This opinion is subject to administrative correction before final disposition.
Before
TANG, LAWRENCE, and C. STEPHENS,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Casey T. BALAUSKY
Hull Technician Second Class (E-5), U.S. Navy
Appellant
No. 201900121
Decided: 29 August 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Jonathan T. Stephens, JAGC, USN. Sentence ad-
judged 7 January 2019 by a general court-martial convened at Naval
Base San Diego, California, consisting of a military judge sitting
alone. Sentence approved by the convening authority: reduction to
E-1, confinement for 45 months, and a dishonorable discharge. 1
For Appellant: Lieutenant Colonel Lee C. Kindlon, USMCR.
For Appellee: Brian Keller, Esq.
_________________________
1 The Convening Authority suspended confinement in excess of 34 months and
commuted the dishonorable discharge to a bad-conduct discharge pursuant to a
pretrial agreement.
United States v. Balausky, No. 201900121
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the approved findings and sentence are cor-
rect in law and fact and that no error materially prejudicial to Appellant’s
substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
However, we note that the court-martial order (CMO) does not accurately
reflect the findings. Although the CMO accurately reflects the Appellant
entered a plea of guilty by exceptions to the Specification of Charge I and
Specification 6 of Charge II, the CMO inaccurately reflects that the Appellant
was found guilty of those Specifications as charged. After the military judge
accepted Appellants pleas of guilty, the trial counsel moved to withdraw and
dismiss the language to which the Appellant entered pleas of not guilty. The
language was dismissed without prejudice, to ripen until prejudice upon
completion of appellate review. The military judge granted the motion. This
withdrawal is not documented in the CMO, which reflects that Appellant was
found guilty of the Specifications. Although we find no prejudice from this
scrivener’s error, the appellant is entitled to have court-martial records that
correctly reflect the content of his proceeding. United States v. Crumpley, 49
M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Accordingly, the supplemental
CMO shall properly reflect the findings of guilt to the Specification of Charge
I and Specification 6 of Charge II as modified before the military judge an-
nounced findings.
The findings and sentence as approved by the convening authority are
AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2