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_______ _______ __________ No. ACM S32193 (rem)

_______ _______ __________ UNITED STATES Appellee

v. Alan J. KILLION, Jr. Airman First Class (E

- 3) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the Air Force Trial Judiciary On Remand from the United States Court of Ap peals for the Armed Forces

Decided 1 5 February 2017

_______ _______ __________ Military Judge: Matthew P. S toffel

. Approved sentence: Bad

- conduct discharge, confinement for 14 days , reduction to E

- 1, and a reprimand. Sentence adjudged 10 October 2013 by SpCM convened at Osan Air Base, Republic of Korea

. For Appellant: Major Jo h nathan D. Legg , USAF.

For Appellee: Major Meredith L. Steer , USAF; Gerald R. Bruce , Esquire

. Before DUBRISKE
, SANTORO , and C. BROWN
, Appellate Military Judges Judge SANTORO delivered the opinion of the Court, in which Senior Judge DUBRISKE and Judge C . BROWN joined.

_______ _______ _

_________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________ SANTORO, Judge : Appellant ple a d ed guilty to being drunk and disorderly and unlawfully entering the on

- base residence of another Airman in violation of Article 134,United States v. Killion , No. ACM S32193 (rem)

2 UCMJ, 10 U.S.C. § 934 . Appellant ple a d ed not guilty to using provoking speech in violation of Article 117, UCMJ, 10 U.S.C. § 917, but was convicted of that offense by officer and enlisted mem bers sitting as special court

- martial. The
court

- martial sentenced him to a bad

- conduct discharge, confinement for 14 days, reduction to E

- 1, and a reprimand. The convening authority approved the sentence as adjudged. We affirmed the findings and sentence on 28 January 2015. United States v. Killion
, No. ACM S32193 , 2015 CCA LEXIS 28 ( A.F. Ct. Crim. App. 28 Jan 2015 ) ( unpub. op. ) . Our superior court then set aside and dismissed the provoking speech charge and specification. United States v. Killion
, 75 M.J. 209 (C.A.A.F 2016). This case is now back before us to determine whether we can reassess Appellant ’ s sentence or must remand the case for a rehearing on sentence.

I. B ACKGROUND After a night of excessive drinking, Appellant became belli gerent and disorderly, accosted strangers with profane outbursts
, and resisted his friend ’ s efforts to convince him to return home. Instead, A ppellant jumped a fence and entered the apartment of a senior noncommissioned officer he did not know, frightening the residents and nei ghbors who called security forces. A ppellant was apprehended by police and evaluated by emergency medical technicians who decided to transport him to the base emergency room. Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, Appellant physically and verbally lashed out at medical providers. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “ c[**]t ” and medical technicians “ Asian douchebags ” and

“ ch[*]nk. ” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

II. D ISCUSSION

– S ENTENCE R EASSESSMENT The provoking speech charge h aving been set aside and dismissed, we must either reassess Appellant ’ s sentence or remand for a rehearing on sentence. Applying the analysis set forth in United States v. Winckelmann , 73 M.J. 11 (C.A.A.F. 2013); United States v. Buber , 62 M.J. 476 (C.A.A.F. 200 6); United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006); and United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and carefully considering the entire record and thetotality of the circumstances, we are confident that we can reassess the sentence. There ha s not been a change in the penalty landscape as the maximum punishment authorized remains the jurisdictional limit of this special court

-United States v. Killion , No. ACM S32193 (rem)

3 martial

. All the evidence initially admitted in sentencing remained relevant and admissible as res gestae of the affirmed charge and specification s

. When this case was initially before us, we summarized the evidence: The prosecution admitted substantial evidence of the disruption the appellant caused at the home of an innocent NCO and his family. He entered onto the ir patio while the NCO ’ s wife was in the shower. Frightened by his banging and yelling, the wife grabbed her daughter and escaped to a neighbor ’ s apartment.After gaining entry, the appellant overturned furniture and refused to leave. After receiving a pan icked, incoherent call from his wife, the NCO had to rush home from a unit event, terrifiedthat something awful had happened to his family. The occupant ’ s 8

- year

- old daughter could not sleep alone for several nights because of the fear and insecurity his misconduct caused. Even after apprehension by security forces, the appellant wasuncooperative and tried to kick a military working dog. He impeded the paramedics ’ efforts to administer treatment, swatting at their hands and removing their equipment.

The a ppellant ’ s disruptive conduct continued at the emergency room where it took six p eople approximately 40 minutes just to get the appellant into the bed. For approximately threehours, until the sedation set in, he continued to use foul and aggressive langua ge towards the staff. His behavior was completely inconsistent with the good order and discipline that forms the foundation of military service.

Killion
, 2015 CCA LEXIS 28
, at * 9

– 10. Although the medical providers who were the targets of the speech that
ga ve rise to the now

- dismissed charge testified, the weight of their testimony in aggravation paled in comparison to the testimony of the victims f rom the unlawful entry incident

. None of the providers was actually provoked by Appellant ’ s actions and all had received training on how to handle aggressive patients as part of their medical duties. We are confident that even in the absence of the provoking speech charge, the court

- martial would not have sentenced Appellant to any less than the sentence originally adjudged. We therefore reassess Appellant ’ s sentence to that which was adjudged and approved: a bad

conduct discharge, confinement for 14 days, reduction to E

- 1, and a reprimand. In reassessing Appellant ’ s sentence, we necessarily have also concluded that the reassessed sentence is appropriate. We assess sentence appropriateness by considering Appellant, the nature and seriousness of the offense, Appellant ’ s record of service, and all matters contained in the record of trial.United States v. Killion , No. ACM S32193 (rem)

4 United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982); United States v. Bare , 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff ’ d , 65 M.J. 35 (C.A.A.F. 2007). The sentence as reassessed is appropriate for this Airman who voluntarily became intoxicated, caused a disturbance in t wo different locations, and broke into the on

- base residence of a fellow Airman and his family

.

III. C ONCLUSION
T he sentence , as reassessed, is correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, as the findings for Charge I and its two specifications have previously been affirmed
, the sentence , as reassessed, is now AFFIRMED

.

FOR THE COURT

KURT J. BRUBAKER Clerk of the Court