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

                                Before
           J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                       Appellate Military Judges

                        UNITED STATES OF AMERICA

                                        v.

                           MICHAEL T. JAY
           LOGISTICS SPECIALIST FIRST CLASS (E-6), U.S. NAVY

                             NMCCA 201400048
                         GENERAL COURT-MARTIAL

Sentence Adjudged: 16 October 2013.
Military Judge: CDR Ian Thornhill, JAGC, USN.
Convening Authority: Commander, Navy Recruiting Command,
Millington, TN.
Staff Judge Advocate's Recommendation: LCDR J.E. Frajman II,
JAGC, USN.
For Appellant: Maj John J. Stephens, USMC.
For Appellee: LT Ann E. Dingle, JAGC, USN; LT James Belforti,
JAGC, USN.

                             30 September 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 six
specifications of violating a lawful general order and two
specifications of adultery, in violation of Articles 92, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. The
military judge sentenced the appellant to reduction to pay grade
E-1 and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, except for that part of the
sentence extending to a bad-conduct discharge, ordered it
executed. The pretrial agreement had no effect on the sentence.
     In his sole assignment of error, the appellant contends that
the disparity in dispositions between his case and that of a
fellow recruiter - who engaged in closely related misconduct, but
was administratively discharged without punishment - renders the
appellant’s sentence inappropriately severe. We disagree.
     After carefully considering the record of trial and the
submissions 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
      While assigned as the leading petty officer in charge of two
Navy Recruiting Stations (NRS), the married appellant engaged in
sexual relationships with two future Sailors,1 CW and NE. The
appellant had sexual encounters with CW approximately ten times,
all at the Adrian, Michigan recruiting office. He had sexual
encounters with NE twice, both times at the Jackson, Michigan NRS.
Additionally, he both sexually harassed and attempted to form
prohibited personal relationships with two others, CB and ER.2
     The appellant’s attempt to form a personal relationship with
CB involved asking her, via text messages, to engage in sexual
acts. He repeatedly asked her to meet him alone at the recruiting
office. He also inquired as to whether she was on birth control,
and once implied they could have sex in a Government vehicle.
These requests and comments were not welcomed by CB.
     The appellant’s attempt to form a personal relationship with
ER involved asking her, via text messages, to send him sexual
photos of herself. These texts, sent by the appellant using his
government cell phone, were unwanted by ER.
     Unrelated to the appellant’s misconduct, another recruiter
assigned to the same NRS, Aviation Structural Mechanic Second

1
  A future Sailor is “[a]ny person who accesses into the [Delayed Entry Program]
of any of the Armed Forces and has agreed to commence active duty or active duty
for training at a later date.” Commander, Navy Recruiting Command Instruction
(COMNAVCRUITCOMINST) 5370.1F, dated 12 October 2011.
2
  The sexual relationships and attempts to form personal relationships were
prohibited by COMNAVCRUITCOMINST 5370.1F. The sexual harassment was prohibited
by COMNAVCRUITCOMINST 5354.2B, dated 19 August 2009.
                                       2
Class (AM2) O also had sex with CW and NE. According to CW, the
sex occurred before she applied to join the Navy. According to
AM2 O, the sex with NE occurred at AM2 O’s mother’s home.
     Initially, both the appellant and AM2 O were charged at
special courts-martial. The CA subsequently approved AM2 O’s
request for administrative separation in lieu of trial (SILT).
There is nothing in the record to indicate the appellant ever
requested a SILT.
     While the appellant’s original charges were pending special
court-martial, NE amended her statement to allege the appellant
had sexually assaulted her. After an investigation pursuant to
Article 32, UCMJ, the CA referred the present charges against the
appellant to a general court-martial.
     On 16 October 2013, the appellant entered into a pretrial
agreement in which he agreed to plead guilty to some of the
charges and specifications in exchange for, inter alia, the CA
withdrawing and dismissing without prejudice those charges and
specifications to which the appellant pleaded not guilty. These
withdrawn and dismissed charges included sexual assault, assault
consummated by a battery, and additional sexual harassment and
orders violations.
                       Disposition Disparity

