This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS,
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Anthony L. JORDAN
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201800197

                         Decided: 17 January 2020.

 Appeal from the United States Navy-Marine Corps Trial Judiciary,
 Military Judges: Lieutenant Colonel Jeffrey Munoz, USMC (arraign-
 ment); Major B.W. Barnett, USMC (motion); and Lieutenant Colonel
 Mark D. Sameit, USMC (trial). Sentence adjudged 4 April 2018 by a
 general court-martial convened at Marine Corps Base Camp Pend-
 leton, California, consisting of members with enlisted representation.
 Sentence approved by the convening authority: reduction to pay-grade
 E-1, confinement for seven years, and a dishonorable discharge.

 For Appellant: Zaven T. Saroyan, Esq.; and Lieutenant Gregory Har-
 gis, JAGC, USN.

 For Appellee: Lieutenant Commander Timothy C. Ceder, JAGC, USN;
 and Lieutenant Kimberly Rios, JAGC, USN.

 Judge STEPHENS delivered the opinion of the Court, in which Senior
 Judge TANG joined. Judge LAWRENCE filed a separate opinion, con-
 curring and dissenting in part.

                        _________________________
                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

           This opinion does not serve as binding precedent, but
            may be cited as persuasive authority under NMCCA
                     Rule of Appellate Procedure 30.2.

                                 _________________________

STEPHENS, Judge:
    Appellant entered mixed pleas. He pleaded guilty to one specification of
violating Article 91, Uniform Code of Military Justice (UCMJ) 1 for disobeying
the order of a non-commissioned officer, and two specifications of aggravated
assault in violation of Article 128, UCMJ. 2 He pleaded not guilty to two speci-
fications of rape and one specification of aggravated assault, in violation of
Articles 120 and 128, UCMJ. 3 A general court-martial consisting of enlisted
representation acquitted him of the charges and specifications to which he
pleaded not guilty and then sentenced him on the remaining ones.
   We have renumbered Appellant’s four assignments of error: (1) the mili-
tary judge abused his discretion when he denied Appellant’s motion for relief
under Article 13, UCMJ, due to poor brig conditions during pretrial confine-
ment, (2) the trial counsel committed prosecutorial misconduct when he
commented on the victim’s unsworn statement during his sentencing argu-
ment, (3) the military judge abused his discretion when he denied Appellant’s
request, made after assembly of the court-martial, to be sentenced by the
military judge instead of the members, and (4) the sentence imposed by the
members was inappropriately severe. We find no errors in the court’s findings
and affirm the conviction, but find the sentence to be inappropriately severe
and take corrective action in our decretal paragraph.

                                     I. BACKGROUND

   1. Lance Corporal Jordan’s volatile relationship with LVS
   In 2016, then-20-year-old Lance Corporal (LCpl) Anthony L. Jordan, had
a volatile romantic relationship with a 17-year-old civilian, LVS. She lived
with her mother in Oceanside, California, just outside of Marine Corps Base
Camp Pendleton, where LCpl Jordan was stationed. During this relationship,



   1   10 U.S.C. § 891 (2016).
   2   10 U.S.C. § 928 (2016).
   3   10 U.S.C. §§ 920, 928 (2016).




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                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

they often argued. At least three times, LCpl Jordan became physically vio-
lent with her.
    The first time, they were arguing in his barracks room, when he grabbed
something that belonged to LVS and locked it in his closet. LVS became upset
and broke the lock. LCpl Jordan responded by pushing her inside the closet
and onto the ground, and pressed his knee on her stomach while he choked
her. He kept his hands around her neck for about 15 to 20 seconds, and used
a “six or seven” 4 force on a scale of ten. When LVS started to get lightheaded
and stopped fighting him, he released her.
    Just nine days later, there was another altercation where LCpl Jordan
became physically violent with LVS. They were again in his barracks room
and arguing so loudly that another Marine asked them to be quiet. This
prompted LVS to leave on foot. LCpl Jordan got into his car and drove after
her. He asked her to get in the car so he could drive her home. When she
refused, he got out of his car, approached her from behind, and put her in a
rear chokehold, using his bicep and forearm to choke her neck. He used the
same amount of force for the same duration as before and stopped when LVS
became compliant.
   A week after the second incident, LCpl Jordan stayed at LVS’s home.
When he woke up to go to work, they had an argument about cell phones. He
grabbed her phone and left the room. LVS then said something that upset
him. He returned to the room, grabbed her arms, and pinned her down before
running out of the room with the phone. Once LCpl Jordan was downstairs,
he heard a loud commotion and a “big bang” 5 from LVS’s bedroom, so he went
back upstairs. She was crying and there was a hole in her wall. LCpl Jordan
was upset and wanted to talk, but LVS did not want to. He became even more
upset and placed her in another rear chokehold to “try and calm her down.” 6
LCpl Jordan used about the same amount of force as the other two incidents,
though this last chokehold “might have been for quite some time” 7—possibly
two or three minutes.
   At some point, LVS’s mother learned of the problems in the relationship
and obtained a civilian restraining order. But LVS continued communicating



   4   Record at 146.
   5   Record at 152.
   6   Id.
   7   Record at 155.




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                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

with LCpl Jordan, even going as far as to create a new social media account
to do so. Neither LVS nor her mother reported the assaults to military au-
thorities.

