               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        ANIL K. DUTTA
            COMMANDER (O-5), MEDICAL CORPS, U.S. NAVY

                          NMCCA 201300254
                      GENERAL COURT-MARTIAL

Sentence Adjudged: 19 April 2013.
Military Judge: CAPT John Waits, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Naval Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR M.C. Holifield,
JAGC, USN.
For Appellant: David P. Sheldon, Esq.; CDR Michael
Pallesen, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC; LCDR Keith
Lofland, JAGC, USN.

                           28 February 2014

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                     OPINION OF THE COURT
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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 unauthorized
absence and conduct unbecoming an officer and a gentleman, in
violation of Articles 86 and 133, Uniform Code of Military
Justice, 10 U.S.C. §§ 886 and 933. The military judge sentenced
the appellant to three months confinement, forfeiture of all pay
and allowances, and to be dismissed from the naval service. The
convening authority (CA) approved the sentence as adjudged and,
except for the dismissal, ordered the sentence executed.
Pursuant to a pretrial agreement, the CA suspended adjudged
confinement in excess of 90 days, and further suspended and
waived adjudged and automatic forfeitures as an act of clemency.

     The appellant asserts that the court-martial did not have
jurisdiction to try him for misconduct that occurred prior to
his reporting for active duty. Furthermore, the appellant
asserts that a sentence including a dismissal is inappropriately
severe, given the unique facts of this case.

     After careful consideration of the record of trial, the
appellant's assignments of error, and the pleadings of the
parties, we conclude that the findings and the 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 30 April 2012, the appellant received mobilization
orders recalling him to active duty as an Orthopedic Surgeon,
pursuant to 10 U.S.C. § 12302 (2012). The orders stated that
the appellant was to report to the Naval Operational Support
Center (NOSC), San Antonio, Texas, no later than 20 July 2012.
The appellant did not report on 20 July 2012, and stipulated
that he was aware of his orders and his decision not to report
was voluntary. Record at 35-39. The appellant remained absent
until 29 November 2012, at which time he surrendered himself to
military authorities.

                           Discussion

     The first question that this case poses is whether the
appellant was subject to court-martial jurisdiction at the time
the offenses were committed despite his not reporting pursuant
to his active duty orders. Personal jurisdiction is a question
of law that this court reviews de novo. United States v. Hart,
66 M.J. 273, 276 (C.A.A.F. 2008).

     “‘Court-martial jurisdiction exists to try a person so long
as that person occupies a status as a person subject to the
[UCMJ].’” United States v. Phillips, 58 M.J. 217, 219 (C.A.A.F
2003) (quoting United States v. Ernest, 32 M.J. 135, 139 (C.M.A.
1991)). A service-member’s status is generally governed by
Article 2, UCMJ, 10 U.S.C. § 802, which specifically states that

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reservists are subject to the UCMJ when they are “lawfully
called or ordered into, or to duty in or for training in, the
armed forces, from the dates when they are required by the terms
of the call or order to obey it.” 10 U.S.C. 802(a)(1) (emphasis
added)).1

     Here, the appellant freely admitted that he was aware of
his orders calling him to active duty on 20 July 2012. These
orders, pursuant to UCMJ, 10 U.S.C. §802(a)(1), place the
appellant in a status subject to UCMJ jurisdiction effective 20
July 2012. Additionally, the appellant’s decision to ignore
lawful orders to fulfill his service obligation does not act as
a shield from jurisdiction. Thus, we conclude that the court
had proper court-martial jurisdiction to try the appellant.

     The second question that this case poses is whether the
dismissal was inappropriately severe in light of the
circumstances of this case. This court reviews the
appropriateness of the sentence de novo. United States v.
Roach, 66 M.J. 410 (C.A.A.F. 2008). We engage in a review that
gives “‘individualized consideration’ of the particular accused
‘on the basis of the nature and the 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)).

     Here, the appellant willfully disregarded lawful orders,
which called for him to provide “a rapidly deployable urgent
initial surgical service forward in the theater of operation [in
order to] increase survival rates of critically wounded and
injured” personnel. Prosecution Exhibit 1 at 7. As a result of
his refusal, the surgeon that the appellant was supposed to
relieve had to remain in Afghanistan when the rest of his unit
re-deployed, and another reservist surgeon had to leave his
practice on short notice in order to fill the vacancy caused by
the appellant’s misconduct. For these reasons, we find the
sentence adjudged appropriate under the circumstances of this
case. To grant relief at this point would be engaging in
clemency, a prerogative reserved for the convening authority,
and we decline to do so. United States v. Healy, 26 M.J. 394,
395-96 (C.M.A. 1988).

                              Conclusion


1
  Because jurisdiction can be established over the appellant using
§ 802(a)(1), the three requirements in 802(c) are not relevant to the case at
bar.

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     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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