## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Master Sergeant ALFRED L. PEMBERTON United States Army, Appellant

ARMY 20110127

Headquarters, III Co rps and Fort Hood Michael J. Hargis, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Mr. Frank J. Sp inner, Esquire (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Ch ad M. Fisher, JA; Captain Samuel Gabremaria m, JA (on brief).

17 May 2013

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

YOB, Senior Judge:

A military judge sitting as a special court-martial convicted appellant, contrary to his pleas, of two specifications of maltreatment of a person subject to his orders, four specifications of wrongful sexual contact, tw o specifications of indecent exposure, and one specification of assault, in violation of Articles 93, 12 0, and 128, Uniform Code of Military Ju stice, 10 U.S.C. §§ 893, 920, 928 ( 2006 and Supp. III 2009) [hereinafter UCMJ]. Th e military judge sentenced ap pellant to a bad-conduct discharge, confinemen t for twelve months, and reduction to the grade of E-1. The convening authority (CA) approved the sentence as adjudged. The CA denied appellant’s requests to defer automatic fo rfeitures and the adjudged reduction in rank, and also denied appell ant’s request to waive automa tic forfeitures for a period

of six months.PEMBERTON — ARMY 20110127

2 The case is before this court for review under Article 66, UCMJ. We have

considered the record of tr ial and written briefs of th e parties in which appellant raises two assignments of error.

The first assignment of er ror alleges the evidence wa s legally and factually insufficient to support the findings. Artic le 66, UCMJ, provides that a Court of Criminal Appeals “may affirm only such findi ngs of guilty . . . as it finds correct in law and fact.” In pe rforming this duty, this court must conduct a de novo review of both the legal and factua l sufficiency of appell ant’s convictions. United States v. Washington , 57 M.J. 394, 399 (C.A.A .F. 2002). The test fo r legal sufficiency is “whether, after viewing the evidence in th e light most favorable to the prosecution,

any rational trier of fact coul d have found the es sential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); United States v. Phillips , 70 M.J. 161, 166 (C.A.A .F. 2011). The test for factual sufficiency, on the other hand, “involves a fresh, impartial look at the evidence, givi ng no deference to

the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard

the witnesses.” Washington , 57 M.J. at 399.

At the time of the offenses that led to his conviction, appellant was the first sergeant of a medical suppor t company based at Fort Hood and depl oyed to Iraq. The charges involve a series of unwelcom e sexual advances by appellant towards

four female soldiers in his unit, two of whom were enlist ed soldiers subordinate to his authority and two of whom were junior o fficers (a first lieutenant and a second lieutenant). All four of the victims testified during the government’s case in chief that appellant had either unexpectedly grab bed and tried to kiss them, fondled them, exposed his penis, or grabbed their hand an d forced them to to uch his penis. All these actions happened in appellant’s office , the workplace, or du ring official work related conversations. The victims expresse d feelings of surprise at these sudden,

unwanted sexual advances from someone w ho was part of the co mmand leadership.

Another government witness lent cr edence to one victim’s account by testifying that the victim appeared upset and emotionally di straught immediately

after an incident in which the victim said appellant in decently exposed himself to

her. Defense counsel call ed a witness who described this victim as looking “distressed” when she emerged from appe llant’s office after he had indecently exposed himself to her. The witness said he felt the need to ask the victim if she was “all right.”

Appellant’s defense counsel argued that appellant’s ac tions towards the enlisted victims, as descri bed in their testimony, did not amount to maltreatment. Counsel also argued the officer victims had expressed a romantic interest in appellant and therefore had a motive to lie ab out his advances, but the evidence introduced at trial pr ovided little support fo r this theory. He ultimately argued inPEMBERTON — ARMY 20110127

3 the alternative that the inci dents described in the victim s’ testimony did not happen, but if they did happen, everything desc ribed was consensual. Evidence of this alternative theory is likewise absent. Therefore, we find the evidence presented at trial meets the standards of legal and factual sufficiency necessary to support the findings of guilty fo r the charges of which appellant was convicted.

We next turn to appellant’s second assignment of error, which concerns sentence appropriatenes s. Appellant argues that his punitive discharge was too great a punishment considering his length of serv ice, twenty-seven years at the time of trial; the fact that the offe nses were committed after he was retirement eligible; and the tremendous negative impact on appellant and his family from the loss of anticipated retirement income and benefits. 1 Specifically, appe llant proclaims that,

“It is unfortunate that the loss of retirement benefits for family members are tied by

law to the execution of a punitive discharge.” Appellan t suggests, “[ I]f Congress

will not ameliorate the deleterious impact of this connection, then it is appropriate for the Courts of Criminal Appeals to rec ognize and balance the harsh effects of the

law.”