   2. An unrelated rape allegation against Lance Corporal Jordan
    About a year later, LCpl Jordan came to the Government’s attention for
an unrelated alleged rape. He had started texting another young woman,
LCpl STT, whom he met through a dating application. Despite never person-
ally meeting, they immediately began sending sexually-charged text messag-
es. She also sent him nude photographs and videos of her masturbating. She
told him she was interested in “BDSM”, (short for “bondage, discipline, sad-
ism, and masochism”) and also liked “rough sex.” 8 They intended to meet up
one evening after he had finished a field exercise.
    They met in a parking lot near her barracks and she got into his car. She
alleged that when she refused to kiss him, he grabbed her neck with his hand
and choked her. Then he drove to another, more secluded, parking lot, and
allegedly raped her in the back seat of his car by forcibly penetrating her
vagina with his penis and ejaculating in her. When it was over, LCpl Jordan
dropped her off at her barracks.
    Within ten minutes, LCpl STT reported this to the Naval Criminal Inves-
tigative Service and she underwent a sexual assault forensic examination
within the hour. LCpl Jordan’s command immediately placed him on pre-trial
restriction.
    The next day, the Officer of the Day (OOD), a staff sergeant, verbally or-
dered LCpl Jordan to remain in a barracks room and told him if he needed to
go anywhere, to check out with the noncommissioned officer on duty in the
barracks. That same day, LCpl Jordan did check out with the barracks duty
to get a haircut and something to eat. But later that evening when he went to
see LCpl STT, he did not check out. When the command found out, it imme-
diately placed him into pretrial confinement.

   3. Lance Corporal Jordan’s general court-martial
   Eventually, LCpl Jordan was charged with:
         two specifications of aggravated assault for choking LVS, with the sec-
            ond specification covering the final two instances as “divers occa-
            sions,” (Article 128, UCMJ);



   8   Record at 332-33, 338; 277-78.




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                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

         one specification of disobeying the OOD’s order, (Article 91, UCMJ);
         two specifications (under different theories for contingencies of proof)
            for raping LCpl STT, (Article 120, UCMJ) and;
         one specification of aggravated assault for choking LCpl STT (Article.
            128, UCMJ).
    LCpl Jordan made an apparent tactical decision to enter mixed pleas
without any pretrial agreement. A few days before the start of the contested
trial, he pleaded guilty to the aggravated assaults against LVS and disobey-
ing the OOD. He did so only after his counsel moved the court in limine to
confirm that evidence of the assault against LVS would not be admissible to
prove the alleged offenses relating to LCpl STT. He elected not to inform the
members of his guilty pleas concerning LVS, and then contested LCpl STT’s
allegations. He was acquitted of all of the charges involving LCpl STT and
only then were the members informed of his guilty pleas in which he admit-
ted he choked LVS in a manner similar to what LCpl STT described.
    During the contested portion of the trial, the defense theory was that
LCpl STT either consented to rough, BDSM-style sex, or that LCpl Jordan
reasonably believed she did because their prior text message conversations
covered in explicit detail their future intentions. The theory was that she
regretted actually getting “what she wanted”9 from the rough sex and rough
handling by LCpl Jordan. She was also criticized for not providing the entire
picture to law enforcement of the sexual nature of her “relationship” with
him.
   On direct examination, she described the way LCpl Jordan had allegedly
choked her in his car after she declined to kiss him:
         Q.      And then what happened?
         A.      I didn’t want to at first, but after that he brought up the
                 whole “Daddy” situation again. 10 He said that I still had
                 to call him “Daddy,” and the fact that I didn’t want to
                 upset him. So that’s when he grabbed my neck.
         Q.      When you say “he grabbed my neck,” what do you mean
                 by that?




   9   Record at 446, 453.
   10  As part of their “relationship,” LCpl STT would call LCpl Jordan “Daddy” and
he called her “Bitch.” Record at 278.




                                          5
      United States v. Jordan, NMCCA No. 201800197
                    Opinion of the Court

A.    He grabbed my neck from the front.
Q.    What did he grab it with?
A.    His hand.
Q.    Was he doing anything else to you physically?
A.    He—I mean, he pulled me towards him.
Q.    Did he hit you at any point?
A.    Yes.
Q.    So could you walk us through the exact order of how
      this happened?
A.    He choked me first but—and then pulled me close and
      he said that I didn’t kiss him right or I didn’t really
      have—and I wasn’t into it. So that’s what made him hit
      me.
      ....
Q.    So when he—so he—you said he’s choked you at this
      point and he pulled you closer. What happens next?
A.    I started getting light headed. So after that I just gave
      in.
      ....
Q.    And then the choking, describe exactly on your neck
      where he put his hands on there?
A.    His thumb was on one side and his other fingers were,
      like, on the other side.
TC:   So I will describe that for the record. The witness is tak-
      ing her hand and she’s put her hand around her throat
      with four fingers on one side and her thumb on the oth-
      er side.
Q.    And how he did that—when he had his hand on your
      throat, how much force did he apply?
A.    I mean, I would say a lot. I mean, mostly because he
      was pushing on the sides of my neck so that—so it made
      it hurt even more.




