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

                             UNITED STATES, Appellee
                                         v.
                        Staff Sergeant GABRIEL C. GARCIA
                           United States Army, Appellant

                                      ARMY 20130660

       Headquarters, U.S. Army North Atlantic Treaty Organization (trial)
   Headquarters, U.S. Army Fires Center of Excellence and Fort Sill (rehearing)
                   Reynold P. Masterson, Military Judge (trial)
            Jeffery R. Nance, Military Judge (rehearing arraignment)
                    Marc Cipriano, Military Judge (rehearing)
      Lieutenant Colonel Michelle L. Ryan, Staff Judge Advocate (pretrial)
         Colonel Mark H. Sydenham, Staff Judge Advocate (post-trial)
         Colonel David E. Mendelson, Staff Judge Advocate (rehearing)

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Brendan
Cronin, JA; Captain Joshua B. Fix, JA; Captain Timothy G. Burroughs, JA; Captain
Cody Cheek, JA; Philip Cave, Esq. (on brief); Lieutenant Colonel Christopher D.
Carrier, JA; Major Brendan Cronin, JA; Captain Cody Cheek, JA; Philip Cave, Esq.
(on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Captain Jonathan S. Reiner, JA (on brief).


                                       6 October 2017
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       Appellant asserts that his bad-conduct discharge was inappropriately severe
for his convictions of maltreatment for sexually harassing two junior enlisted
soldiers. Appellant also asserts his sentence is inappropriately severe because of
this case’s long appellate history while appellant was confined. Considering the
entire record, to include appellant’s military and disciplinary record, we do not find
appellant’s sentence, as approved by the convening authority (CA), is
inappropriately severe.
GARCIA—ARMY 20130660

        This case is before us for review pursuant to Article 66, Uniform Code of
Military Justice, 10 U.S.C. § 866 (2012) [hereinafter UCMJ]. Appellant raises one
issue that merits discussion, but no relief. We have considered the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). While we discuss appellant’s claim of ineffective assistance of
counsel, we ultimately conclude his Grostefon matters lack merit and warrant no
relief.

                                  BACKGROUND

      In 2010, while stationed in Germany, appellant received nonjudicial
punishment pursuant to Article 15, UCMJ, (Art. 15) for two specifications of
maltreatment by sexually harassing subordinates.

       One specification was based on appellant sending an e-mail to a female
Private First Class (PFC) in his platoon. In e-mails, appellant referred to the PFC as
“sweetie.” He discussed her fitting into her clothes and referred to her as “chubs.”
He also stated that “fat or not you’re still cute and sexy.” Appellant asked the PFC
if she wanted to come to visit appellant. If so, he would cancel his plans with his
“Latvian blonde cutie.” The PFC felt uncomfortable and thought the e-mails were
inappropriate, so she forwarded them to a soldier in her unit for guidance.

        The other specification arose from appellant’s conduct towards a female
Specialist (SPC) in his unit. Appellant sent her an e-mail to come to his office.
When she arrived he was “partially undressed” (he had his pants, undershirt shirt,
and socks on) and it made her feel “awkward” to be in an office while appellant was
changing. Another time, appellant referred to the SPC as a “cutie.” Appellant also
told her he was conversing in sexual text messages with his girlfriend. The SPC
testified that these actions made her feel “uncomfortable” and “less as a person.”

       As part of the Art. 15 proceedings, appellant was punished by forfeiting
$1,200 pay, being restricted and performing extra duty for forty-five days, and
receiving a written reprimand. 1

       In 2013, the above two specifications of maltreatment were referred to court-
martial. An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of maltreatment, two specifications of
rape, and one specification of forcible sodomy in violation of Articles 93, 120, and
125, UCMJ (2006 & Supp. II 2009). The panel sentenced appellant to a
dishonorable discharge, confinement for five years, and reduction to the grade of

1
 At sentencing for both courts-martial, appellant received sixty-three days sentence
credit pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).

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GARCIA—ARMY 20130660

E-1. The CA approved the adjudged sentence and credited appellant with sixty-three
days of confinement credit.

