UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600063

_________________________

UNITED STATES OF AMERICA

Appellee

v.

ANDREW R. HARDEN

Sergeant (E-5), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel David M. Jones, USMC.

For Appellant: Lieutenant Commander Derek C. Hampton, JAGC, 

USN.

For Appellee: Major Corey A. Carver, USMC; 

Lieutenant James M. Belforti, JAGC, USN.

_________________________

Decided 6 December 2016

_________________________

Before MARKS, FULTON, and GROHARING, Appellate Military Judges

_________________________

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, 

in accordance with his pleas, of two specifications of failure to obey a lawful 

general order and three specifications of failure to obey another lawful order 

in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 

(2012). The military judge sentenced appellant to be reduced to paygrade E-1, 

34 days’ confinement, and a bad-conduct discharge.
United States v. Harden No. 201600063

2

The appellant raises three assignments of error: First, he alleges that the 

government violated the terms of the pretrial agreement (PTA) by objecting 

to evidence in extenuation and mitigation, and that his pleas were therefore 

improvident. Second, he contends that the lawful general order prohibiting 

Marine recruiters from having intimate relationships with high school 

students and recruits violates the Equal Protection Clause of the Fifth 

Amendment to the Constitution. Finally, he alleges that the convening 

authority (CA) erred in proceeding to court-martial, as both of the potential 

recruits named in the specifications requested he not be court-martialed. The 

second and third assignments of error are raised personally by the appellant.1

We find no error and affirm.

I. BACKGROUND

In October 2014, the appellant met two female high school students, MK 

and NS, while serving as a Marine Corps recruiter. The appellant initiated 

sexually explicit discussions with both students and solicited a sexually 

suggestive photograph from MK. Ultimately, the appellant had sexual 

intercourse with both NS and MK.

The appellant’s command learned of his misconduct and began an 

investigation. On 12 December 2014, the appellant’s commanding officer 

issued a military protective order (MPO) prohibiting the appellant from 

contacting any Marine “poolees” (recruited individuals not yet on active 

duty), applicants, high school students, and anyone related to recruiting or to 

the investigation into his misconduct. In spite of the order, the appellant 

continued to contact both MK and NS. The appellant sent Facebook messages 

and text messages to MK, and letters to NK, who by then was attending Air 

Force basic training in Lackland, Texas.

On 9 April 2015, the appellant’s commanding officer issued another MPO, 

specifically prohibiting the appellant from contacting NS and ordering him to 

stay at least 500 feet away from her home. The appellant violated this order 

by visiting NS in Lackland, Texas.

The appellant entered into a PTA with the CA in which he agree to plead 

guilty to two specifications alleging that he failed to obey a lawful general 

order prohibiting inappropriate social and sexual relationships between 

recruiters and potential recruits and three specifications alleging that he

violated military protective orders issued after the command began to 

investigate his misconduct. In one of the specially negotiated terms of the 

pretrial agreement, the government agreed not to object to “the admission 

 

1 See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
United States v. Harden No. 201600063

3

into evidence of written statements in extenuation and mitigation from 

witnesses.”2

At the presentencing proceeding, the appellant unsuccessfully sought to 

introduce two emails from his recruiting station’s commanding officer, Major 

H. In the first email, sent to the CA before the appellant’s case was referred 

to trial, Major H opined that “[a]n Other Than Honorable (OTH) Discharge, 

although still damaging, will facilitate employment more than a Bad Conduct 

Discharge (BCD). I would technically prefer a Separation in Lieu of Trial 

(SILT) in order to get [the appellant] out of the command as soon as possible . 

. . .”

3

In the second email,4 Major H seems to explain to two other officers that 

the appellant had been following the advice of counsel when he had 

demanded that his command return his cell phone to him, claiming that his 

constitutional rights had been violated. Major H’s email seems to suggest 

that the appellant had been poorly served by this legal advice, and that the 

appellant would not have made such a demand absent such legal advice.

The trial counsel objected to the admission of the both emails, arguing 

that they were not relevant and not proper extenuation or mitigation 

evidence. The military judge sustained the objections.

II. DISCUSSION

In his first assignment of error, the appellant alleges that the 

government’s objection to the two emails violated their agreement not to 

object to written statements from witnesses in extenuation and mitigation in 

the PTA. We disagree.

We review issues involving the interpretation of a PTA de novo. United 

States v. Smead, 68 M.J. 44, 59 (C.A.A.F 2009). We will not overturn a

military judge’s interpretation of a PTA unless the appellant shows (1) the 

term of the PTA in question was material to his decision to plead guilty, and 

(2) the circumstances in the case amount to government noncompliance. Id.

The government concedes their agreement not to object to written 

statements in extenuation and mitigation was material to the appellant’s 

decision to plead guilty. We must therefore decide whether the government’s 

objection to the two emails violated this term. We find that it does not.

Matters in extenuation serve “to explain the circumstances surrounding 

the commission of an offense, including those reasons for committing the 

 

2 Appellate Exhibit VIII at 3.

3 Defense Exhibit D (for identification) at 2. 

4 Id. at 1.
United States v. Harden No. 201600063

4

offense which do not constitute a legal justification or excuse.” RULE FOR 

COURTS-MARTIAL 1001(c)(1)(A), MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.). Matters in mitigation serve “to lessen the punishment to 

be adjudged by the court-martial, or to furnish grounds for a recommendation 

of clemency.” Id. at 1001(c)(1)(B.). Matters in mitigation may include 

“particular acts of good conduct or bravery and evidence of the reputation or 

record of the accused in the service for efficiency, fidelity, subordination,

temperance, courage, or any other trait that is desirable in a servicemember.” 

Id. Other typical examples of evidence in extenuation and mitigation include 

things such as an appellant’s mental health history, antisocial traits, work 

and school performance, history of physical or sexual abuse, diminished 

capacity, and socio-economic status. See e.g., United States v. Akbar, 74 M.J. 

364, 375-76 (C.A.A.F. 2015); United States v. Tangpuz, 5 M.J. 426, 427, 430

(C.M.A. 1978).

Neither email amounts to evidence in extenuation or mitigation. In 

United States v. Britt, 44 M.J. 731 (A.F. Ct. Crim. App. 1996), aff’d, 48 M.J. 

233 (C.A.A.F. 1998), that appellant argued that a military judge erred by 

preventing him from informing the court during his unsworn statement that 

if he did not receive a punitive discharge, he would be administratively 

separated. The Air Force Court of Criminal Appeals, however, found that 

such a statement qualified as neither extenuating nor mitigating evidence: 

“Nothing about the speculative possibility of an administrative discharge 

explains the circumstances of appellant’s crime (extenuation), nor is it a 

matter going to the peculiar fidelity, valor, or character of his service 

(mitigation).” Id. at 735.

The two emails in question here are, like the expectation of

administrative separation, not relevant to considerations of extenuation or 

mitigation. Neither email provides any information about the circumstances 

of the appellant’s offenses or the reasons he committed them. They do not 

provide any information about the appellant that might tend to reduce the 

adjudged sentence, such as particular acts of good conduct or bravery, or 

evidence his reputation or record of efficiency, fidelity, subordination, 

temperance, courage, or other desirable traits. We find that information 

about legal advice the appellant received and information about the internal 

deliberative process that resulted in the referral are not relevant to 

considerations of extenuation or mitigation. Therefore the trial counsel did 

not breach the pretrial agreement by objecting to the admission of the two 

emails.

We have considered the errors raised personally by the accused in the 

second and third assignments of error and find them to be without merit. See

United States v. Clifton, 35 M.J. 79 (C.A.A.F. 1992).
United States v. Harden No. 201600063

5

III. CONCLUSION

The findings and sentence are affirmed.

For the Court

R.H. TROIDL

Clerk of Court