### UNITED STATES NAVY

- MARINE CORPS

COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before B.T. PALMER, A.Y. MARKS, M.N. FULTON

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JOHN A. CARPENTER CORPORAL (E

- 4), U.S. MARINE CORPS

NMCCA 201600074

SPECIAL COURT

- MARTIAL

Sentence Adjudged: 23 November 2015

. Military Judge: Maj M.D. Sameit, USMC

. Convening Authority: Commanding Officer, Combat Logistics Regiment 15, 1st Marine Logistics Group, Camp Pendleton, CA

. Staff Judge Advocate's Recommendati on: LtCol T.B. Merri t t, Jr., USMC

. For Appellant: Maj Jason L. Morris, USMCR. For Appellee: CDR James E. Carsten , JAGC, USN ; Maj Tracey Holtshirley, USMC

.

21 June 2016

--------------------------------------------------- OPINION OF THE COURT

------- -------------------------------------------- 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 special court martial, convicted the appellant, pursuant to his plea, of one specification of assault consummated by a battery in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928. The convening authority (CA) approved the adjudged sentence of sixty da ys’ confinement, reduction to pay grade E

- 1, and a bad

- conduct discharge.

In his sole assignment of error, the appellant alleges the CA erred by failing to suspend

the appellant’s bad

- conduct discharge as required by the pretrial agreement. The G overnm ent concedes error, and asks us to affirm a sentence of 60 days’ confinement and reduction to pay2

grade E

- 1. We agree that the CA erred by failing to suspend or disapprov e the bad

- conduct discharge and grant relief.

B ACKGROUND

On 13 March 2015, the ap pellant was standing barracks duty with JDD, a subordinate female Marine. At approximately 0100, the appellant went into a room adjacent to the duty hut to sleep. About five minutes later, the appellant called JDD into the adjacent room, grabbed her

wris t, and pulled her hand toward his body. The appellant’s penis was exposed. JDD told the appellant “no” and broke free. JDD left the room. She reported the offense several hours later.

The appellant was initially charged with sexual assault. The app ellant entered into a pretrial agreement, in which he agreed to plead guilty to assault consummated by a battery and waive his right to an administrative discharge board. In return, the CA agreed to withdraw and dismiss the sexual assault charge, and to s uspend any adjudged bad

- conduct discharge until such

time as the appellant was administratively separated, at which time the discharge was to be

remitted.

The appellant successfully pleaded guilty to assault consummated by a battery and waived his right to an administrative discharge board. In his recommendation to the CA , the staff judge advocate reported that the appellant had been administratively separated from the Marine Corps and recommended that the CA remit the bad

- conduct discharge. In his acti on, however, the CA approved the bad

- conduct discharge as adjudged.

D ISCUSSION

The appellant alleges, and the G overnment concedes, that the CA erred by approving the appellant’s bad

- conduct discharge. The appellant is entitled to the benefit of his ba rgain, and

when a CA fails to take action required by a pretrial agreement, this c ourt has authority to enforce the agreement. United States v. Cox , 46 C.M.R. 69, 72 (C.M.A. 1972). We will take corrective action in our decretal paragraph to “eliminate an y risk of prejudice.” United States v.
Lamb, 22 M.J. 518, 519 (N.M.C.M.R 1986).

C ONCLUSION

T he findings and so much of the sentence as provides for 60 days’ confinement and reduction to pay grade E

- 1 are affirmed.

For the Court

R.H. TROIDL

Clerk of Court