We review sentence a ppropriateness de novo. United States v. Bauerbach , 55 M.J. 501, 504 (Army Ct. Crim . App. 2001). Pursuant to our discretion ary authority to review sentence appropriateness under Article 66, UC MJ, we make our determination by granting each appellant “i ndividualized consider ation” in light of

“the nature and seriousnes s of the offense a nd the character of the offender. United States v. Snelling , 14 M.J. 267, 268 (C.M .A. 1982) (quoting United States v. Mamaluy , 10 U.S.C.M.A. 102, 106–07, 27 C.M.R. 17 6, 180–81 (1959)). Determining sentence appropriateness must be distinguished from clemency, which we are not authorized to grant. United States v. Nerad , 69 M.J. 138, 146 (C.A.A.F. 2010); United States v. Healy , 26 M.J. 394, 395–96 (C.M .A. 1988). The power to review a case for sentence appropriateness is “highly discretionary” and intended to assure “that justice is done and that the a ccused gets the punishm ent he deserves.” United States v. Lacy , 50 M.J. 286, 288 (C.M.A. 1999); Healy

, 26 M.J. at 395. Clemency, on the other hand, is a function of “b estowing mercy” and “treating the accused with less rigor than he deserves.” Healy , 26 M.J. at 395.

When an accused is retirement eligible and faces a puniti ve discharge, the sentencing authority may consider evidence of estimated lost re tirement pay, as a matter in mitigation to lessen the punishment. United States v. Luster , 55 M.J. 67, 70–71 (C.A.A.F. 2001). See also United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). Matters in mitigation are introduced to lessen th e punishment to be adjudged

1 Appellant introduced evidence that nominal value of his future retir ement benefits

amounted to $1,198,632.00.PEMBERTON — ARMY 20110127

4 by the court-martial, or to furnish grounds for a recommendation of clemency. Rule for Courts-Martial [hereinaft er R.C.M.] 1001(c)(1)(B). An accused has a broad right to present mitigation evidence to a court-martial on sentencing. United States v.

Becker , 46 M.J. 141 (C.A.A.F. 1 997). So long as the ev idence in mitigation is relevant to lessening a pending punishment or to furnish gr ounds for a recommendation of clemency, that evidence may be introduced by the accused and weighed by the senten cing authority.

Our superior court has reco gnized that the repercussions from a sentence that affects retirement eligibilit y are valid consideratio ns during sentencing. Boyd , 55 M.J. at 221; United States v. Sumrall , 45 M.J. 207, 208 (C.A.A.F. 1996); United States v. Griffin , 25 M.J. 423, 424– 25 (C.M.A. 1988). Cf. United States v. Jeffrey

, 48 M.J. 229, 231 (C.A.A.F. 2001). “[I]n reality, the impact of an adjudged punishment on the benefits due an accused who is eligible to retire is often the single most important sentencing matter to that accused and the sentencing authority.” Griffin , 25 M.J. at 424. Sim ilarly, in the co ntext of forfeitu res, military judges have long instructed panel members to specifically “consider the implications to the accused (and (his) (her ) family) of such a loss of income.” Dep’t of Army, Pam. 27-9, Legal Services: Military Judg e’s Benchbook, pp. 65–67 (30 Ja n. 1998).

Given the broad latit ude that an accused has to present matters in extenuation and mitigation, we conclude that the effect a sentence has on an accused’s retirement benefits, and the impact of the loss of those benefits on innocent family members,

constitutes a relevant factor in our determ ination of sentence appropriateness under Article 66, UCMJ. 2 Cf. United States v. Davis , 60 M.J. 469, 475 (C.A.A.F. 2005).

There is no doubt that mi litary dependents make grea t sacrifices on behalf of soldiers. These depend ents are recognized as a critical source of suppo rt to service members and the military, im pacting both retention and re adiness. So ndra Albano, Military Recognition of Family Concerns: Revo lutionary War to 1993 , Armed Forces & Soc’y, Winter 1994, at 28 3. By regulation, the U.S. Army imposes an official obligation on service members to financ ially support their dependent family members. Army Reg. 608-99, Family Support, Child Cust ody, and Paternity, para. 2-1 (29 Oct. 2003). At times, federal law authorizes direct payments of retirement benefits to certain dependents. Uniformed Services Former Spouse s’ Protection Act, 10 U.S.C. § 1408 (2006).

2 These matters may be consid ered in another co ntext as well, as our superior court has held that the “personal financial burd ens confronting the accused or his family”

is a matter relevant to clemency for the convening authority to decide. Healy , 26