        In 2015, this court set aside the findings of guilty for the specifications of
rape and forcible sodomy based on improper arguments made by the government
trial counsel during findings. United States v. Garcia, ARMY 20130660, 2017 CCA
LEXIS 335, at *22 (Army Ct. Crim. App. 18 Aug. 2015) (mem. op.). This court
affirmed the findings of guilty for the two maltreatment specifications. Id. at *29-
30. This court also set aside the sentence and authorized a rehearing. Id. at *30. At
the time the court set aside the sentence, appellant has served twenty-six months in
confinement. At the rehearing, the CA elected to proceed with a combined rehearing
on the merits for the rape and forcible sodomy specifications, along with the
sentence rehearing for the maltreatment specifications.

       In 2016, a military judge sitting as a general court-martial acquitted appellant
of the two specifications of rape and the one specification of forcible sodomy. At
the sentencing rehearing, the government presented aggravation evidence for the
maltreatment offenses. The government also presented evidence of appellant’s prior
service and rehabilitative potential. 2

       Appellant’s prior service records included four additional Art. 15s. In 2004,
appellant received an Art. 15 for driving a vehicle while drunk and fleeing the scene
of an accident. As part of his punishment, he was reduced in rank from Staff
Sergeant to Sergeant. In 2007, appellant received an Art. 15 for misusing
government equipment by sending a sexually explicit e-mail to another female SPC.
In 2010, appellant received an Art. 15 for misuse of government equipment and
maltreatment of a SGT by sexually harassing her. In 2012, appellant received an
Art. 15 for having an inappropriate relationship with a female Private (E-2).

      The government also introduced two of appellant’s noncommissioned officer
evaluation reports (NCOER). In one NCOER, the rater checked “No” for the Army
value of “Respect/EO/EEO” and the senior rater assessed appellant’s overall


2
 The government presented a Prisoner Observation Report for appellant allegedly
making provoking speech and gestures during his confinement. The content of the
report is similar to a counseling statement. Appellant’s defense counsel did not
object to the introduction this exhibit. With the proper foundation, prisoner
disciplinary records are admissible for sentencing under R.C.M. 1001(b)(2). United
States v. Solt, ARMY 20130029, 2016 CCA LEXIS 739 (Army Ct. Crim App. 29
Dec. 2016) (summ. disp.). Given appellant’s explanation of the extenuating
circumstances for receiving the report and that no adverse action was taken by the
disciplinary barracks against appellant, the reports were not very probative of
appellant’s rehabilitative potential.
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GARCIA—ARMY 20130660

potential for promotion as “marginal.” In the other NCOER, the rater checked “No”
for the Army value of “Honor” and “Integrity.” Appellant’s service record also
included being disqualified from receiving a Good Conduct Medal. The government
also called a Sergeant First Class (SFC) to give an opinion of appellant’s
rehabilitative potential. The SFC testified that appellant had “poor rehabilitative
potential.”

       At the sentence rehearing, appellant made an unsworn statement. Appellant’s
defense counsel introduced appellant’s Good Soldier Book, which included appellant’s
awards, NCOERs, Letters of Commendation, and training certificates. The NCOERs
included multiple positive evaluations where the rater checked “Yes” for displaying
Army values, and senior raters assessed appellant’s overall potential for promotion as
“superior.” The defense counsel also presented an estimate of appellant’s potential
retirement benefits from the U.S. Army Audit Agency (USAAA).

      Appellant’s Enlisted Record Brief (ERB) was also introduced at sentencing.
Appellant entered the Army in 1993. The ERB showed that appellant deployments
included a seven-month tour in Iraq and a six-month tour to the Former Republic of
Yugoslavia. While deployed in Iraq, appellant earned a Combat Infantry Badge
(CIB). Appellant’s award included one Army Commendation Medal (ARCOM) and
eleven Army Achievement Medals (AAM).

       After the sentence rehearing for the two maltreatment specifications, the
military judge sentenced appellant to a bad-conduct discharge, confinement for two
months, and reduction to the grade of E-3.

        Appellant’s submission to the CA pursuant to Rules for Courts-Martial
[hereinafter R.C.M.] 1105 and 1106, included five mitigation letters. In addition to
letters from family and friends, one of the letters was from a retired Command
Sergeant Major (CSM) that served with appellant, including appellant’s deployment
to Iraq. The CSM discussed appellant’s “stellar” performance, the “numerous times”
appellant helped the unit, and “not flinching in harm’s way.”

