U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700076
_________________________
UNITED STATES OF AMERICA
Appellee
v.
DANIEL ACOSTA
Aviation Boatswain’s Mate (Handling) Airman (E-3), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Robert P. Monahan, Jr., JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate’s Recommendation : Commander Irve C.
Lemoyne, JAGC, USN.
For Appellant: Captain James S. Kresge, USMCR.
For Appellee: Lieutenant George R. Lewis, JAGC, USN.
_________________________
Decided 31 October 2017
_________________________
Before G LASER -A LLEN , M ARKS , AND W OODARD , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
PER CURIAM:
A military judge, sitting as a general court-martial, convicted the
appellant, pursuant to his plea, of assault consummated by battery in
violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 928 (2012). The military judge sentenced the appellant to forfeiture of all
pay and allowances and a bad-conduct discharge. The convening authority
United States v. Acosta, No. 201700076
(CA) approved the sentence as adjudged and, except for the bad-conduct
discharge, ordered the sentence executed.
In his sole assignment of error the appellant contends that his sentence to
a bad-conduct discharge is inappropriately severe considering his prior
service and the lack of noticeable physical injuries to the victim.1 After
careful consideration of the record of trial and the pleadings of both 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
occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
The appellant was stationed aboard USS GERALD R. FORD (CVN 78) in
Newport News, Virginia, where he met Aviation Boatswain’s Mate
(Handling) Airman Apprentice (ABHAA) SL. The two worked in the same
section on the ship, lived in the same barracks and began a romantic
relationship around April 2015. Shortly thereafter, in July 2015, the
appellant suspected ABHAA SL of cheating on him. He subsequently ended
the relationship while ABHAA SL was on leave in California.
When she returned from leave on 6 July 2015, ABHAA SL went to the
appellant’s barracks room to discuss their relationship. The appellant asked
to look at her phone, refused to give it back at her request after she handed it
to him, and took her keys from her. They began to argue, and decided to walk
over to ABHAA SL’s barracks room to continue their discussion. When they
arrived, ABHAA SL’s roommate was present, so they went into ABHAA SL’s
bathroom for privacy to continue their argument. The appellant locked the
door behind them and proceeded to forcefully drag ABHAA SL to the floor.
The appellant held ABHAA SL on the bathroom floor, seeking an
admission of infidelity from her. Despite her pleas and attempts to leave, the
appellant refused to let her go, while also recording the incident on her
phone. After approximately 25 minutes, the appellant let go of ABHAA SL
and allowed her to leave. The appellant kept ABHAA SL’s phone and keys,
and returned them later only after another Sailor intervened.
II. DISCUSSION
A. Sentence appropriateness
The appellant asserts that a bad-conduct discharge is inappropriately
severe considering the lack of noticeable physical injury to the victim, his
prior good service, and his potential for future service. We disagree.
1 This AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
2
United States v. Acosta, No. 201700076
We review 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). This requires our “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) (citation and internal quotation marks omitted). In making this
assessment, we analyze the record as a whole. Healy, 26 M.J. at 395. Despite
our significant discretion for determining appropriateness, we must remain
mindful that we may not engage in acts of clemency. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
The appellant attempts to reconcile his actions by noting the assault
involved “an emotionally charged situation,” and ABHAA SL “did not have
any noticeable physical injuries, so it is appropriate to categorize this
altercation as minor.”2 While the appellant’s service record and future
potential service are relevant in considering an appropriate punishment in an
Article 128, UCMJ, guilty plea, ABHAA SL did note ‘“[a]bdominal and neck
soreness”’ and “perineal micro-lacerations.”3 In aggravation, the military
judge allowed additional evidence through the victim’s statement. She noted
that the appellant also “digitally penetrated [the victim] against [her]
repeated and loud objections[.]”4 Even if there were no physical injuries, the
appellant’s conduct and its lasting impact on his victim is not minor. As a
result of the appellant’s actions, ABHAA SL experienced extensive emotional
harm, including trouble sleeping, hesitation in trusting fellow Sailors—
especially men, a personality change from “bubbly and open to reserved and
hesitant,” and newfound uncertainty about continuing her naval service.5
Considering the nature and seriousness of the appellant’s misconduct, the
emotional harm it caused the victim, the appellant’s otherwise honorable
service, and the evidence submitted in extenuation and mitigation, we find
that the sentence is appropriate for this offender and his offenses. United
States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96;
2 Appellant’s Brief of 7 Jun 2017 at 5.
3 Appellee’s Brief of 5 Jul 2017 at 5 (citing Prosecution Exhibit 4 at 3, 8)
(alteration in original).
4 Record at 71. This information was admitted in sentencing through the victim
impact statement and was considered part and parcel of the offense, though the
military judge noted “the court will only punish the accused for the assault
consummated by a battery offense to which he has been convicted.” Id. at 73-74.
5 Id. at 71-73.
3
United States v. Acosta, No. 201700076
Snelling, 14 M.J. at 268. Granting sentence relief at this point would be to
engage in clemency, which we decline to do. Healy, 26 M.J. at 395-96.
B. Incorrect court-martial order (CMO)
CMO 11-17 of 23 February 2017 incorrectly stated that the appellant pled
not guilty to the Article 128, UCMJ, charge. The CA attempted to correct this
error in a supplemental CMO 11A-17, of 9 March 2017. However, as noted in
our 20 March 2017 order, the supplemental CMO was moot since the CA no
longer had authority to act on the case. The appellant does not assert, and we
do not find, prejudice resulting from this error. Nevertheless, the appellant is
entitled to official records that correctly reflect the results of his proceedings.
United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
Accordingly, we order corrective action in our decretal paragraph.
III. CONCLUSION
The findings of guilty and the sentence as approved by the CA are
affirmed. The supplemental CMO shall correctly reflect that the appellant
pled guilty to Charge II and its sole specification.
For the Court
R. H. TROIDL
Clerk of Court
4