UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        MULLIGAN, FEBBO, and SCHASBERGER
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Private E1 DANIEL S. ALCANTARA
                          United States Army, Appellant

                                   ARMY 20170370

          Headquarters, U.S. Army Medical Department Center and School
                     Charles L. Pritchard, Jr., Military Judge
            Lieutenant Colonel Joshua A. Berger, Staff Judge Advocate


For Appellant: Captain Benjamin J. Wetherell, JA; William E. Cassara, Esquire (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman,
JA; Captain Marc B. Sawyer, JA (on brief).

                                   31 October 2018
                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

FEBBO, Judge:

      Appellant was convicted of sexually assaulting a fellow soldier, sexually
abusing three other fellow soldiers, and violating an order from his commander. 1 He
was sentenced to a dishonorable discharge and twenty five years of confinement.



1
  A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of failure to obey a lawful order, sexual assault, two specifications of
abusive sexual contact, and aggravated sexual contact, in violation of Articles 92
and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920 [UCMJ]. The
military judge acquitted appellant of two specifications of sexual assault, two
specifications of abusive sexual contact, and wrongfully communicating a threat to
his company commander, in violation of Articles 120 and 134, UCMJ; 10 U.S.C. §§
920 and 934. The convening authority approved the adjudged sentence. Appellant
was credited with 208 days of pretrial confinement.
ALCANTARA—ARMY 20170370

       Appellant contends his twenty-five-year sentence to confinement is too
severe. The convening authority (CA) and his staff judge advocate (SJA) both
agree. 2 So do we. As part of his Rules for Courts-Martial (R.C.M.) 1105 and 1106
submissions to the CA, appellant submitted over fifty letters of support requesting
the CA reduce his sentence. One of the letters was from Private (PVT) SK, the
victim of appellant’s most serious sexual offense. She informed the CA that
although she was hurt by appellant’s violation of her trust, she was “shocked” by his
sentence. She asked the CA to reduce his sentence if possible. 3

      After reviewing the record of trial and appellant’s post-trial submissions, the
SJA informed the CA that he would recommend the CA “mitigate” appellant’s
sentence to confinement if permitted—but such action is not permitted under the
R.C.M. or Article 60, UCMJ. The CA agreed the sentence was too harsh and
included a statement in the record that he would lessen appellant’s sentence if he
were not restricted by the new rules limiting his authority to do so. 4

      After reviewing the entire record, including PVT SK’s letter to the CA, the
Addendum to the SJA’s Recommendation (SJAR), and the CA’s note attached to that
Addendum, we agree relief is appropriate and, in our decretal paragraph, we reduce
the appellant’s sentence to a dishonorable discharge and nineteen years of
confinement.



2
   This case is before us for review pursuant to Article 66, UCMJ. Appellant also
raised three other assigned errors that do not merit discussion or relief. One of the
appellant’s assigned errors is the unreasonable 233 days of post-trial delay until the
CA’s initial action. We do not find a due process violation for the 233 days of post-
trial delay to complete the 1,048 page record of trial. Further, appellant was
benefited by the CA’s due diligence to ensure his opinion about the appellant’s
sentence was included in the record of trial. We have considered the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find they lack merit.
3
  Appellant’s other victims chose not to submit matters to the CA. By focusing on
the submission of PVT SK, we do not intend to downplay the fact appellant sexually
abused three other soldiers. We do not presume to know those other soldiers’
opinions of appellant’s sentence. Nevertheless, PVT SK’s opinion is significant,
especially considering she was the victim of appellant’s most serious offense.
4
  Neither the CA nor his SJA indicated what sentence to confinement they believed
would be appropriate, only that it should be less than twenty-five years. As we
review the SJAR, Addendum to the SJAR, and the CA’s Action under Article 66(c),
UCMJ, we would be at liberty to consider such specific recommendations if the SJA
or CA had offered them in those documents.


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ALCANTARA—ARMY 20170370

                                  BACKGROUND

       After graduating from high school, appellant joined the Army in January
2016. He was twenty years old. Appellant was ill-suited to military life, which
requires an earnest respect for rules, professionalism, and one’s fellow soldiers.

       In July 2016, appellant and PVT SK left post without authority and went
shopping. While shopping, PVT SK went inside a department store’s dressing room
to try on clothes. Appellant eventually pushed his way into the dressing room,
“cornered” PVT SK, grabbed her hard enough to leave large bruises on her shoulder
and arm, and pulled her down, forcing her to sit in his lap. Despite PVT SK
resisting and protesting, appellant pulled her underwear to the side and inserted his
penis in her vagina. Appellant later claimed he “thought it was playful” when PVT
SK repeatedly told him to “stop.”

      In August 2016, appellant was riding on a bus with other soldiers on post.
Appellant was sitting beside Private First Class (PFC) VM. Appellant began
harassing her to kiss him, and PFC VM attempted to convince him to leave her
alone. Instead of leaving her alone, appellant grabbed her waist and began humping
her with his pelvic area. Appellant then attempted to touch her breasts, prompting
PFC VM to kick him.

       In October 2016, appellant again rode a bus on post. Appellant sat next to
PFC AP and began touching her breasts despite PFC AP telling him not to several
times. Appellant later claimed he was “misreading a signal” and thought PFC AP’s
protests indicated she “was being naughty.”