      The CA approved the adjudged sentence and credited appellant with 850 days
of confinement credit. 3



3
  This calculation involved 787 days of credit pursuant to United States v. Allen, 17
M.J. 126 (C.M.A. 1984) for appellant’s twenty-six months of confinement between
his initial trial and appellate relief, and an additional sixty-three days of Pierce
credit for having received a prior punishment pursuant to Art. 15, UCMJ, for both of
the maltreatment specifications.

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GARCIA—ARMY 20130660

                             LAW AND DISCUSSION

                            1. Sentence Appropriateness

       The appellant asserts that the portion of his sentence that includes a bad-
conduct discharge is inappropriately severe and warrants relief under Article 66(c),
UCMJ. In support of his claim, appellant highlights his over twenty-year service
record that includes multiple deployments and a CIB for combat in Iraq. Appellant
asserts that he received a bad-conduct discharge for the same conduct that was
previously adjudicated through nonjudicial punishment. Appellant also requests the
court to consider his 787 days of confinement before this court set aside part of the
findings in his first trial and ordered a rehearing. We disagree that the sentence is
inappropriately severe.

       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)). We “may affirm only such findings of
guilty and the sentence or such part or amount of the sentence, as [we find] correct
in law and fact and determine [], on the basis of the entire record, should be
approved.” UMCJ art. 66(c). “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, __ M.J.
__, 2017 CCA LEXIS 593, at *5-6, 9 (Army Ct. Crim. App. 5 Sep. 2017) (citing
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)). 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. Lacy, 50
M.J. 286, 287-88 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394, 395-96
(C.M.A. 1988).

       The maximum punishment for the maltreatment offenses included a
dishonorable discharge, twenty-four months confinement, and reduction to E-1. The
appellant’s approved sentence was a bad-conduct discharge, confinement for sixty-
three days, and reduction to E-3.

        We have given individualized consideration to this particular appellant, the
nature and seriousness of the offenses, appellant’s record of service, the record of
trial, and other matters presented by appellant in extenuation and mitigation (to
include R.C.M. 1105 and 1106 matters). The incidents of maltreatment by sexual
harassing junior soldiers were serious offenses and undermined appellant’s status as
a noncommissioned officer (NCO). We note that appellant served in combat and
received the CIB in Iraq. We also note appellant’s considerable disciplinary history
consisting of four or five nonjudicial actions under Art. 15, UCMJ. Two of these
Art. 15s, involved similar types of sexual harassment and maltreatment of
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GARCIA—ARMY 20130660

subordinate offenses as his convictions at trial. Appellant also received negative
NCOERs and was disqualified for the Good Conduct Medal. Finally, we note that
Article 66(c), UCMJ, requires us to take into account that the trial court saw and
heard the evidence. We hold that the approved sentence, which includes a bad-
conduct discharge, is not inappropriately severe. Healy, 26 M.J. at 395-96 (C.M.A.
1988); Snelling, 14 M.J. at 268.

                         2. Ineffective Assistance of Counsel

        In appellant’s initial appeal of his first court-martial trial, appellant
personally asserted, in his Grostefon matters, that his defense counsel committed
“error” in failing to request dismissal of the maltreat specifications. Appellant
asserted, and again asserts, that the maltreatment specifications were “minor
misconduct” for which he had already been punished under Art. 15, UCMJ. In his
initial appeal, this court found that appellant’s claim that the maltreatment
specifications were minor misconduct and his defense counsel committed error for
failing to file a motion to dismiss lacked merit.

        In his unsworn Grostefon matters in this current appeal, appellant again
asserts his defense counsel in the original trial was ineffective for failing to get the
trial court to dismiss the maltreatment specifications as minor misconduct.
Appellant asserts he discussed the motion to dismiss with his defense counsel and
his defense counsel disagreed that a motion to dismiss should be filed with the court.
Although this matter was already decided by the court in the first appeal, we will
discuss appellant’s renewed claim of defense counsel error in this current appeal.

       We review de novo claims that an appellant did not receive the effective
assistance of counsel. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). In
assessing the effectiveness of counsel we apply the standard set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984). The Strickland standard requires
appellant to demonstrate “both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360,
361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).

