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 Recommendation: LtCol T.B. Merritt, Jr., USMC.

For Appellant: Maj Jason L. Morris, USMCR.

For Appellee: CDR James E. Carsten, JAGC, USN; Maj Tracey Holtshirley, USMC.

21 June 2016

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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 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 days’ 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 Government 

concedes error, and asks us to affirm a sentence of 60 days’ confinement and reduction to pay 
2

grade E-1. We agree that the CA erred by failing to suspend or disapprove the bad-conduct 

discharge and grant relief. 

BACKGROUND

On 13 March 2015, the appellant 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 

wrist, 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 appellant 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 suspend 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 action, 

however, the CA approved the bad-conduct discharge as adjudged. 

DISCUSSION

The appellant alleges, and the Government concedes, that the CA erred by approving the 

appellant’s bad-conduct discharge. The appellant is entitled to the benefit of his bargain, and 

when a CA fails to take action required by a pretrial agreement, this court 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 any risk of prejudice.” United States v. 

Lamb, 22 M.J. 518, 519 (N.M.C.M.R 1986). 

CONCLUSION

The 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