                               6
                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

         Q.      And what physical effect did you feel as a result of this?
         A.      I felt lightheaded. 11
   The Government also presented the testimony of the medical professional
who conducted LCpl STT’s sexual assault forensic examination. To prove an
element of aggravated assault, the witness also described the potential harm
from the choking.
   At the time, the members did not know that LCpl Jordan had already
pleaded guilty to choking LVS to the point where she displayed “lightheaded-
ness.” 12 They returned a finding of not guilty for the rape and aggravated
assault against LCpl STT. But before the five members could depart, the
military judge instructed them:
             Members, at this time, I’m going to send you home for the
         night. We are in a little bit of a unique scenario. In a prior ses-
         sion of court, Lance Corporal Jordan pled guilty to several spec-
         ifications that were unrelated to the Specifications before the
         Court. And you are going to have an opportunity to hear the ev-
         idence that he pled guilty to, and then we are going to move in-
         to the sentencing phase of the trial. And you, members, are go-
         ing to adjudge a sentence for the Specifications to which Lance
         Corporal Jordan pled guilty. 13
   The military judge then told the members to return the next morning at
0800 to “move straight into the sentencing phase.” 14
    The next day, the members were instructed by the military judge. He told
them they could not hold it against LCpl Jordan that they did not know about
his guilty pleas. The military judge instructed the members they could not
consider any of the evidence that was presented on the merits during the
contested portion of the trial. The military judge also provided an instruction
drafted by the Defense to that end and allowed the Defense to voir dire the
members. No challenges were made. The members listened to LCpl Jordan’s
providence inquiry in court. 15 They heard, in LCpl Jordan’s own words, how



   11   Record at 289-91.
   12   Record at 146.
   13   Record at 494.
   14   Id.
   15   Record at 510.




                                          7
                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

he used his hands, and arm, to execute MCMAP (Marine Corps Martial Arts
Program) style moves on LVS, how much force he used, and that he did so, on
at least one occasion, to where LVS displayed “lightheadedness.” 16 Then
LVS’s mother testified for the Government and LVS presented her unsworn
statement. The Defense presented LCpl Jordan’s unsworn statement.
    The trial counsel asked the members to sentence LCpl Jordan to the max-
imum punishment of confinement for seven years and a dishonorable dis-
charge. And after less than 36 minutes of deliberation—from the time the
parties went off the record, until they were all reassembled for the members
to announce their sentence—they did just that. 17
   Additional facts are discussed below as necessary.

                                  II. DISCUSSION

A. Brig Conditions Amounting to a Violation of Article 13, UCMJ
    The day after sentencing, the military judge held an Article 39(a), UCMJ,
session to address the Defense request for additional pretrial credit under
Article 13, UCMJ. The Defense alleged the pretrial conditions for LCpl Jor-
dan at the Marine Corps Base Camp Pendleton Brig were filthy and more
rigorous than necessary to assure his presence at trial. After hearing evi-
dence and personally visiting the brig, the military judge denied the motion
in a six-page written ruling. 18
    The crux of LCpl Jordan’s motion was that (1) the showers had an infesta-
tion of worms that were growing in the walls, (2) the toilets would back up
and cause toilets and sinks to backflow, and (3) an unpleasant smell and
discoloration came from water dripping from the ceiling above a fire alarm.
Another detainee had filed a complaint in December 2017—at about the
midpoint of LCpl Jordan’s eight months of pretrial confinement—concerning
the toilet backflow and the fire alarm problem. Over the following month, six
more similar complaints were filed. In early February 2018, LCpl Jordan
filed his only complaint about the fire alarm, but did not mention any prob-
lems with the toilets or the showers. About a week after LCpl Jordan’s com-
plaint, plumbers scoped and cleared the sewage pipes.



   16   Record at 146.
   17 Record at 542-43. The members departed to deliberate at 1207 on 3 April 2018.
The court-martial opened at 1243.
   18   Appellate Exhibit LXXI.




                                        8
                    United States v. Jordan, NMCCA No. 201800197
                                  Opinion of the Court

    The day of the post-trial Article 39(a) session, the military judge and
counsel for both parties inspected the brig. In his Findings of Fact, the mili-
tary judge wrote: “Overall, the squad-bay 1 bathroom was cleaner and better
smelling than many of the bathrooms throughout the Marine Corps, includ-
ing the courtroom bathrooms at Camp Pendleton.” 19
    When a military judge denies credit under Article 13, UCMJ, it is a mixed
question of law and fact. 20 We review a military judge’s factual findings on
this matter for clear error 21 and we review the application of those facts to
the law, and the ultimate issue of whether confinement credit should have
been awarded de novo. 22
    Article 13’s two prongs prohibit an intention to impose pretrial punish-
ment and to impose conditions that are more rigorous than necessary to
ensure an accused’s presence at trial. “Conditions that are sufficiently egre-
gious may give rise to a permissive inference that an accused is being pun-
ished, or the conditions may be so excessive as to constitute punishment.” 23
Because LCpl Jordan conceded the Government had no intent to punish, we
focus on the conditions.
    We see nothing in the record indicating the military judge made clear er-
rors in his findings of fact. The complaints made by LCpl Jordan and others
show the brig conditions appear to be the sort of routine maintenance and
plumbing issues found in many Marine Corps buildings. While perhaps not
the gold-standard for facilities maintenance, the relevant point is whether
these conditions amounted to the sort of squalid conditions that went beyond
what was necessary to simply guarantee LCpl Jordan’s presence at trial.
They did not.
    In United States v. Harris, 24 our superior court declined to grant addi-
tional credit beyond what our court had already awarded when appellant was



   19   Id. at 4.
   20 United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing United States
v. Smith, 53 M.J. 168, 170 (C.A.A.F. 2000).
   21   Id.
   22 United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005) (citing Mosby, 56 M.J.
at 310).
   23  United States v. Harris, 66 M.J. 166, 168 (C.A.A.F. 2008) (citations omitted)
(internal quotation marks omitted).
   24   Id.




