a maximum sentence of , inter alia,
60 years confinement and a dishonorable discharge in comparison to his co-accused,
who faced a maximum of, inter alia, 5 years confinement and a dishonorable
discharge. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶¶ 5.e,
45.f.(2), (5), (6). 3 We find appellant’s sentence appropriate and not excessively
severe for the offenses of which he was convicted. See UCMJ art. 66(c). As such,
any reduction of appellant’s sentence imposed by this court would be an
unauthorized exercise of clemency. See Nerad, 69 M.J. at 148.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge KRAUSS and Judge PENLAND concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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

2
  Appellant argues the result of his trial would have been the same as that of his
co-accused had he been tried by the same military judge who tried them. This
argument is specious as we conclude the findings in appellant’s case are legally and
factually sufficient. See generally United States v. Norman, 74 M.J. 144, 151
(C.A.A.F. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
3
 Private First Class Banks faced a maximum confinement of five years and four
months for his additional conviction of the simple disorder under Article 134,
UCMJ. See generally United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011).




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