UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                           Specialist JEREMY N. NAVARETTE
                              United States Army, Appellant

                                       ARMY 20160786

                                 Headquarters Fort Drum
                             S. Charles Neill, Military Judge
                      Colonel Peter R. Hayden, Staff Judge Advocate

For Appellant: Captain Zachary A. Gray, JA (argued); Lieutenant Colonel Tiffany
M. Chapman, JA; Captain Todd W. Simpson, JA; Captain Zachary A. Gray, JA (on
brief).

For Appellee: Captain Joshua Banister, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief).

                                      17 September 2018
                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

      In July 2016, appellant arrived at a prearranged location to complete a sale of
cocaine, for $280, to a person appellant believed was a fellow soldier. While the
person was, in fact, a fellow soldier, she was also a law enforcement agent working
undercover. Appellant was observed completing the sale. Appellant confessed
during subsequent questioning by law enforcement. 1

1
 A panel of enlisted members sitting as a general court-martial convicted appellant,
contrary to his plea, of one specification of wrongful distribution of cocaine in
violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2012)
[UCMJ]. The panel sentenced appellant to a bad-conduct discharge, confinement for
90 days, forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.

                                                                                (continued . . .)
NAVARETTE—ARMY 20160786

       We discuss two issues in this appeal. First, we address appellant’s motion for
a Rule for Courts-Martial [R.C.M.] 706 inquiry into appellant’s mental capacity and
mental responsibility. We deny the motion. Second, we address appellant’s
assigned error that his bad-conduct discharge is too severe. It is not, and we affirm
the findings and sentence.

                                    Background

       On 15 July 2016, military law enforcement conducted a drug suppression
operation at a bar outside of Fort Drum, New York. Appellant was not a target of
the investigation. However, while at the bar appellant approached SGT KS, told her
that she was beautiful, and kissed her on the cheek. They later exchanged phone
numbers, and appellant invited SGT KS to a local party.

       Later, over text messages, appellant mentioned grabbing some liquor.
Sergeant KS responded that she was looking for something more, and asked
appellant if, “You [] don’t happen to have anything extra besides liquor?” Using
slang, appellant asked if she meant cocaine and marijuana. When SGT KS
confirmed that this was what she meant, appellant told her “You met the right
dude[.] How much you looking for?”

       Two weeks later appellant sold SGT KS 3.5 ounces of cocaine for $280.
There is no evidence that appellant used drugs. While appellant clearly had the
willingness and know-how to obtain a non-trivial amount of cocaine, there was no
direct evidence that appellant had distributed drugs on other occasions.

       At trial, appellant’s defense was that he was entrapped into selling drugs to
SGT KS to impress a pretty girl, not because he was a drug dealer. To support that
claim, appellant’s mental health played a prominent role. While appellant explicitly
disavowed a defense of mental responsibility, appellant did put on evidence that he
was of exceptionally low intelligence and was diagnosed with PTSD (not service
related). 2 This evidence was offered to show appellant’s suggestibility.

(. . . continued)
        Appellant’s case is now before us for review pursuant to Article 66, UCMJ.
Appellant asserts one assignment of error, which merits discussion, but not relief. 1
Appellant also personally raised matters pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). After due consideration, we find that appellant’s Grostefon
matters do not warrant discussion or relief.
2
 The evidence regarding appellant’s intelligence was inconsistent. Appellant put on
evidence that his Intelligence Quotient [IQ] was 58, or the bottom 00.3% of the
population. At trial, appellant’s defense counsel described his client’s intelligence

                                                                      (continued . . .)


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NAVARETTE—ARMY 20160786

       On appeal, appellant submitted evidence arising after trial regarding his
mental health. 3 Psychiatric records released to this court show that appellant entered
a Los Angeles grade school believing he was with the Federal Bureau of
Investigation [FBI], tasked with instructing children on how to respond to a terrorist
attack. Under unclear circumstances, appellant then crashed his car into a school
bus. Appellant was hospitalized for psychiatric care for well over a month. On 26
June 2018, appellant’s diagnosis at discharge was “Bipolar disorder 1, mania, with
psychosis.” Appellant’s discharge paperwork indicates he showed “remarkable
improvement . . . with complete resolution of psychotic symptomatology. . . .”
Appellant responded well to treatment and medication, his “[i]nsight and judgement
were good,” and his responses to questions were “appropriate and goal-directed.”

      Counsel on appeal have not claimed any difficulty in communicating with
appellant or stated a concern about his ability to assist with the appellate process.
When asked at oral argument whether there was such a concern, counsel declined to
answer the question citing the attorney-client privilege.

                           Motion for R.C.M. 706 Inquiry

      Appellant filed his brief with this court on 27 April 2018. On 30 July 2018,
appellant moved for us to stay the appellate proceedings and order an R.C.M. 706
inquiry. The basis for the inquiry is appellant’s present competence to participate in
the appellate proceedings. 4 Citing United States v. Massey, 27 M.J. 371, 374
(C.M.A. 1989) appellant requested that if we order an inquiry into appellant’s
current mental status, we should similarly order an inquiry into his mental
responsibility at the time of the offense.



(. . . continued)
as being “ten points lower than Forest Gump.” Having reviewed the entire record of
trial, to include appellant’s Enlisted Record Brief (ERB), his graduation from
several difficult military schools (to include Air Assault), and having seen
appellant’s ability to formulate goal directed answers to questions on both direct and
cross-examination, we find that appellant was of about average intelligence. See
Article 66(c), UCMJ (this court may make findings of fact).
3
 There was no objection to this court considering the records. We have no reason to
question their authenticity. For the purposes of deciding appellant’s motion for an
R.C.M. 706 inquiry, we treat them as true.
4
 To the extent that this was unclear from the motion, at oral argument counsel
confirmed that the primary basis for the R.C.M. 706 inquiry is appellant’s
competency.



