UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600118

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JEREMY E. HASSETT

Chief Petty Officer (E-7), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Charles N. Purnell, JAGC, USN.

For Appellant: Commander R.D Evans, JR., JAGC, USN.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant Jetti L. Gibson, JAGC, USN.

_________________________

Decided 6 December 2016

_________________________

Before CAMPBELL, RUGH, 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.

_________________________

RUGH, Judge:

A military judge sitting as a special court-martial convicted the 

appellant pursuant to his pleas of three specifications of failure to obey 

a lawful order in violation of Article 92, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 892; one specification of damaging nonmilitary property in violation of Article 109, UCMJ, 10 U.S.C. § 909; 

and two specifications of assault consummated by a battery in 

violation of Article 128, UCMJ, 10 U.S.C. § 928.1 The military judge 

 

1 The appellant was charged with, and pleaded guilty to, four specifications of 

assault consummated by battery. However, prior to the announcement of sentence, 
2

sentenced the appellant to 85 days’ confinement, reduction to pay 

grade E-5, and a bad-conduct discharge. 

The convening authority (CA) approved the sentence and, pursuant 

to a pretrial agreement (PTA), suspended the bad-conduct discharge 

until the end of the appellant’s obligated service at which time, unless 

sooner vacated, it was to be remitted without further action.2 

Subsequently, the cognizant special court-martial convening 

authority (SPCMCA) convened a vacation hearing pursuant to RULE 

FOR COURTS-MARTIAL (R.C.M.) 1109, MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.). On 11 May 2016, the general court-martial 

convening authority (GCMCA) vacated the suspended bad-conduct

discharge. 

The appellant now raises three assignments of error (AOE): (1) 

that the court-martial order (CMO) failed to correctly reflect the 

consolidation of three specifications of assault consummated by battery 

into one specification; (2) that the vacation hearing denied the 

appellant due process under the law; and (3) that the military judge 

committed plain error when he admitted prosecution exhibits 

containing uncharged misconduct during the presentencing phase of 

the court-martial. 

We agree with the appellant’s first and second AOE and will direct 

and take corrective action in our decretal paragraph. Otherwise, we 

conclude the findings and sentence are correct in law and fact, and we 

find no other error materially prejudicial to the appellant’s substantial 

rights. Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

The appellant, assigned to Navy Recruiting District Philadelphia, 

had a tumultuous and abusive relationship with his domestic partner, 

K.R. On 14 March 2015, while staying at a cabin with K.R. and her 

four children, the appellant assaulted K.R., grabbing her hair, 

dragging her across the ground, striking her with an empty softball 

bag, and slapping her with his open palm.

 

the military judge consolidated three of the specifications into one as an 

unreasonable multiplication of charges, finding that the three specifications 

unreasonably exaggerated the appellant’s criminality. Record at 142. 

2 Pursuant to the PTA, the CA also remitted any automatic reduction in grade 

below the pay grade of E-5. The appellant received 139 days pretrial confinement 

credit and was released from the confinement facility following his December 2015 

trial.
3

Two months later on 7 and 8 May 2015, the appellant violated a 

military protective order (MPO)—issued after the cabin altercation—

by meeting with K.R., first at a casino and then again outside her 

home near Bethlehem, Pennsylvania, resulting in the appellant 

angrily punching through a room window. 

Subsequently, on 17 July 2015, appellant again violated the MPO 

when he met up with K.R. at a casino, and then grabbed her by the 

back of the neck after becoming angry with her.

II. DISCUSSION

A. Incorrect CMO

At court-martial, the appellant pleaded guilty to four specifications 

of assault consummated by battery based upon the three incidents at 

the cabin on 14 March 2015 and the single incident at the casino on 17 

July 2015. After findings, but before the announcement of sentence, 

trial defense counsel moved for Specifications 1, 2, and 3 of Charge 

III—the cabin assaults—to be merged as an unreasonable 

multiplication of charges. 

The military judge agreed, finding that the three assaults at the 

cabin were a “continuing course of conduct that lasted over, a brief 

period of time of 10 minutes, and that charging each distinct act and 

what was a continuing, ongoing assault exaggerate[d] the [appellant’s] 

criminality in this matter.”3 The military judge then consolidated the 

specifications, reading a new specification into the record and ordering 

the Report of Results of Trial (RROT) to reflect the consolidated 

specification in lieu of the three original specifications.4

While the RROT, prepared immediately after trial, correctly 

identified that the appellant was found guilty of only two specifications 

of assault consummated by battery, the CMO of 28 March 2016 listed 

all three original specifications instead of the military judge’s 

consolidated specification and does not otherwise reflect the 

consolidation of the three specifications.

The appellant now asserts that this error demonstrated a 

misunderstanding by the CA as to the degree of the appellant’s 

criminality and thereby prejudiced the appellant’s clemency request. 

We agree there was error, but find that it did not materially prejudice 

the appellant.