     We review sentence appropriateness de novo. United States v.
Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). In determining
whether a sentence is appropriate we will only engage in sentence
comparison in the rare instances of highly disparate sentences in
closely-related cases. United States v. Lacy, 50 M.J. 286, 288
(C.A.A.F. 1999). If this threshold is met, we will then determine
whether any rational basis for the disparity exists. Id.
     As AM2 O was neither tried nor sentenced by a court-martial,
the issue before us involves differences of initial disposition,
rather than sentences. It is, however, within this court’s broad
power under Article 66(c), UCMJ, to consider such matters in
reviewing sentence appropriateness. United States v. Stotler, 55
M.J. 610, 612 (N.M.Ct.Crim.App. 2001) (citing United States v.
Noble, 50 M.J. 293, 295 (C.A.A.F. 1999).
     We note the great disparity between AM2 O’s administrative
discharge and the appellant’s conviction and punishment. However,




                                 3
we conclude the appellant’s and AM2 O’s offenses are not closely
related.3
     First, although the appellant and AM2 O were recruiters in
the same office engaged in similar misconduct, they did not do so
as part of any common scheme. There is little evidence either
knew of the other’s misconduct with the future Sailors while it
was occurring.
     Second, the appellant was in charge of the two NRS’s and
senior to AM2 O. The appellant was the most senior person in the
Navy with whom any of the future Sailors dealt during the
recruiting process.
     Third, there are important differences between the sexual
activity with the two women. The appellant used the two NRS’s to
engage in his sexual encounters. He used his Government cell
phone to arrange these encounters. And his sexual relationship
with these two future Sailors involved numerous meetings over many
months. There is no evidence in the record indicating the same of
AM2 O.
     Fourth, the appellant’s misconduct is significantly greater,
in both scope and magnitude. AM2 O’s misconduct appears to have
been limited, at most, to two violations of a lawful general
order, i.e., engaging in a sexual relationship with NE while she
was a future Sailor and taking three future Sailors on a trip to
an amusement park. In contrast, the appellant was accused of
sexual harassment, multiple general orders violations and
adultery.
     Assuming, arguendo, that the appellant and AM2 O’s cases were
closely related, we find both a rational basis for, and a lack of
improper or discriminatory intent in, the CA’s decision to dispose
of these cases in different ways.
     Moreover, even without the aforementioned differences between
the two cases, the CA was well-within his authority to refer the
charges against the appellant to a general court-martial. In
addition to the offenses to which he pleaded guilty, the appellant
was charged with sexual assault and assault consummated by a
battery. The Article 32, UCMJ, investigating officer found
probable cause to believe the appellant committed these offenses –
offenses clearly appropriate for referral to a general court-
3
  The Court of Appeals for the Armed Forces has given the following examples of
“closely related” cases: “coactors involved in a common crime, servicemembers
involved in a common or parallel scheme, or some other direct nexus between the
servicemembers whose sentences are sought to be compared[.]” Lacy, 50 M.J. at
288.
                                       4
martial. See Noble, 50 M.J. at 295 (finding it appropriate for a
Court of Criminal Appeals to cite charges of which an appellant
was acquitted for purposes of examining a CA’s decision to refer
an appellant’s case to a court-martial while administratively
disposing of a closely related case). We find this fact alone to
be a sufficient good and cogent reason for the difference in the
dispositions.
     The appellant also argues that, but for an unproven
allegation of sexual assault, he would not have found himself
before a general court-martial. That may be true, but the record
contains no evidence to indicate the CA did not believe NE’s
allegations, or that he considered the likelihood of conviction to
be negligible. Nor is there evidence showing the CA was swayed in
his referral decision by external pressures. What we do have is
an agreement by which the CA agreed to forego prosecution on those
serious charges in exchange for the appellant’s pleas at a general
court-martial. We decline to guess at the respective motivations
for this agreement, but note that the CA and appellant both
received the benefit of their bargain.

                     Sentence Appropriateness

     Having concluded the disparity in disposition of the
appellant’s and AM2 O’s cases does not establish grounds for
relief, we next examine whether the sentence is appropriate on its
own. In accordance with Article 66(c), UCMJ, a Court of Criminal
Appeals “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 determines, on the basis of the entire record, should
be approved.” 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 requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and 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)).

     After review of the entire record, we find that the sentence
is appropriate for this offender and his offenses. Furthermore,
we conclude that granting sentence relief at this point would be
to engage in clemency, a prerogative reserved for the CA, and we
decline to do so. Healy, 50 M.J. at 395-96.



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                            Conclusion

     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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