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NAVARETTE—ARMY 20160786

       Under R.C.M. 1203(c)(5), MCM, 2016, “in the absence of substantial
evidence to the contrary, the accused is presumed to have the capacity to understand
and to conduct or cooperate intelligently in the appellate proceedings.” The rule
continues:

             If a substantial question is raised as to the requisite
             mental capacity of the accused, the appellate authority
             may direct that the record be forwarded to the appropriate
             authority for an examination of the accused in accordance
             with R.C.M. 706, but the examination may be limited to
             determining the accused’s present capacity to understand
             and cooperate in the appellate proceedings.

      Id. (emphasis added). 5

       Here, while there is clear evidence that appellant has significant mental health
issues, we do not find a substantial question to be raised regarding appellant’s
competency for three interrelated reasons.

      First, the most recent information we have (appellant’s discharge) is that he
responded well to treatment. Nothing in appellant’s discharge paperwork raises a
substantial question as to appellant’s competency.

       Second, appellant’s counsel has not asserted any actual claim that appellant
“is unable to understand the nature of the proceedings . . . or cooperate intelligently
in the defense of the case.” R.C.M. 909(a), MCM, 2016. At oral argument,
appellant’s counsel stated he had communicated with his client, but declined to say
whether the communication had revealed any competency concerns. While we
respect counsel’s declination to answer our question at oral argument, counsel did
state that he was in communication with his client. At least under these
circumstances, we see no need to test appellant’s claim that answering our question
would violate the attorney-client privilege, but in the absence of the answer we fall
back to the presumption that appellant is competent.




5
 As it was not briefed, we assume, without deciding, that the President has the
authority to prescribe a substantive rule of appellate procedure. But see Article 36,
UCMJ (authorizing the president to prescribe rules for pretrial, trial, and post-trial
procedures); and Article 66(f), UCMJ (“The Judge Advocates General prescribe
procedural rules for the Courts of Criminal Appeals . . . .”).



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NAVARETTE—ARMY 20160786

       Last, and of least importance, appellant submitted a brief to this court. We
trust and presume counsel submitted the brief within professional norms. 6

                                Severity of the Sentence

       Appellant asserts that a sentence that includes a bad-conduct discharge is too
severe. Limiting ourselves to the evidence admitted at trial, as well as appellant’s
post-trial submission, we disagree. 7

       While this Court has broad powers under Article 66(c), we may not act in
equity, nor may we grant clemency. United States v. Nerad, 69 M.J. 138 (C.A.A.F.
2010). To be sure, the line that separates the permissible “a carte blanche to do
justice” 8 and the impermissible (granting clemency) may be blurry to the point of

6
  We note that appellant submitted matters pursuant to Grostefon, 12 M.J. 431 , as
part of the appendix to his brief. He raised two issues asserting that he was
entrapped and the evidence was factually insufficient to support his conviction due
to law enforcement’s “rampant misconduct.” Although these matters do not warrant
relief, they also do not indicate appellant is unable to competently assist in his
appeal. Additionally, we note appellant has not moved to withdraw either the brief
or the appendix.
7
 This is explained by our superior court’s decision in United States v. Healy, 26
M.J. 394, 396-97 (C.M.A. 1988).

               [I]nformation submitted to the convening authority for
               clemency purposes will in some instances be part of the
               "record" which is considered by the Court of Military
               Review in determining sentence appropriateness.
               ....
               Although the Code provides a means after trial for an
               accused to get clemency-oriented information into the
               "record" prior to action by the convening authority and
               thereby can bring this information to the attention of the
               Court of Military Review, the Code does not provide an
               opportunity for the accused and his counsel to supplement
               the "record" after the convening authority has acted. We
               infer from this omission that Congress never intended that
               a Court of Military Review would be under any duty to
               receive additional information on sentencing after the
               convening           authority          had          acted.

8
    United States v. Claxton, 32 M.J. 159, 162 (C.A.A.F. 1991).



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NAVARETTE—ARMY 20160786

being indistinguishable. A cynic could critique our work as amounting to a
difference in word choice (“reasonable” and “just” vice “fair” and “equitable”)
rather than a difference in reasoning or result. To avoid the criticism that we are
taking measure by our own feet, 9 we exercise judicial discretion and restraint. Our
restraint is guided by the UCMJ, which requires our review under Article 66(c) to
recognize that the trial court saw and heard the witnesses.

       Here, appellant’s offense did not constitute minor misconduct and the case
was properly before a general court-martial. Evidence regarding appellant’s mental
health was properly before the court-martial and was included in the determination
of appellant’s sentence. While appellant’s misconduct is mitigated by the evidence
introduced regarding his mental health, that mitigation is already reflected in what
would otherwise be an unusually light sentence.

      Recognizing that the court-martial saw and heard the witnesses and evidence,
we find appellant’s sentence to be correct in law, correct in fact, and it should be
approved.

                                     CONCLUSION

       On consideration of the entire record, and the assigned errors, to include those
matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431, we hold
the finding of guilty and the sentence as approved by the convening authority are
correct in law and fact. Accordingly, the finding of guilty and the sentence are
AFFIRMED.

         Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                          FOR THE
                                          FOR THE COURT:
                                                  COURT:




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




9
    See Nerad, 69 M.J. at 155 (Stucky, J., dissenting).



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