 

3 Record at 142.

4 Id. at 143.
4

“What is substantially one transaction should not be made the basis 

for an unreasonable multiplication of charges against one person.” 

R.C.M. 307(c)(4). Unreasonable multiplication of charges is a concept 

distinct from mulitiplicity. United States v. Quiroz, 55 M.J. 334, 337 

(C.A.A.F. 2001). It “addresses those features of military law that 

increase the potential for overreaching in the exercise of prosecutorial 

discretion.” Id. The concept “may apply differently to findings than to 

sentencing.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

The appropriate remedy depends on the nature of the harm. Id. 

(citing Quiroz, 55 M.J. at 339). If the military judge finds unreasonable 

multiplication of charges as applied to the sentence, the military judge 

may merge offenses only for purposes of sentencing. United States v. 

Thomas, 74 M.J. 563, 568 (N-M. Ct. Crim. App. 2014) (citing Campbell, 

71 M.J. at 25).

However, “[w]hen a military judge is presented with findings that 

reflect an unreasonable multiplication of charges that cannot be 

adequately addressed by merging the charges for sentencing purposes, 

the military judge must then decide whether to consolidate or dismiss 

the affected specifications.” Id.

Consolidation is accomplished by simply combining the 

operative language from each specification into a single 

specification that adequately reflects each conviction. 

When consolidation is impracticable, such as when 

the guilty findings involve violations of different UCMJ 

articles, military judges should consider a conditional 

dismissal of one or more findings. Conditional dismissals 

“become effective when direct review becomes final in the 

manner described in Article 71(c), UCMJ” and therefore 

“protect the interests of the Government in the event that 

the remaining charge is dismissed during [appellate] 

review.” 

Id. at 569 (quoting United States v. Britton, 47 M.J. 195, 203-05 

(C.A.A.F. 1997) (Effron, J., concurring) (alteration in original).

5

While he initially considered merging Specifications 1, 2, and 3 of 

Charge III for sentencing only, the military judge eventually 

 

5 See, e.g. United States v. Parker, 75 M.J. 603 (N-M. Ct. Crim. App. 2016) 

(reviving the conditionally dismissed sexual assault conviction after finding the rape 

conviction factually and legally insufficient), rev. denied, 75 M.J. 342 (C.A.A.F. 2016).
5

consolidated the three specifications, combining the operative language 

from each specification into a single specification that adequately 

reflected each offense. The military judge read the consolidated 

specification into the record and ordered the consolidated specification 

be reflected in the RROT. As the chosen remedy, the consolidated 

specification should have been reflected in the CMO as well. R.C.M. 

1114(c)(1) (stating that the CMO must set forth “the charges and 

specifications, or a summary thereof, on which the accused was 

arraigned; the accused’s pleas; [and] the findings or other disposition of 

each charge and specification”).6

Having found error in the CMO, we next determine whether the 

error prejudiced the appellant. “When assessing prejudice for post-trial 

error in SJARs and CMOs, courts only require the appellant make 

‘some colorable showing of possible prejudice.’” United States v. 

Stevens, 75 M.J. 548, 552 (N-M. Ct. Crim. App. 2015) (quoting United 

States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). We find the

appellant has not met this low threshold. 

Just as in Stevens, the three specifications erroneously listed in the 

CMO here make clear the conduct alleged involved the same victim at 

the same location on the same date. 75 M.J. at 551-52. The CMO 

indicates the CA considered the record of trial and the RROT, which 

each reflect the consolidated specficiation in some manner. 

Additionally, similar to Stevens, who received “a highly favorable 

[PTA] that suspended all confinement and forfeitures” prior to the 

error in the CMO, the CA and the appellant here previously agreed 

upon a favorable PTA that suspended the bad-conduct discharge. Id. at 

552.7 Under these circumstances, we find no colorable showing of

possible prejudice merely because the CMO failed to correctly record 

the consolidated specification. 

Nevertheless, the appellant is entitled to have the CMO accurately 

reflect the results of the proceedings. Id. (citing United States v. 

Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order

corrective action in our decretal paragraph.

 

6 See e.g. United States v. Nelms, No. 201400369, 2016 CCA LEXIS 227, at *17, 

unpublished op. (N-M. Ct. Crim. App. 14 Apr 2016).

7 See also United States v. White, No. 9900662, 2002 CCA LEXIS 50, at *23, 

unpublished op. (N-M. Ct. Crim. App. 5 Mar 2002) (finding no prejudice in the face of 

erroneously reported CMO findings because the appellant was sentenced to 

confinement for 90 days when the maximimum sentence to confinement was over 16 

years).
6

B. The vacation hearing

The appellant’s PTA provided, in part, that any adjudged punitive 

discharge would be suspended until the appellant’s end of obligated 

service (EAOS), at which time, unless sooner vacated, the suspended 

discharge would be remitted without further action.8 The PTA also 

stated that should the appellant commit any misconduct after the date 

of the CA’s action, the CA could, after complying with the procedures 

set forth in R.C.M. 1109, vacate any periods of suspension agreed to in 

the PTA. 

