U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201400409
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UNITED STATES OF AMERICA
Appellee
v.
JOSHUA D. NEWLAN
Corporal (E-4), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Trial – Lieutenant Colonel L.J. Francis, USMC;
Rehearing -Lieutenant Colonel Brian E. Kasprzyk, USMCR.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, San Diego, California.
Staff Judge Advocate’s Recommendation: Lieutenant Colonel W.
Lee, USMC.
For Appellant: Captain Daniel R. Douglass, USMC.
For Appellee: Lieutenant Kimberly Y. Rios, JAGC, USN;
Captain Sean M. Monks, USMC.
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Decided 12 March 2018
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Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
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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.
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PER CURIAM:
This case is before us a second time. In our previous opinion, we set aside
the appellant’s conviction for sexual assault in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012), affirmed
his conviction for adultery in violation of Article 134, UCMJ, 10 U.S.C. § 934
United States v. Newlan, No. 201400409
(2012)1, set aside the sentence, and authorized a rehearing. United States v.
Newlan, No. 201400409, 2016 CCA LEXIS 540 (N-M. Ct. Crim. App. 13 Sep
2016).
Prior to the rehearing the appellant and convening authority entered into
a pretrial agreement resulting in the withdrawal of the sexual assault charge
and referral of an Addional Charge alleging an assault consummated by
battery in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2012).2 At the
rehearing, a military judge, sitting as a general court-martial, convicted the
appellant, pursuant to his plea, of assault consummated by battery. For both
the adultery conviction from his first trial and the assault conviction at the
rehearing, the military judge sentenced the appellant to reduction to pay
grade E-1 and nine months’ confinement. The convening authority approved
the sentence as adjudged and ordered it executed.
In his sole assignment of error, the appellant asserts that the court-
martial promulgating order and report of results of trial do not accurately
reflect his plea of not guilty at his first trial to Charge II and its sole
specification, adultery. We agree. Reviewing under a harmless-error
standard, we find that the error in the promulgating order “did not affect the
appellant’s substantial rights, since no prejudice was alleged or is apparent.”
United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1989).
However, an appellant is entitled to an official record that accurately reflects
the results of his proceedings. Id.
The findings and sentence are affirmed. Arts. 59(a) and 66(c), UCMJ. The
supplemental promulgating order will reflect that the appellant was
arraigned on Charge II and its sole specification on 25 October 2013; that he
pleaded not guilty to both Charge II and its specification; that he was found
guilty of that offense on 1 April 2014; and the findings as to that offense were
affirmed by the Navy-Marine Corps Court of Criminal Appeals on 13
September 2016.
For the Court
R.H. TROIDL
Clerk of Court
1 This offense was reflected as the sole specification of Charge II on the charge
sheet.
2 Appellate Exhibit I(R).
2