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

                                  Before
              J.A. FISCHER, K.M. MCDONALD, T.J. STINSON
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JOSE A. ROJAS, JR.
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                            NMCCA 201400292
                         SPECIAL COURT-MARTIAL


Sentence Adjudged: 15 April 2014.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding General, Marine Air Ground
Task Force Training Command, MCAGCC, Twentynine Palms, CA.
Staff Judge Advocate's Recommendation: LtCol R.J.
Ashbacher, USMC.
For Appellant: LT David Warning, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                              14 May 2015

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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.

STINSON, Judge:

     A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of violating a lawful general order, one
specification of wrongful use of D-amphetamine and one
specification of wrongful possession of testosterone enanthate-a
steroid, in violation of Articles 92 and 112a of the Uniform
Code of Military Justice (UCMJ) 10 U.S.C. §§ 892 and 912a. The
military judge sentenced the appellant to six months’
confinement, reduction in rate to E-1, and a bad-conduct
discharge. Pursuant to a pretrial agreement, the convening
authority suspended all confinement in excess of time served
(130 days), but otherwise approved the sentence.

     In his sole assignment of error, the appellant avers that a
bad-conduct discharge is inappropriately severe in light of his
sixteen years of creditable service and significant combat
experience. Additionally, this court specified an issue
concerning whether the military judge abused his discretion by
failing to inquire whether a possible defense existed after
evidence was introduced during presentencing that the appellant
was diagnosed with post-traumatic stress disorder (PTSD).

     After careful consideration of the record of trial, the
appellant's assignment of error, the court’s specified issue,
and the pleadings of the parties, we conclude that the findings
and 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

     In July 2013, the appellant tested positive for D-
amphetamine during a unit urinalysis. Later, base police
recovered a vial of steroids and several items of drug
paraphernalia when responding to a call regarding a domestic
dispute at the appellant’s on base residence. The appellant
also drove on base while his driving privileges were revoked.

     During the Government’s case in presentencing, Master
Gunnery Sergeant IR was called as a witness and provided the
following testimony:

     TC:  Talk to me about post-traumatic stress disorder
          within the unit.
     Wit: Um.

     TC:   And let me clarify. What environment is there in
           the unit for coping with, addressing the issue
           resulting of post-traumatic stress disorder?

     Wit: The climate for it is one of complete
          understanding, complete support. Myself,
          individually, suffering from PTSD for a very long

                                2
      time, I take it extremely serious. I take any
      and every opportunity to speak with the Marines
      at that command about PTSD, about my personal
      situation, of what I went through, what I
      continue to go through, what I did to deal with
      it, ensure that they know what services are
      available, make those services available. If I
      need to get involved, have involved TBI
      counselors, PTSD counselors in to provide
      specific command briefing, putting people in
      contact with those. Knowing a personal thing,
      because it’s a very personal thing, but I made
      every opportunity to afford that to any of the
      Marines there.

TC: And by “there” you’re refer to go your present –
Wit: Yes, sir, at MCTOG.

TC:  If a staff NCO has PTSD, does that impact his
     ultimate responsibilities to his Marines?
Wit: No. Suffering from PTSD does not relieve you
     from your responsibilities as a Marine, as a
     leader. It means you have some additional
     challenges in your life, in your career that you
     need to address. And it can be dealt with. I’m
     a perfect example of that, if you will, because
     I’ve continued to be successful in the Marine
     Corps in spite of PTSD, and TBI’s for that
     matter.

TC:   In your 22-year career, have you dealt with other
      Marines of any rank that also have been impacted
      by PTSD/TBI?

DC:   Objection, sir. I think we’re pretty off the
      wall right now. Relevance.
MJ:   Sustained. I’m assuming that at some point
      there’ll be some information that the accused
      suffered from PTSD because otherwise none of this
      would make any sense. So are you trying to rebut
      an anticipated case by the defense?

TC:   At the end of the SRB there is a PTSD screening
      form, your Honor.
MJ:   Okay.



                            3
        TC:   Which indicates that the accused suffers from
              post-traumatic stress disorder. So in
              anticipation of rebutting that, your Honor.
              MJ: Okay. And what is the purpose of asking
              this witness his experiences with other people
              who have suffered PTSD?

        TC:   As to how they respond to the injury, Your Honor,
              and whether they are involved in misconduct. You
              know, whether having PTSD automatically means you
              do misbehavior within the Marine Corps.
        MJ:   Okay. I’m going to sustain the objection. 1

     The PTSD screening form referenced during the above
colloquy was introduced by the Government as part of the
appellant’s service record and is dated 19 February 2014,
approximately two months prior to the guilty plea date. The
form indicates that the appellant screened positive for PTSD and
negative for Traumatic Brain Injury (TBI). Further, in the
document, the screening physician states: “Based upon his
history of PTSD this may have been a contributing factor behind
his misconduct.” 2

     The military judge did not re-open the providence inquiry
or specifically question the appellant or the trial defense
counsel regarding potential defenses associated with the
appellant’s PTSD. In reviewing the record of trial, we note
that the stipulation of fact 3 repeatedly, although generically,
states that the appellant had no legal excuse or justification
for his conduct related to each offense to which he pled guilty.
Further, during his unsworn statement, after relaying traumatic
combat events from Afghanistan and Iraq, the appellant asserted
that he did not believe that he had any legal justification to
use methamphetamine and that he had other options to address
PTSD, such as help through the chain of command, Military One
Source, and mental health service providers, rather than
resorting to drug use. 4 Finally, the trial defense counsel, in
his closing argument, addressed the impact of PTSD on his client
in arguing for a lighter sentence, but disavowed any reliance on
any related defense, specifically stating, “[a]nd are those

1
    Record at 221-22.
2
    Prosecution Exhibit 2 at 67.
3
    PE 1.
4
    Record at 253.
                                    4
experiences a justification or an excuse for his conduct, for
using drugs? They’re not. And he stood up here and he claimed
responsibility and he took ownership of those mistakes.” 5

                                  Analysis

       Inquiry into Possible Defense Based on Diagnosis of PTSD

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2006). Once the military judge has
accepted the pleas, an appellate court should not disturb those
findings unless there is a substantial conflict between the
pleas and later statements by the accused or other evidence of
record. United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F.
2007). When, either during the plea inquiry or thereafter, a
possible defense is raised, the “military judge has a duty to
inquire further to resolve the apparent inconsistency.” United
States v. Phillipe, 63 M.J. 307, 310-11 (C.A.A.F. 2006).
However, there must be a “substantial basis” in law or fact for
questioning the guilty plea and the “mere possibility” of a
defense does not require the military judge to re-open
providency or inquire further. Inabinette, 66 M.J. at 322. The
line between a “possible defense” and the “mere possibility of a
defense” is not easily discernible and has been called somewhat
amorphous. United States v. Hayes, 70 M.J. 454, 458 (C.A.A.F.
2012). Further, not every mitigating statement requires
additional inquiry by the military judge. Id.

      An affirmative defense by definition constitutes matters
inconsistent with the plea under Article 45 of the Uniform Code
of Military Justice. Id. RULE FOR COURTS-MARTIAL 910(h)(2), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) provides that, “If after
findings but before the sentence is announced the accused makes
a statement to the court-martial, in testimony or otherwise, or
presents evidence which is inconsistent with a plea of guilty on
which a finding is based, the military judge shall inquire into
the providence of the plea.” 6 The information introduced after
findings does not need to raise a complete defense, it is
sufficient to trigger a duty to inquire further if it raises a

5
    Id. at 269.
6
  Although the evidence in this case regarding PTSD was first introduced by
the Government, we do not find that distinction relevant for purposes of our
review as the ultimate question is whether the military judge had an
independent obligation to conduct additional inquiry based on the
inconsistent information.
                                      5
possible defense. Phillipe, 63 M.J. at 310. The duty to
inquire reflects concern that “‘there may be subtle pressures
inherent to the military environment that may influence the
manner in which service members exercise (and waive) their
rights.’” Phillipe, 63 M.J. at 310 (quoting United States v.
Pinero, 60 M.J. 31, 33 (C.A.A.F. 2004)). Whether further
inquiry is required as a matter of law is a contextual decision.
Shaw, 64 M.J. at 464. In addition, we are mindful of issues
related to mental health conditions in light of the significant
number of service members who have served multiple combat tours
in high stress environments.

     A military judge may reasonably rely on both a presumption
that the accused is sane and the long standing principle that
counsel is presumed to be competent. In addition, absent
evidence to the contrary, the military judge may presume that
counsel has conducted a reasonable inquiry into the existence of
defenses, including defenses related to the mental health of the
appellant. Shaw, 64 M.J. at 463. Here, the defense counsel
engaged in specific dialogue with the appellant regarding the
potential for a legal justification or excuse for the conduct at
issue. The appellant asserted that he had no justification or
excuse and the defense counsel argued in mitigation that the
appellant’s acceptance of responsibility should be considered in
determining an appropriate sentence. Additionally, the record
does not reveal any indication that the appellant was unable to
appreciate the nature and quality or the wrongfulness of his
acts. Id. Indeed, during the providence inquiry the appellant
stated that he knew that what he was doing was wrong. 7

     As the court noted in Shaw, it may be prudent for a
military judge to conduct further inquiry when a significant
mental health condition like PTSD is raised. However, where the
defense counsel is aware of the diagnosis and asks his client on
the record about the possibility of a legal excuse or
justification and makes affirmative representations regarding
the lack of a defense, we find that the military judge did not
abuse his discretion by failing to re-open the providence
inquiry to conduct additional inquiry into the appellant’s PTSD
diagnosis.




7
  Record at 194. “Wrongful, sir, because since I joined in 1998, use of
illicit drugs is not tolerated and illegal, sir. I have been a verifier form
many urinalysis tests, so I knew full well on my own cognizance that it was
illegal, sir.”
                                     6
                    Sentence Appropriateness

     This court reviews sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). 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). As part of that review, we give “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and 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 was convicted of specifications related
to violating lawful general orders and drug offenses. While the
appellant’s creditable and honorable service weighs into our
individual consideration of the appropriateness of the sentence,
we conclude that, based on the entire record, justice was served
and the appellant received the punishment he deserved.

                         Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.

   Senior Judge FISCHER and Judge MCDONALD concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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