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

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

                      UNITED STATES OF AMERICA

                                     v.

                      JEREMY J. BUSHNELL
          BOATSWAIN'S MATE SECOND CLASS (E-5), U.S. NAVY

                            NMCCA 201400364
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 10 July 2014.
Military Judge: CDR J.A. Maksym, JAGC, USN.
Convening Authority: Commanding Officer, USS LASSEN (DDG
82).
Staff Judge Advocate's Recommendation: LTJG J.L. Root,
JAGC, USN.
For Appellant: LCDR Dillon Ambrose, JAGC, USN.
For Appellee: CAPT Dale Harris, JAGC, USN; Capt C. Carver,
USMC.

                              9 April 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.

PER CURIAM:

     A military judge, sitting as a special court-martial,
convicted the appellant, pursuant to his pleas, of violating a
lawful general order prohibiting sexual harassment, two
specifications of making a false official statement, and
intentionally exposing his genitalia in an indecent manner, in
violation of Articles 92, 107, and 120c, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 907, and 920c. The adjudged
sentence included reduction to pay grade E-1, confinement for
eleven months and twenty-eight days, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, pursuant to the terms of the pretrial
agreement, suspended all confinement in excess of nine months.

     On appeal, the appellant alleges that his sentence is
inappropriately severe. 1 After carefully examining the record of
trial, as well as the submissions of the parties, we are
convinced that the findings and 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

     On the evening of 9 July 2013, the appellant was standing
bridge watch aboard the USS LASSEN (DDG 82) and Boatswain’s Mate
Seaman (BMSN) AS was standing watch as the aft lookout. The
appellant was directed to check on the aft lookout because the
ship was heading into a storm. When he checked on her, BMSN AS
asked the appellant to get her some food and the appellant
responded that he would do so if she would do something for him.
The appellant then walked over to BMSN AS, unzipped his
coveralls and exposed his penis to her in hopes of receiving
oral sex. BMSN AS declined the appellant’s sexual advance.
During an investigation of the appellant’s misconduct, the
appellant twice lied to Naval Criminal Investigative Service
agents about the incident and falsely told members of the crew
that BMSN AS was lying about the entire incident.

                            Sentence Severity

     In his sole assignment of error, the appellant alleges that
his sentence was inappropriately severe. We disagree.

     The case law governing this area is beyond cavil. It is
well and firmly settled that this Court reviews sentence
appropriateness claims de novo. United States v. Baier, 60 M.J.
382, 384-85 (C.A.A.F. 2005). And it “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

1
  This assignment of error was raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
                                      2
determines, on the basis of the entire record, should be
approved.” Art. 66(c), UCMJ. The appropriateness of the
sentence must be judged by an “‘individualized consideration’”
of an appellant, “‘on the basis of the nature and seriousness of
the offense and the character of the offender.’” United States
v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). The
punishment should fit both the offender and the crime. United
States v. Mack, 9 M.J. 300, 317 (C.M.A. 1980). The sentence
should not be more severe than that “warranted by the offense,
the circumstances surrounding the offense, [the accused’s]
acceptance or lack of acceptance of responsibility for his
offense, and his prior record.” United States v. Aurich, 31
M.J. 95, 97 (C.M.A. 1990).

     If a sentence is unjustifiably severe, this court may not
approve it. See United States v. Lanford, 20 C.M.R. 87, 92-95
(C.M.A. 1955). A military Court of Criminal Appeals (CCA)
should not affirm even an unsuspended punitive discharge if it
is not appropriate. United States v. Healy, 26 M.J. 394, 396
n.5 (C.M.A. 1988). Indeed, CCAs have broad discretion to grant
relief under Article 66(c).

     As indicated above, the record is clear that the appellant
sexually harassed a junior Sailor aboard ship while underway,
during a storm, and while the junior Sailor victim was directly
under his charge. During the course of his sexual advance, the
appellant exposed his penis to BMSN AS for 20 seconds. When
later questioned by NCIS regarding these acts, the appellant
twice lied and blamed the victim for his criminal actions.

     Additionally, the record reveals that the military trial
judge accurately and thoughtfully considered an appropriate
sentence before announcing appellant’s punishment. Indeed, he
made special findings before announcing his sentence that
underscore the gravity of the appellant’s conduct. 2 In sum, the
military judge demonstrated that he understood the severity of
the offenses to which appellant pled guilty and appropriately
considered all relevant circumstances inherent in this case
before issuing his sentence.

     In light of the appellant’s actions, the totality of the
record, and the governing case law, we are completely convinced
that his sentence is appropriate for his offenses.


2
    Record at 108-09.
                                3
                           Conclusion

     Both the findings and the sentence as approved by the CA
are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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