      Under the circumstances of this case, we see no need to order affidavits from
counsel or a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967). In analyzing appellant’s claims, we do not need to
resolve whether or not the motion to dismiss was actually discussed or solicit
defense counsel’s opinions on whether the maltreatment charges were or were not
“minor offenses.” By reviewing the record, this court can weigh the factors outlined
in R.C.M. 907 and make a determination of prejudice, if any.

      Appellant has not met his burden of establishing that the maltreatment
offenses were “minor” and that if his defense counsel had filed a motion to dismiss
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GARCIA—ARMY 20130660

it would have been granted. In failing to meet his burden, we note appellant cites no
case where maltreatment has been found to be a “minor” offense nor resulted in the
maltreatment specifications being dismissed.

       Furthermore, if a subordinate commander imposes nonjudicial punishment for
an offense that is not “minor,” the senior commander is not precluded from referring
the matter for trial by court-martial. UCMJ, art. 15(f); R.C.M. 907(b)(2)(D)(iv);
United States v. Fretwell, 11 C.M.A. 377, 379, 29 C.M.R. 193, 195 (1960). For
“minor offenses” previously punished under Art. 15, UCMJ, the defense can file a
motion to dismiss. R.C.M. 907(b)(2)(D)(iv). The motion is waived if not asserted
by the accused at trial. R.C.M. 907(b)(2). Although there is no bright-line rule on
what UCMJ offenses are minor, the Manual for Courts-Martial, United States (2016
ed.) [hereinafter MCM] lists the factors a court should consider when deciding a
motion to dismiss for a minor offense:

      the nature of the offense and the circumstances surrounding its
      commission; the offender’s age, rank, duty assignment, record and
      experience; and the maximum sentence imposable for the offense if
      tried by general court-martial. Ordinarily, a minor offense is an
      offense which the maximum sentence imposable would not include a
      dishonorable discharge or confinement for longer than 1 year if tried by
      a general court-martial.”

MCM pt. V, ¶ 1e.

       First, considering the general nature of the offense of maltreatment by
sexually harassing a subordinate, the court notes that maltreatment is not ordinarily
a minor offense. Article 93, UCMJ, is focused on preserving the integrity of the
superior-subordinate relationship. United States v. Caldwell, 75 M.J. 276, 281
(C.A.A.F. 2016) (recognizing the “unique and long-recognized importance of the
superior-subordinate relationship in the United States armed forces, and the deeply
corrosive effect that maltreatment can have on the military’s paramount mission to
defend our Nation.”) Similarly, sexual harassment undermines the superior-
subordinate relationship and undermines good order and discipline. The maximum
punishment for an Art. 93, UCMJ, maltreatment offense, which includes a
dishonorable discharge, further undermines appellant meeting his burden of
establishing that the offense is minor. On the other hand, since the maximum
sentence confinement for maltreatment is one year, this weighs slightly in favor of
appellant establishing the maltreatment could be considered a minor offense.

      Second, the circumstances surrounding the commission of appellant’s offenses
weigh against appellant establishing that his maltreatment offenses for sexual
harassment were minor offenses. Appellant sexually harassed a Private First Class
and a Specialist in his unit. At the time appellant committed the offenses, he was a
                                          7
GARCIA—ARMY 20130660

married, forty-two year old, Staff Sergeant. He was serving as a Senior Information
Systems Manager. He had served in the Army for sixteen years and had been
deployed to a combat zone twice. Both soldiers were negatively impacted by the
sexual harassment. Based on his rank, age, duty assignments, and military record
and experience, appellant should have understood the wrongfulness and seriousness
of his offenses and negative impact on good order and discipline. In fact, prior to
receiving the Art. 15 for maltreatment by sexual harassment, he had received another
Art. 15 for sending a sexually explicit e-mail to a SPC.

       The court concludes, after considering the record and all the factors and
circumstances, that appellant has not met his burden of establishing that the two
Article 93, UCMJ, maltreatment offenses were minor offenses. Appellant cannot be
prejudiced by failing to a raise a motion that would not have entitled him to relief.
Therefore, appellant has not met his burden of establishing his defense counsel was
ineffective in failing to file a motion to dismiss.

                                   CONCLUSION

      On consideration of the entire record, to include the issues personally raised
by appellant, we are satisfied the findings are correct in law and fact and that the
sentence is appropriate. Therefore, the findings of guilty and the sentence are
AFFIRMED.

      Senior Judge MULLIGAN and Judge WOLFE concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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