This opinion is subject to administrative correction before final disposition.
Before
GASTON, GERRITY, and STEWART
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Tyler J. MIRRA
Damage Controlman Fireman Apprentice (E-2), U.S. Navy
Appellant
No. 202000062
Decided: 30 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Michael J. Luken
Sentence adjudged 25 November 2019 by a special court-martial con-
vened at Naval Station Norfolk, Virginia, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: confinement
for 5 months, reduction to E-1, and a bad-conduct discharge.
For Appellant:
Lieutenant Commander Erin L. Alexander, JAGC, USN
For Appellee:
Lieutenant Joshua C. Fiveson, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
United States v. Mirra, NMCCA No. 202000062
Opinion of the Court
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Uniform Code of Military Justice arts. 59, 66, 10 U.S.C.
§§ 859, 866.
However, Appellant’s request for deferment of the adjudged reduction and
automatic forfeitures was summarily denied by the convening authority
without stating the basis for doing so. “When a convening authority acts on
an accused’s request for deferment of all or part of an adjudged sentence, the
action must be in writing (with a copy provided to the accused) and must
include the reasons upon which the action is based.” 1 Accordingly, the failure
to state in writing the basis for the denial of a deferment request constitutes
error. 2 We review the denial of a request for deferment for an abuse of discre-
tion. 3 However, when a convening authority does not state a reason for its
action, we are left unable to assess any abuse of discretion since “the basis for
the exercise of that discretion is unknown.” 4 Therefore, “we must inde-
pendently review the facts of this case and determine whether deferment was
appropriate, and if it was, what remedy should follow.” 5
Our analysis of the factors enumerated in R.C.M. 1103(d)(2) convinces us
that it was appropriate to deny the deferral request. Appellant’s crimes
involve desertion for over seven months terminated by Appellant’s apprehen-
sion by law enforcement and an assault consummated by a battery in which
1 United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992).
2 Id.
3 United States v. Brownd, 6 M.J. 338, 340 (C.M.A. 1979).
4 Sloan, 35 M.J. at 6.
5 United States v Phillips, No. 200400865, 2006 CCA LEXIS 61 at *28-29 (N-M.
Ct. Crim. App. Mar. 16, 2006) (unpublished).
2
United States v. Mirra, NMCCA No. 202000062
Opinion of the Court
Appellant placed his hands upon the neck of a female victim. These offenses
and the facts underlying them are serious, and he was sentenced to five
months’ confinement, reduction to E-1, and a bad-conduct discharge. Under
R.C.M. 1103(d)(2), Appellant has the burden of showing that the interests of
Appellant and the community in deferral outweigh the community’s interest
in imposition of the punishment on the effective date. In balancing the
asserted interests of Appellant—to help him financially so that he could pay
for his car—against the seriousness of the crimes and the sentence, we find
Appellant did not meet his burden. It was therefore appropriate for the
convening authority to deny the deferment request. Accordingly, we conclude
that Appellant did not suffer any prejudice from the convening authority not
articulating in writing the specific reasons for his denial.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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