UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.R. MCFARLANE, S.A. DOMINGUEZ

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ALEJANDRO B. AGUILAR

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201300464

GENERAL COURT-MARTIAL

Sentence Adjudged: 10 September 2013.

Military Judge: Col Howard Russell, USMCR.

Convening Authority: Commanding General, I MEF, U.S. Marine 

Corps Forces, Pacific, Camp Pendleton, CA.

Staff Judge Advocate's Recommendation: LtCol D.P. Harvey, 

USMC.

For Appellant: LT Jonathan M. Hawkins, JAGC, USN.

For Appellee: Maj Paul M. Ervasti, USMC; Capt Matthew M. 

Harris, USMC.

31 July 2014

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OPINION OF THE COURT 

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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.

PER CURIAM:

 

A military judge sitting as a general court-martial 

convicted the appellant, pursuant to his pleas, of two 

specifications of larceny, in violation of Article 121, Uniform 

Code of Military Justice, 10 U.S.C. § 921. The appellant was 

sentenced to confinement for three years, forfeiture of all pay 

and allowances, a $45,000.00 fine, reduction to pay grade E-1, 

and a bad-conduct discharge. The convening authority (CA) 
2

approved only so much of the sentence as provided for three 

years’ confinement, total forfeitures, a $45,000.00 fine, and a 

bad-conduct discharge.1 Pursuant to the terms of a pretrial 

agreement, the CA suspended all confinement in excess of 15 

months. 

The appellant raises two assignments of error: (1) that his 

fine was grossly disproportionate to his misconduct and thus 

excessive under the Eighth Amendment; and, (2) that a fine of 

$45,000.00 was inappropriately severe given the nature of the 

offense and the military character of the appellant. 

After careful consideration of the record of trial, the 

parties’ pleadings, and the appellant’s assignments of error, we 

conclude that the findings and sentence are correct in law and 

fact and that no error was committed that was materially 

prejudicial to the substantial rights of the appellant. Arts. 

59(a) and 66(c), UCMJ. 

Background

From June 2008 through June 2013, the appellant 

fraudulently received more than $100,000.00 by claiming Basic 

Allowance for Housing (BAH) to which he was not entitled. He

also fraudulently received Family Separation Allowance while 

deployed on two separate occasions between September 2008 and 

December 2010. The appellant received these funds based upon 

his representation that he had married a woman named BQ. While 

the record is unclear as to whether or not the appellant had 

legally married BQ in Mexico in 2002, the appellant verified 

that he received BAH beginning as early as January 2003, but did 

not provide any financial support to BQ while continuing to 

receive BAH funds.2

 While the record reveals that the appellant 

received the BAH funds under false and fraudulent pretenses for 

a period of approximately 10 years, the military judge’s 

imposition of a fine was tied to the funds he received during 

 

1 The CA’s action contains no reference to the military judge’s imposition of 

a reduction to pay grade E-1. Accordingly, the adjudged reduction was 

neither approved nor ordered executed. Nonetheless, a sentence which 

includes a bad-conduct discharge results in an automatic reduction to E-1 by 

operation of law. See Art. 58a, UCMJ. 

2 The appellant had no further contact with BQ following the execution of his 

orders to Iwakuni, Japan in early 2004. 
3

the relevant period within the statute of limitations consistent 

with the charged offenses. While imposing the appellant’s 

sentence, the military judge further advised that in selecting 

an appropriate fine, he had reviewed the Government’s evidence 

and attempted to determine the portion of the money the 

appellant would have received if he had independently claimed 

BAH benefits. 

Excessive Fines

The appellant first argues that the $45,000.00 fine is 

excessive and thus prohibited under the Eighth Amendment. In 

this regard, the appellant claims that the awarded fine is 

“grossly disproportionate” to his crimes. The Eighth Amendment 

prohibits the imposition of excessive bail, excessive fines and 

cruel and unusual punishment. 

To decide whether or not the appellant’s fine is barred by 

the Eighth Amendment, we must first determine if the fine falls 

within the Excessive Fines Clause of the Eighth Amendment, and 

if it does, we must then determine whether the fine is 

excessive. United States v. Bajakajian, 524 U.S. 321, 328-29

(1998). Since the fine imposed was to be paid to the Government 

as part of appellant’s sentence, the first prong of the analysis 

is met. United States v. Stebbins, 61 M.J. 366, 373 (C.A.A.F. 

2005). The second prong requires further analysis. As the 

Court in Stebbins noted:

“The touchstone of the constitutional inquiry under 

the Excessive Fines Clause is the principle of 

proportionality: The amount of the forfeiture must 

bear some relationship to the gravity of the offense 

that it is designed to punish.” Therefore, if a fine 

is “grossly disproportionate to the gravity of a 

defendant’s offense,” it violates the Excessive Fines 

Clause.

Id. (quoting Bajakajian, 524 U.S. at 334) (footnote omitted). 

The appellant freely admitted that he received over 

$113,000.00 in BAH funds between 19 June 2008 and 18 June 2013, 

even though he was not entitled to them. While the appellant 

argues that the Government has initiated steps to 
4

administratively recoup that money, that fact has no impact on 

the legality of the fine imposed. Whether or not the Government 

will ever be in a position to recoup its losses is speculative. 

The imposition of a $45,000.00 fine under these circumstances 

was proportionate to appellant’s misconduct and was not 

excessive under the Excessive Fines Clause of the Eighth 

Amendment. 

Severity of Sentence

 In his other assignment of error, the appellant avers

that his sentence, which includes a $45,000.00 fine, is 

inappropriately severe. The appellant contends that the quality 

and character of his military service, including his multiple 

combat deployments and his resulting injuries militate against 

such a fine, and the fine is thus inappropriate. 

Under Article 66(c), UCMJ, we independently review 

sentences within our purview and only approve that part of a 

sentence which we find should be approved. United States v. 

Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005). “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 “‘individualized consideration’ of the 

particular accused ‘on the basis of the nature and seriousness 

of the offense and character of the offender.’” United States 

v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United 

States v. Mamaluy, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). 

Upon review of the entire record in this case, including 

the appellant’s military character and the physical maladies he 

has suffered during his deployments, we find that a fine of 

$45,000.00, in addition to the punishment otherwise imposed, was 

appropriate for this offender and his misconduct. Given this 

finding, any consideration of appellant’s requested relief would 

amount to an act of clemency which is left to the “command 

prerogative” of the CA. Healy, 26 M.J. at 396. 
5

Conclusion

The findings and the sentence as approved by the CA are 

affirmed. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court