                                         9
                  United States v. Jordan, NMCCA No. 201800197
                                Opinion of the Court

“forced to remain in his cell twenty-one hours each day, wear shackles during
his two-hour television break, eat his meals in his cell, endure roaches and
mice in his cell, and endure ‘dire heat’ due to a lack of air conditioning.” 25
Though we awarded that appellant credit for being placed in maximum cus-
tody, and its attendant conditions, our superior court found he did not carry
his burden under Article 13 to demonstrate an entitlement to any additional
relief. As LCpl Jordan’s conditions were not nearly as rigorous as the ones in
Harris, we find he has also not carried his burden. We find no error in either
the military judge’s findings of fact, or his application of those facts to the
law.

B. Prosecutorial Misconduct
    During arguments on sentencing, the trial counsel commented on the con-
tents of LVS’s unsworn statement. The Defense did not object. Now, Appel-
lant argues this comment constituted prosecutorial misconduct because a
victim’s unsworn statement is “not evidence” and prosecutors may not com-
ment on matters that are “not evidence.” We recently issued an opinion cover-
ing this exact issue in United States v. Barclay. 26 We reach the same conclu-
sion that a trial counsel—or a defense counsel—may comment on a victim’s
unsworn statement, just as either party may comment on an accused’s un-
sworn statement. 27 We find no “plain error” 28 that the trial counsel “over-
stepped the bounds of that propriety and fairness which should characterize
the conduct of such an officer in the prosecution of a criminal offense.” 29

C. Motion for Sentencing by Military Judge Alone
   Leading up to the trial, LCpl Jordan elected to plead guilty to the charges
and specifications concerning LVS and disobeying the OOD. With the remain-
ing charges and specifications concerning LCpl STT, he pleaded not guilty
and elected to be tried by members with enlisted representation. The military
judge clearly explained to LCpl Jordan that his pleas of guilty would be heard
by the military judge, but then his sentence would ultimately be determined




   25   Id. at 168-69.
   26   No. 201800271, unpublished op. (N-M Ct. Crim. App. 29 Oct 2019).
   27   See United States v. Barrier, 61 M.J. 482, 484 (C.A.A.F. 2005).
   28   United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998).
   29 United States v. Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014) (quoting United
States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)) (internal quotations omitted).




                                           10
                   United States v. Jordan, NMCCA No. 201800197
                                 Opinion of the Court

by the members. After the members were assembled, but before they re-
turned findings, LCpl Jordan requested to be sentenced by military judge
alone if the members returned not guilty findings to the charges and specifi-
cations involving LCpl STT. The military judge denied the motion and we
review that decision for an abuse of discretion. 30
   Under Article 16, UCMJ, 31 a general court-martial may consist of a mili-
tary judge sitting alone. An accused, with knowledge of the identity of the
military judge and the benefit of consultation with defense counsel, may
make such a request orally or in writing before the court is assembled. Be-
cause this request is not “jurisdictional in nature,” the military judge may
approve an untimely request for trial by military judge alone “if justified by
the circumstances.” 32
   In United States v. Jungbluth, 33 we held that the circumstances warrant-
ed the military judge’s acceptance of a request for sentencing by military
judge alone after the assembly of the court and introduction of evidence on
the merits. 34 In that case, after the appellant had elected trial by members,
the trial counsel became ill and fainted in court, causing a delay in the pro-
ceedings. During the interim, the appellant and the convening authority
agreed to terms, which included the appellant pleading guilty and being
sentenced by a military judge. Because both the government and the appel-
lant would receive some benefit of that bargain, the circumstances warranted
the military judge’s acceptance of the request for a judge-alone forum.
    This Court stated in Jungbluth that there is “far greater need for authori-
ty on the part of the judge to approve or disapprove a request for trial by him
alone as to a request submitted after assembly of the court than there is as to




    30   United States v. Wright, 5 M.J. 106, 107 (C.M.A. 1987).
    31   10 U.S.C. § 816 (2016).
     United States v. Jungbluth, 48 M.J. 953, 956 (N-M. Ct. Crim. App. 1998) (quot-
    32

ing United States v. Morris, 49 C.M.R. 653, 659 (C.M.A. 1975)) (internal quotation
marks omitted).
    33   Id.
    34 See RULE FOR COURTS-MARTIAL (R.C.M.) 903(e), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.). This Rule allows for a military judge, “until the beginning
of the introduction of evidence on the merits” to consider an untimely request for trial
by military judge alone or withdrawal of such a request. The Rule is silent on wheth-
er a military judge may consider such a request after assembly of members. See,
Jungbluth, 48 M.J. at 957.