M.J. at 396. The fact that they may be considered in the context of clemency does not preclude their consideration by the sent encing authority or this court in a

determination of senten ce appropriateness.PEMBERTON — ARMY 20110127

5 We are mindful of the financial impact court-martial sent ences may have on innocent family members. Currently, Cong ress has authorized the Secretary of Defense to establish a program to pay monthly transitional compensation to dependents or former depend ents of servicemembers who have been convicted of a dependent-abuse offense, such as sexual assault, batte ry, murder, and manslaughter. 10 U.S.C. § 1059 (2006). See generally Unit ed States v. Lundy , 60 M.J. 52, 55 (C.A.A.F. 2004). Family memb er victims of dependent-abu se offenses are eligible for transitional compensation when the servicemember’s court-martial sentence includes a punitive discharge or total fo rfeitures, or the service member is administratively separated. 10 U.S.C. § 1059(b). However, Congress has not enacted similar legislation to address the situation where the innocent family

members who are not themselves the vic tim of the crime suffer the collateral consequences of a sentence imposed as punishment. Contra ry to appellant’s argument, it is not incumb ent on this court to substitute judi cial action for legislative action where Cong ress has remained silent. Our role is to weigh the impact on family members al ong with all other matters within the entire record relevant to an appropriate sentence, and c onclude whether the se ntence, or a portion of the sentence, is appropri ate in law and fact and shoul d be affirmed. UCMJ art.

66.

We have given individua lized consideration to the appropriateness of appellant’s sentence in light of the nature of the offenses, appellant’s service record, his evidence in extenuation and mitigation, including the impact on appellant and his family members from the loss of his retir ement income, and the entire record of trial. Notwithstanding appe llant’s significant mitigation evidence, this must be considered in conjunction with the offenses that reflect appella nt’s gross abuse of authority and victimization of his fellow soldiers in a combat environment. Appellant used his leadersh ip position as a senior non-commissioned officer and first sergeant of his unit, un der the guise of pr oviding counseling, to sexually harass two female privates inside the closed confines of his office. As first sergeant, appellant was also entrusted to help de velop and mentor the two junior female lieutenants in his unit, who had much less military experience than he. Instead, appellant victimized the first lieutenant by repeatedly groping and kissing her, and forcing her to touch his pe nis through his clothing on one occasion and forcing her to touch his exposed erect penis on another. Appellant used th e false pretext of discussing official busi ness to lure a second lieutenant into his office only to expose his penis to her as well. Significantly, appellant committed these offenses while deployed to a combat enviro nment, a place where the requirement for unit cohesion and readiness is at its grea test importance. Thus, in considerat ion of all of the aforementioned factors, we find appellant’s sentence as adjudged a nd approved by the convening authority to be appropriate.PEMBERTON — ARMY 20110127

6 Although not raised by appellant, we also note that certain aspects of trial counsel’s argument were improper. Du ring the sentencing argument, the trial

counsel commented:

The military is gr asping at straws at ways to prevent
sexual assaults on Soldiers, especially Soldier-on-Soldier sexual assault. Society itself is engulfed in the question

of whether the United Stat es military takes this misconduct seriously . . . .

. . . .

The military can speak that it takes sexual assault seriously; but, unless we act with judicial action commensurately to the crime that’s been committed, it is only empty rhetoric , Your Honor.

Since defense counsel did not object to trial counsel’s ar gument, we review the statements for plain error. United States v. Erickson , 65 M.J. 221, 223 (C.A.A.F. 2007); R.C.M. 1001(g). A trial counsel ma y not purport to speak for the convening authority or any higher authority, refer to th e views of such author ities or any policy directive relative to punishm ent during sentencing argument. R.C.M. 1001(g). It is

error for trial counsel to ma ke arguments that inflame th e passions, prejudices, or fears of the sentencing authority. See United States v. Marsh , 70 M.J. 101, 106 (C.A.A.F. 2011) (citations omit ted). By the same token, trial counsel ma y not inject irrelevant matters into argument. Id.

We find that trial counsel’ s argument to be plain and obvious error. Military law recognizes five principl es for court-martial sentences: (1) rehabilitation; (2) punishment; (3) protection of society; (4) preservation of good order and discipline; and (5) deterrence. Dep’t of the Army Pamphlet 27–9, Lega l Services: Military Judge’s Benchbook, para. 2-5-21 (1 Jan. 2010); R.C.M. 100 1(g). Here, trial counsel argued facts not in evidence th at were ultimately irrelevant to the five principles of sentencing. Trial counsel impermissibly argued for a higher sentence to exhibit resolve to outside critics of the military by punishing appellant severely. Trial counsel also inappropriately invoked the need to support the “rheto ric” of military

officials so as not to rend er their pronounceme nts against sexual assault in the military empty. However, despite this impermissible argument, nothing in the

record rises to the level of clear evidence necessary to overcome the presumption the the judge correctly applied the law concerni ng permissible argument and followed it.

Erickson , 65 M.J. at 225; United States v. Raya , 45 M.J. 251, 253 (C.A.A.F. 1996). We therefore find no prejud ice to appellant as we pres ume the milita ry judge was able to distinguish between proper and improp er argument and to disregard the improper comments.PEMBERTON — ARMY 20110127

7 CONCLUSION

On consideration of the entire record, including th e matters personally raised by appellant under United States v. Grostefon , 12 M.J. 431 (C.M .A. 1982), we find appellant’s arguments to be without merit. We hold the findings of gu ilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.

Judge KRAUSS and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: