           U NITED S TATES N AVY –M ARINE C ORPS
               C OURT OF C RIMINAL A PPEALS
                            _________________________

                                No. 201500375
                            _________________________

                   UNITED STATES OF AMERICA
                                     Appellee
                                          v.

                              MARK A. LEVRIE
               Gunnery Sergeant (E-7), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Lieutenant Colonel E.A. Harvey, USMC.
      Convening Authority: Commander, Marine Corps Base,
                           Quantico, VA.
  Staff Judge Advocate’s Recommendation: Major Michael J. Eby,
                               USMC.
 For Appellant: Major John J. Stephens, USMC; Captain Daniel R.
                         Douglass, USMC.
 For Appellee: Lieutenant Commander Catheryne E. Pulley, JAGC,
             USN; Major Tracey L. Holtshirley, USMC.
                      _________________________

                            Decided 17 March 2017
                            _________________________

 Before PALMER, MARKS, and MILLER, Appellate Military Judges
                    _________________________

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 general court-martial, convicted the
appellant, pursuant to his pleas, of wrongful membership in a criminal gang;
ten specifications of drug offenses which included wrongful possession of
Chief Judge Palmer participated in the decision of this case prior to detaching from
the court.
                    United States v. Levrie, No. 201500375


methamphetamine with intent to distribute and wrongful use of
methamphetamine, cocaine, and marijuana; and aiding and abetting an
assault consummated by a battery in violation of Articles 92, 112a, and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, and 928.
The convening authority (CA) approved the adjudged sentence of confinement
for one year and a bad-conduct discharge.
   In a single assignment of error, the appellant asserts that the sentence
imposed was inappropriately severe.
   On 12 July 2016, this court set aside the CA’s action and returned the
record of trial to the Judge Advocate General for remand to an appropriate
CA for new post-trial processing. United States v. Levrie, No. 201500375,
unpublished op., 2016 CCA LEXIS 401 (N-M. Ct. Crim. App. 12 Jul 2016)
(per curiam). A corrected staff judge advocate’s recommendation dated 25
August 2016 properly advised the CA of his Article 60, UCMJ, authority. On
20 October 2016, the CA again took action on this case, and approved the
adjudged sentence. We now address the remaining assignment of error.
                               I. BACKGROUND
    The appellant enlisted in the Marine Corps in 1998. He deployed to
Kosovo and Afghanistan in 2002. He was subsequently assigned to 1st
Battalion, 6th Marine Regiment and was deployed to Ramadi, Iraq in 2006.
The appellant deployed to Afghanistan in 2008 with the 24th Marine
Expeditionary Unit (MEU). During his deployments, the appellant saw
significant combat action and witnessed the death and injury of civilians,
enemy combatants, and fellow Marines.
    As a result of his 2006 and 2008 deployments, he was diagnosed with
Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI)
and was transferred to the Wounded Warrior Battalion-West. In July 2014,
the Veteran’s Administration rated the appellant 100% disabled, and he was
in the process of being medically retired from the Marine Corps.
    Around August 2013, the appellant became actively involved in a criminal
motorcycle gang called the “Devils Diciples [sic] Motorcycle Club”. Despite
knowing that he was prohibited by Department of Defense regulations from
joining this motorcycle gang, the appellant still became a member,
participated in gang activities, and wore gang colors. As a member of the
Devils Diciples, the appellant committed numerous serious crimes including
the use, possession, and distribution of methamphetamine, cocaine, and
marijuana, and a violent assault against a fellow Marine. Specifically, the
appellant admitted to aiding and abetting an assault wherein a fellow Marine
was punched and kicked about the face and body.




                                     2
                        United States v. Levrie, No. 201500375


                                   II. DISCUSSION
    Article 66(c), UCMJ, requires us to independently review the sentence in
each case within our jurisdiction and to approve only that part of the
sentence we find should be approved. United States v. Baier, 60 M.J. 382,
384-85 (C.A.A.F. 2005). We are required to analyze the record as a whole to
ensure that justice is done and that the appellant receives the punishment he
deserves. United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). In making
this assessment, we consider the nature and seriousness of the offenses as
well as the character of the offender, keeping in mind that courts of criminal
appeals are tasked with determining sentence appropriateness as opposed to
bestowing clemency, which is the prerogative of the CA. Id. at 396.
   The appellant’s record, including his exemplary service during combat
deployments, and his resulting TBI and PTSD are all factors we must
carefully consider when attempting to determine whether a sentence is
appropriate. We balance those factors against the severity of the offenses for
which he was convicted to make our determination of sentence
appropriateness.
   The record establishes that the appellant served in two war zones with
valor and distinction and returned with physical and mental injuries which
continue to impact his life. Prior to his court-martial, the appellant was
diagnosed with TBI and PTSD, rendering him eligible for medical retirement
with a 100% disability rating.
    Conversely, we note the appellant pled guilty to a myriad of serious
criminal offenses, which included seeking, over a period of several months, to
entice others to use dangerous drugs and aiding and abetting the severe
beating of a fellow gunnery sergeant by members of his outlawed gang. The
appellant’s criminal conduct is easily distinguished from the criminal conduct
in the cases he cites as precedent to disapprove the bad-conduct discharge.1
    Contrary to the appellant’s claim, we do not consider this protracted
period of criminal activity involving use and possession of illicit drugs with
intent to distribute them, assault consummated by a battery, and active
participation in a criminal motorcycle gang to be non-violent and relatively


    1Although the appellant cites to two cases wherein we set aside an adjudged
punitive discharge, in both, those PTSD and TBI-diagnosed Marines (a private and a
corporal) engaged only in self-destructive criminal behaviors (e.g., use of illegal drugs
and unauthorized absence), which caused physical harm to no one but themselves.
See United States v. Smith, No. 200900239, 2009 CCA LEXIS 558, unpublished op.
(N-M. Ct. Crim. App. 17 Dec 2009) (per curiam); United States v. Gober, No.
201100632, 2012 CCA LEXIS 759, unpublished op. (N-M Ct. Crim. App. 29 Mar
2012) (per curiam).


                                           3
                        United States v. Levrie, No. 201500375


minor. We do not find a sentence including a bad-conduct discharge
inappropriately severe, even in light of the collateral consequences of a
punitive discharge. Furthermore, disapproving a punitive discharge in order
to circumvent those consequences would be an act of clemency, which is
properly a decision for the CA, not this court.
   In addition, the military judge, having considered the appellant’s combat
deployments and mental and physical injuries, explained the effect of the
appellant’s mitigation evidence on her adjudged sentence:
         Just for clarity on the record, I want to make it clear that that
         sentence was based in large part upon the mitigation presented
         by the defense in this case. Certainly, all consideration was
         given to your combat record and your record of good service
         prior to what’s occurred during this current enlistment.2
    Finally, we note that the appellant’s approved sentence was considerably
less than the maximum possible punishment of confinement for 112 years
and 6 months, forfeiture of all pay and allowances, reduction to pay grade E-
1, and a dishonorable discharge.
    It is clear that the appellant received fair and balanced consideration as
to an appropriate sentence based on all the evidence available. We conclude
that, based on the entire record, justice was served and the appellant
received the punishment he deserved.
                                III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.
                                            For the Court


                                            R.H. TROIDL
                                            Clerk of Court




   2   Record at 244.


                                        4