                                            11
                  United States v. Jordan, NMCCA No. 201800197
                                Opinion of the Court

a request submitted before trial.” 35 This is because, once the court is assem-
bled, the Government bears the cost of the members serving, and having
served, as members rather than attending to their normal military duties.
Such a post-assembly request provides a possible windfall to an accused. He
gets the benefit, as he sees it, of having a military judge decide his case for
findings or sentence, but the Government has already forfeited its benefit
because it removed the members from their normal military duties for the
proceeding. The Government cannot un-ring the bell. For a military judge to
grant such a post-assembly request, there must be some matter of fundamen-
tal fairness at play. A mere tactical advantage cannot be enough. We find no
abuse of discretion by the military judge.
    We do not consider the members’ ultimate sentence in determining
whether the military judge abused his discretion at the time he denied Appel-
lant’s request. When courts review probable cause determinations, for in-
stance, they “must look at the information made known to the authorizing
official at the time of his decision.” 36 In a similar manner, at the time of the
military judge’s decision, he could not have known that the eventual mem-
bers’ sentence would be inappropriately severe or give indicia that they may
have disregarded his instructions. Not only did the military judge make the
correct decision based on the Jungbluth precedent, he took extra precautions
that were requested by the Defense.
    We note this case took place prior to the 1 January 2019 effective date of
the 2016 Military Justice Act, 37 which included updates to Articles 53 38 and
25 39 of the UCMJ. This trial also took place before the President promulgated
the updated RULE FOR COURT-MARTIAL (R.C.M.) 1002(b) contained in the
2019 edition of the MANUAL FOR COURTS-MARTIAL. 40 The updates to these
UCMJ Articles and this Rule make sentencing by the military judge the



   35  Jungbluth, 48 M.J. at 956 (quoting Morris, 49 C.M.R. at 658) (internal quota-
tions omitted) (emphasis added).
   36  United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005) (quoting United
States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001)) (internal quotation marks omitted)
(internal citation omitted)).
   37  Military Justice Act of 2016, Division E of the National Defense Authorization
for Fiscal Year 2017, Pub. L. No. 114-308, 130 Stat. 2000 (2016).
   38   10 U.S.C. § 853(b)(1)(A), (B) (2019).
   39   10 U.S.C. § 825 (2019).
   40   RULE FOR COURT-MARTIAL 1002(b) (2019).




                                                12
                  United States v. Jordan, NMCCA No. 201800197
                                Opinion of the Court

default forum in non-capital cases consisting of members. The new R.C.M.
makes it mandatory for the military judge to inquire on the record of an
accused’s desire for sentencing forum. This sea-change in the law and proce-
dure for sentencing further indicates the military judge in this case, before
this sea-change, had significant discretion over the matter and did not abuse
it.

D. Sentence Appropriateness

   1. Standard of review and the law
    Article 66, UCMJ, mandates we may “affirm only such findings of guilty
and the sentence or such part or amount of the sentence, as the Court finds
correct in law and fact and determines, on the basis of the entire record,
should be approved.” 41 Although Congress has amended the UCMJ several
times since its original enactment in 1950, this mandate in Article 66 has
remained virtually unchanged. 42 In 1957, in Jackson v. Taylor, the Supreme
Court recognized and affirmed the broad powers of service courts of criminal
appeals—then boards of review—to “affirm . . . such part or amount of the
sentence, as it finds correct . . . [.]” 43 Recognizing that “[r]eviewing authorities
have broad powers under military law,” the Court held that the board of
review could properly approve a 20 year sentence of confinement for rape
after setting aside the appellant’s conviction for murder, for which offenses he
originally received a sentence of confinement for life. 44 The Court quoted the
Congressional testimony of the chairman of the drafting committee for the
original 1950 UCMJ, Professor Edmund M. Morgan, Jr., to hold that Con-
gress intended the board of review to have the “power to alter sentences.” 45
This power was not limited to the ability to reassess a sentence after setting




   41   Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1) (2019).
   42  Although pertinent to three-officer or three-civilian service boards of review,
the original Article 66(c), UCMJ, required that the board of review could “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.” The Act of 5 May 1950, Public Law 506, 81st Congress, c. 169, 1 1, 64
Stat. 108; Title 50 U. S. C. (Chap. 22) §§ 551-736.
   43   353 U.S. 569, 573 (1957).
   44   Id. at 574.
   45   Id. at 577.




                                            13
                  United States v. Jordan, NMCCA No. 201800197
                                Opinion of the Court

aside a finding; this power included the de novo ability to review the proprie-
ty of an adjudged sentence and alter it if justice so demands. 46
    Our superior court has referred to this power as “a sweeping Congres-
sional mandate to ensure ‘a fair and just punishment for every accused.’ ” 47
With these parameters in mind, we review the appropriateness of a sentence
de novo. 48 “Sentence appropriateness involves the judicial function of assur-
ing that justice is done and that the accused gets the punishment he de-
serves.” 49 This requires this Court to give “individualized consideration of the
particular accused on the basis of the nature and seriousness of the offense
and character of the offender.” 50 We recognize that members are free to im-
pose any sentence they consider fair and just within the limits set by the
Code or the President, 51 just as we recognize that this Court may not engage
in acts of clemency. 52 Considering, as we must, the entire record and deter-
mining a just sentence for this offender and his offenses, we do not ourselves
believe the sentence is “correct in law and fact based on the entirety of the
record,” 53 and we decline to approve the sentence as adjudged.

   2. De novo review for sentence appropriateness
   We do not lightly discount the sentence the members awarded. We need
not speculate how the members arrived at the sentence they imposed. Nor



   46   The Court quoted Professor Morgan, who testified before the Senate Armed
Services Committee that a board of review “may review law, facts, and practically,
sentences; because the provisions stipulate that the board of review shall affirm only
so much of the sentence as it finds to be justified by the whole record. It gives the
board of review . . . the power to review facts, law and sentence . . . [.]” Id. at 576
(citation omitted).
   47   United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting United States
v. Bauerbach, 55 M.J. 501, 504 (A.Ct. Crim. App. 2001)).
   48   See Id.
   49   United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
   50  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)).
   51   United States v. Dedert, 54 M.J. 904, 909 (N-M. Ct. Crim. App. 2001).
   52 See United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010) (suggesting that
modification of a sentence on grounds such as equity is a function of command pre-
rogative).
   53   Art. 66(c), UCMJ.




                                           14
                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

must we decide whether the members failed to follow the military judge’s
instructions to completely disregard all the evidence presented during the
contested trial, or the instruction not to hold it against LCpl Jordan that he
did not disclose his guilty pleas. This is irrelevant to this Court’s analysis on
the issue of sentence appropriateness. From the record, it is remarkable that
LCpl STT used the term “lightheaded” in her testimony to describe the feel-
ing she got when LCpl Jordan allegedly choked her and that this was the
same word used by LCpl Jordan in his providence inquiry when he choked
LVS. Again, it is certainly possible the members were upset that LCpl Jordan
“hid” the information concerning LVS as they considered LCpl STT’s testi-
mony. But that is irrelevant and we need not speculate on what the members
did or did not do. It is within our purview to approve only such portion of the
sentence as we believe should be approved. Based on the evidence properly
admitted for the purposes of sentencing LCpl Jordan on the offenses for
which he was convicted, the record does not justify the maximum sentence
the members awarded.
    “A dishonorable discharge should be reserved for those who, in the opin-
ion of the Court, should be separated under conditions of dishonor after a
conviction of serious offenses of civil or military nature warranting such
severe punishment.” 54 LCpl Jordan deserves a dishonorable discharge as well
as the adjudged reduction to pay-grade E-1. We are then left with determin-
ing a just sentence of confinement between the permissible sentences of no
confinement and the maximum term of seven years. In order to balance “the
nature and seriousness of the offense and the character of the offender” 55 we
review both the Government’s case in aggravation and LCpl Jordan’s matters
in mitigation.
    We first review the Government’s case in aggravation. The Government
played the military judge’s providency colloquy with LCpl Jordan. The mem-
bers heard him describe his own acts against LVS. LVS’s mother, who had
strong family ties to the Marine Corps and even worked on base, testified
that she personally felt as if she had failed her daughter. She also described
how LVS had changes to her eating and sleeping habits and experienced
episodes of panic when someone would surprise her. She also admitted that
she was not surprised to learn that LVS continued contacting LCpl Jordan
after the civilian restraining order was issued. The Government published



   54Record at 538. See also RULE FOR COURTS-MARTIAL 1003(a)(8)(B) MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2019 ed.).
   55   Snelling, 14 M.J. at 268 (quoting Mamaluy, 27 C.M.R. at 180-81.).




                                          15
                 United States v. Jordan, NMCCA No. 201800197
                               Opinion of the Court

LCpl Jordan’s military records that included a prior nonjudicial punishment
and several counselings. Outside of the providence inquiry, the Government
presented no additional evidence concerning LCpl Jordan’s violation of the
OOD’s order and later only briefly mentioned it in its sentencing argument.
   After the Government case in aggravation closed, LVS presented her un-
sworn statement pursuant to R.C.M. 1001A. She described her feelings of
anxiety, depression, and embarrassment. She stated that she regretted disre-
garding her mother’s advice concerning the relationship. She said that she
had loved LCpl Jordan but that he made the relationship one-sided—he had
a bad temper and was “controlling.” 56
    The Defense case presented LCpl Jordan’s unsworn statement along with
his high school diploma, his Professional Military Education certificates, and
his military records. In his unsworn statement, LCpl Jordan apologized to
both LVS and her mother, saying that he “acted off emotional impulse versus
using common sense.” 57 He also stated that he cared about LVS and wished
the best for her.
    The Government did not present any evidence LVS lost consciousness,
suffered either immediate or lasting physical injuries, or required medical
treatment. Although LVS described the long-term emotional impact she
suffered, she was not so harmed that she completely broke off all contact with
LCpl Jordan. Even ten months after the last assault, she was in contact with
him—even keeping her contact hidden from her mother after the civilian
restraining order was issued. While there was no excuse for LCpl Jordan’s
repeated use of physical violence against LVS, her actions shortly after the
assaults are a factor for us to consider in determining an appropriate sen-
tence.
   In considering the entire record, we decline to affirm the sentence ad-
judged. While not minimizing in any way the emotional trauma suffered by
LVS, LCpl Jordan’s misconduct does not rise to the level of the maximum
punishment.
   Finally, we note that the sentence did not appear to take into account the
mitigating factor that LCpl Jordan pleaded guilty or afford him the benefit of
any evidence he presented in mitigation. We are not saying that a maximum
punishment cannot be awarded for an accused who pleads guilty, but rather




   56   Record at 519.
   57   Record at 525.




                                     16
              United States v. Jordan, NMCCA No. 201800197
                            Opinion of the Court

just recognizing that the maximum sentence of confinement was inappropri-
ate in this case.
   We believe a sentence of 36 months of confinement, a dishonorable dis-
charge, and a reduction to pay-grade E-1 is a just sentence that is merited by
the evidence.