        In November 2016, after CID had already interviewed appellant about the
offenses against PVT SK, PFC VM, and PFC AP, appellant violated an order from
his company commander by consuming alcohol. He then assailed PFC MR in the
barracks. Appellant grabbed PFC MR and pulled him onto a bunk bed. While
restraining him, appellant licked PFC MR’s neck and told PFC MR to “let
[appellant] fuck [him] in the ass.” Appellant then tried to unfasten PFC MR’s pants
by biting at his belt. Another soldier separated appellant from PFC MR. PFC MR
went to the latrine and appellant followed. Appellant pushed PFC MR into a latrine
stall, locked the door, displayed his penis, and told PFC MR to “suck his dick.”
When PFC MR refused, appellant “began urinating everywhere.” As a result,
appellant was placed in pre-trial confinement until his court-martial.

      Appellant was convicted of the misconduct described above. At sentencing,
appellant faced a maximum punishment including up to sixty-four years and six
months of confinement. Prosecution evidence at sentencing included evidence
appellant committed prior misconduct resulting in non-judicial punishment.
Appellant’s prior misconduct included failing to go to his appointed place of duty,



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ALCANTARA—ARMY 20170370

disobeying orders, and underage drinking. Appellant’s defense counsel offered
evidence in extenuation and mitigation. This included evidence of appellant’s
struggles growing up, and his family history of alcohol abuse.

       The prosecution argued appellant did not take the charges against him
seriously, generally thought he did nothing wrong, and was unremorseful. 5 The
prosecution further argued appellant should be confined for a minimum of fifteen
years and receive the mandatory dishonorable discharge. By contrast, the defense
argued that fifteen years of confinement was unreasonable.

                              LAW AND DISCUSSION

       This court reviews sentence appropriateness de novo. United States v.
Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001) (citing United States v.
Cole, 31 M.J. 270, 272 (C.M.A. 1990)). “When we conduct a sentence
appropriateness review, we review many factors to include: the sentence severity;
the entire record of trial; appellant’s character and military service; and the nature,
seriousness, facts, and circumstances of the criminal course of conduct.” United
States v. Martinez, 76 M.J. 837, 841-42 (Army Ct. Crim. App. 2017). See also
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)). “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). This court has a great deal of discretion in determining
whether a particular sentence is appropriate but we are not authorized to engage in
exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

       On appeal, the government argues appellant’s sentence is appropriate despite
the opinion of the CA and his SJA to the contrary. In response to PVT SK’s letter,
the opinions of both the CA and his SJA, and the more than fifty letters of support
for appellant, the government reminds us that we may not grant clemency. See, e.g.
Healy, 26 M.J. at 396. 6


5
  In his unsworn statement, appellant said that he thought, once his charges reached
an Article 32, UCMJ preliminary hearing, “everyone is going to realize like it’s BS.”
Appellant’s letter to the CA further supports the conclusion that he does not fully
grasp the severity of his own misconduct. Characterizing his criminal acts,
appellant stated to the CA, “[he] honestly misunderstood and misjudged the actions
between [himself and his victims.]”
6
 Healy emphasized the role the CA played in the military justice system by serving
as the primary potential source of clemency in deserving cases. Long after Healy

                                                                         (continued . . .)



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ALCANTARA—ARMY 20170370

       Although exercising clemency and ensuring justice often run parallel paths,
we must ensure the latter while never indulging the former. Compare id. with
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002) (“The charter of Courts of
Criminal Appeals on sentence review is to do justice.”) (citations and internal
quotation marks omitted). Our review of any record for sentence appropriateness
includes the post-trial matters submitted by victims and appellants. Unlike this
court, the military judge did not have the benefit of these post-trial matters in
sentencing. The post-trial matters we considered in this case also included the
opinion of the CA and his SJA, which were not before the military judge.

       We have given individualized consideration to this particular appellant. Our
consideration includes, but is not limited to, the nature and seriousness of the
offenses, the record of trial, and other matters presented by appellant in extenuation
and mitigation—to include R.C.M. 1105 and 1106 matters. For transparency, we
note the letter from PVT SK and the opinions of the CA and his SJA were persuasive
and we factored them into our sentence appropriateness review.

      Considering the factors for sentence appropriateness, we find appellant’s
twenty-five-year sentence to confinement was inappropriately severe.

                                   CONCLUSION

       Upon consideration of the entire record, the findings of guilty are
AFFIRMED. We affirm only so much of the sentence as provides for a dishonorable
discharge and confinement for nineteen years. Appellant will be credited with 208
days against the sentence to confinement. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the sentence set aside
by this decision, are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).




(. . . continued)
was decided, however, Article 60, UCMJ was amended to remove the CA’s power to
grant clemency. See National Defense Authorization Act for Fiscal Year 2014, P.L.
113-66, § 1702(b), 127 Stat. 672, 955-56 (2013). Article 74, UCMJ still allows the
service Secretary, or his or her designee, broad discretion over unexecuted portions
of sentences. Article 71(b), UCMJ likewise grants the Secretary authority over the
sentences of commissioned officers. See Healy, 26 M.J. at 396. Nevertheless, the
role of the CA has been substantially eroded since our superior court placed such
great emphasis on it in Healy and related cases.


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ALCANTARA—ARMY 20170370

    Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                              FORTHE
                             FOR  THECOURT:
                                      COURT:




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




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