                             III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined the approved findings of guilt are correct in law and fact
and that no error materially prejudicial to Appellant’s substantial rights
occurred. Arts. 59, 66, UCMJ. With respect to the sentence, only the portion
of the approved sentence that extends to reduction to pay-grade E-1, con-
finement for 36 months, and a dishonorable discharge is affirmed.
   Senior Judge TANG concurs.




                                     17
                     United States v. Jordan, NMCCA No. 201800197
                     Lawrence, J., Concurring and Dissenting in Part


LAWRENCE, Judge (concurring and dissenting in part):
    I join my colleagues, concurring in parts I and II.A., II.B., II.C. and II.D.1.
of the opinion. In part II.D.2., I additionally concur with the majority opin-
ion’s discussion of the appropriateness of a sentence that includes reduction
to E-1 and a dishonorable discharge. However, while I too find the maximum
allowable sentence to confinement adjudged by the members panel to be
excessive, I dissent from my colleagues concerning the term of confinement
necessary to balance “the nature and seriousness of the offense[s] and the
character of the offender.” 1
    Lance Corporal Jordan, a physically fit Marine with martial arts training,
misused that training on multiple occasions, violently attacking the teenage 2
civilian woman he was dating, LVS. For these aggravated assaults and his
orders violation, I believe that an appropriate sentence would include reduc-
tion to paygrade E-1, confinement for 49 months, and a dishonorable dis-
charge.
     In a verbal argument on 20 August 2016 while in his barracks room
aboard Marine Corps Base Camp Pendleton, LCpl Jordan seized a personal
item of LVS and locked it inside a closet door. When she tried to retrieve it
and the lock broke, LCpl Jordan “pushed her inside of the closet and onto the
ground and put [his] knee onto her stomach and with [his] hands [he]
squeezed around her neck . . .” 3 such that his thumbs touched around LVS’s
trachea. He admitted that he was not provoked or acting in self-defense and
that he used a means and force likely to cause her grievous bodily harm as
“[i]t could have potentially killed her” 4 He used “quite a bit” of force in
squeezing around her neck. Using a scale from 1 to 10 with 10 being “all the
force [he could] muster,” LCpl Jordan estimated he applied a 6 or 7-level force
to LVS’s neck in strangling her with his hands. 5 Looking right at her with his
knee on her stomach and hands squeezing around her throat, he saw she was




   1 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)).
   2  We know that LVS was 17-years-old when she and LCpl Jordan began their re-
lationship, but her age at the time of his attacks is unknown.
   3   Record at 145.
   4   Id. at 146.
   5   Id.




                                           18
                     United States v. Jordan, NMCCA No. 201800197
                     Lawrence, J., Concurring and Dissenting in Part

beginning to lose consciousness as he continued to strangle her for “15 to 20
seconds,” only stopping when LVS stopped struggling and appeared on the
verge of losing consciousness. 6 In his colloquy with the military judge, LCpl
Jordan recognized that there were sensitive parts in one’s neck that were
susceptible to injury if constricted in the wrong way and that, through his
Marine Corps martial arts training, serious brain injury could quickly result
from the interruption of oxygen to the brain by the force he applied to LVS’s
neck.
    Just over a week later, a verbal disagreement between the two preceded
LCpl Jordan’s violent physical outburst. Here, LVS left LCpl Jordan’s bar-
racks room and LCpl Jordan pursued her in his car. When LVS declined to
get in LCpl Jordan’s car, he “placed [his] forearm of [his] bicep[s] around her
neck and was trying to get her into the car,” 7 again using a force he estimated
as a “seven or six” 8 out of ten as he squeezed around her neck for “[a]round 15
seconds.” 9 LCpl Jordan acknowledged he applied his Marine Corps martial
arts training, using the “rear naked choke” on LVS where his arm was
around her neck with her trachea in the small or pit of his elbow, squeezing
her neck by both his biceps and forearm with his other arm positioned behind
her neck to control it and leverage pressure forward. 10 LCpl Jordan knew
that the means and force he used could have potentially killed LVS. Because
he was behind her during this violent attack, he did not have the opportunity
to see her face, but he described that she “became compliant.” 11 He acknowl-
edged knowing that this technique was more effective in cutting off blood to
the brain and causing loss of consciousness in mere seconds while also carry-




   6   Id.
   7   Id. at 148.
   8   Id. at 149.
   9   Id. at 150.
   10  The “rear naked choke” is a “blood choke” where constriction of the carotid ar-
tery of an enemy reduces oxygen to the brain, resulting in unconsciousness in as little
as 8 to 13 seconds. See Cpl Jess Levens, “San Diego Recruits Learn Choking Tech-
niques (2005), https://www.mcrc.marines.mil/News/News-Article-Display/Article/
519502/san-diego-recruits-learn-choking-techniques/ (last visited 9 January 2020). As
stressed in training, such techniques are dangerous and sudden jerking movements
or excessive pressure may collapse the trachea. Training personnel maintain close
supervision, the “tap-out” rule always applies and no holds will exceed five seconds.
   11   Record at 151.




                                           19
                  United States v. Jordan, NMCCA No. 201800197
                  Lawrence, J., Concurring and Dissenting in Part

ing the risk of quickly injuring the brain. This is how LCpl Jordan responded
to LVS’s mere verbal refusal to get into his car.
    Within about a week, LCpl Jordan again assaulted LVS, this time at her
house. Upset with something she said to him, LCpl Jordan explained how he
“turned around, and placed both of [his] hands onto both of her arms and
pushed her back into the room and pinned her down, and she started to re-
sist.” 12 Shortly after leaving the room and going down the steps, LCpl Jordan
returned to LVS crying. When LVS refused to talk with LCpl Jordan, he got
upset “[a]nd that's when [he] again placed [his] forearm and [his] bicep[s]
around her neck to try and calm her down.” 13 While LCpl Jordan said he did
not clearly remember the duration or severity of this chokehold, he said he
had viewed LVS’s statement to special agents of the Naval Criminal Investi-
gative Service and had no reason to believe that she had lied about what
happened in this violent episode. Asked what he personally believed hap-
pened after reviewing all the evidence, LCpl Jordan said that he “believe[d]
that [he] did choke her and it might have been for quite some time . . . .
[r]oughly two to three minutes.” 14 In again applying the same rear naked
chokehold as in the earlier of these divers occasions in this specification, LCpl
Jordan went on to describe that he “believe[d] that [he] choked her, more so
at first, in a way to try to control and restrain her. But during that time that
[he] did flex [his] bicep[s] and begin to apply a serious amount of pressure
before releasing it, and then reapplying it again.” 15 He said this was not a
constant pressure, but he used a significant amount of force, similar to the 6
or 7 out of 10 that he used in his earlier chokehold attack. He acknowledged
that he had been trained on these chokeholds and he believed he was doing
them properly.
    There is little truly favorable information that LCpl Jordan offered in mit-
igation; some of his avoidance frankly exacerbates his situation. In his brief
unsworn statement, he repeatedly emphasized that his offenses against LVS
took place two years prior. 16 While saying that he was sorry and took respon-


   12   Record at 152.
   13   Id.
   14   Id. at 155 (emphasis added).
   15   Id. at 157.
   16  “Two years ago, I dated L.V.S. And two years ago, I put my hands on her.” Rec-
ord at 524. “Two years ago, I acted off emotional impulse . . . .” Id. at 525. “[T]hese
actions two years ago, in a two month span, do[ ] not define me as a man nor a Ma-
rine.” Id.




                                          20
                  United States v. Jordan, NMCCA No. 201800197
                  Lawrence, J., Concurring and Dissenting in Part

sibility for his actions and despite LVS just having personally presented a
compelling unsworn victim impact statement, he went on to say that he real-
ized after the end of the relationship that “our” relationship was toxic and
they were “physical and angry with each other” and that “we acted like
kids.” 17 Aside from his attempt to minimize and share responsibility for his
violence, he presented his military records, Professional Military Education
certificates, and high school diploma. That he pleaded guilty to these offenses
shortly before trial spared the Government little in resources as they had
already prepared for a contested trial and seemingly had LVS as someone
who was willing to appear and may well have been a compelling witness.
    The majority opinion offers that “[t]he Government did not present any
evidence LVS lost consciousness, suffered either immediate or lasting physi-
cal injuries, or required medical treatment.” 18 The law requires no such doc-
umented physical injury from a victim in order to merit a sufficiently serious
sentence for these most serious offenses. Likewise, the majority says they “do
not minimiz[e] in any way the emotional trauma suffered by LVS,” 19 but they
proceed to marginalize this girl’s account as somehow overblown for not
making an immediate and clean break from her “controlling” 20 and violent
boyfriend. In her unsworn victim impact statement, LVS explained that she
stayed in a turbulent relationship with LCpl Jordan despite his repeated
physical abuse “because [she] loved him, because [she] thought things could
get better. [She] thought, how he was in the beginning is what . . . . he would
come back to.” 21 While I agree that her actions are a factor to consider, I
believe they need to be put in the appropriate context: this was a teenage girl
who was in a relationship with a controlling and emotionally and physically
abusive Marine who misused his training by violently attacking her on mul-
tiple occasions.
   Finally, while the majority opinion laments that “the Government pre-
sented no additional evidence concerning LCpl Jordan’s violation of the
OOD’s order and later only briefly mentioned it in its sentencing argu-
ment,” 22 there is little doubt that this offense itself deserves some considera-


   17   Id. at 524 (emphasis added).
   18   Majority Opinion at *16.
   19   Id.
   20   Record at 519.
   21   Id. at 520.
   22   Majority Opinion at *15.




                                        21
              United States v. Jordan, NMCCA No. 201800197
              Lawrence, J., Concurring and Dissenting in Part

tion in his sentence to confinement. The Government surely recognized it had
enough information before the members to merit an appropriate sentence
without unduly highlighting a serious, but less significant, offense compared
to Appellant’s violent assaults upon LVS. I agree that the members returning
a sentence to include the maximum punishment of confinement for one year
for this offense is not appropriate, but due weight should be given to this
offense and itself reflected in the unitary sentence.
   For the foregoing reasons, I concur and dissent in part.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




                                     22