On 17 April 2016, the appellant was arrested by civilian authorities 

for assaulting K.R. On 27 April 2016, the cognizant SPCMCA provided 

written notice to the appellant that a hearing would be conducted to 

determine whether the 17 April incident warranted vacating the 

suspension of his bad-conduct discharge. The hearing was scheduled 

for two days later. 

In addition to informing the appellant of his rights at the hearing, 

the notification provided this background on the underlying 

misconduct triggering review: 

On 17 April 2016, you were arrested by the Lower Saucon 

Township Police Department and charged with 

aggravated assault, unlawful restraint, attempted simple 

assault, reckless endangerment, and harassment of 

[K.R.].9

The SPCMCA, serving as hearing officer, convened the vacation 

hearing on 29 April 2016. The appellant was represented by his trial 

defense counsel, and the entire hearing lasted 65 minutes. 

At the opening, the hearing officer advised the appellant that he 

was accused of aggravated assault, unlawful restraint, attempted 

simple assault, reckless endangerment, and harassment, which, if 

true, would violate his pretrial agreement. As proof, counsel 

representing the government presented the telephonic testimony of the 

civilian police officer who responded to the scene and four exhibits: the 

notification of vacation hearing; the PTA; the RROT and CMO from 

 

8 Without accounting for potential periods of tolling that may have occurred after 

the CA’s action, the appellant’s original EAOS was 23 September 2016. Appellate 

Exhibit V.

9 Appellee’s Motion to Attach Vacation Hearing Documents of 19 May 2016, 

Appendix 1 [herineafter Motion to Attach] at 10.
7

the appellant’s court-martial; and a Lower Saucon Police Department 

criminal complaint.10

Following the hearing, the hearing officer completed DD Form 455, 

“Report of Proceedings to Vacate Suspension of a Special Court-Martial 

Sentence including a Bad-Conduct Discharge.” Although not submitted 

as an exhibit during the hearing, in Block 4 of this form, the hearing 

officer listed “MPO of 17 Dec 15” as a supporting document.11

Similarly, while not raised in the hearing notice or in the hearing 

officer’s opening advisement, in Block 5, “alleged violation(s) of 

conditions of suspension,” the hearing officer wrote that the appellant 

“violated the terms of his pre-trial agreement (PTA) by his misconduct 

of being arrested and charged with aggravated assault, unlawful 

restraint, simple assault, reckless endangerment, and harassment. He 

also violated a military protective order.”12

The hearing officer further remarked: 

The evidence clearly demonstrated that [the appellant] 

violated the terms of his PTA. After reviewing the police 

report, the MPO issued after his court-martial, and taking 

the testimony of the arresting police officer, I determined 

that [the appellant] committed misconduct. He assaulted 

the same person he victimized before his court-martial 

and violated a MPO. There simply is no excuse for his 

conduct. I strongly recommend that the suspended portion 

of [the appellant’s] punishment be vacated.13

The report was forwarded to the GCMCA, who concurred with the 

hearing officer’s recommendation and vacated the appellant’s 

suspended discharge on 11 May 2016. In doing so, the GCMCA stated 

that he relied on the record of the vacation hearing proceedings with 

all exhibits and the recommendation of the hearing officer. He further 

explained: 

 

10 Defense counsel objected to the criminal complaint on the basis it was 

cumulative to the police officer’s testimony. The hearing officer accepted the report 

over this objection. Likewise, K.R. did not testify at the hearing but was instead 

declared unavailable for the hearing over defense counsel’s objection. 

11 Motion to Attach at 43.

12 Id. (emphasis added).

13 Motion to Attach at 45.
8

“After reviewing the Record of Proceedings, all exhibits 

submitted by the government representative and 

probationer’s counsel, and the recommendation of [the 

hearing officer], I find that [the appellant] committed 

misconduct. [The appellant] was arrested, and is 

currently incarcerated, for assaulting the same victim of 

his special court-martial. This misconduct is in clear 

violation of his pretrial agreement. The bad conduct 

discharge is appropriate.”14

The appellant now contends the vacation hearing failed to provide 

him with due process. We agree and set aside the vacation of the 

appellant’s suspended discharge.

Article 72, UCMJ, requires a hearing before the vacation of the 

suspension of any special court-martial sentence that includes a badconduct discharge. Such hearings, referred to as vacation hearings, are 

conducted in accordance with R.C.M. 1109.15 

Article 72, UCMJ, and R.C.M. 1109 are designed to “provide[] the 

accused the fundamental due process protections required in probation 

revocation hearings, as set forth by the Supreme Court in Gagnon v. 

Scarpelli, 411 U.S. 778 . . . (1973) and Morrissey v. Brewer, 408 U.S. 

471 . . . (1972).” United States v. Englert, 42 M.J. 827, 830 (N-M. Ct. 

Crim. App. 1995) (citing United States v. Bingham, 3 M.J. 119, 121

(C.M.A. 1977)).16

 

14 Motion to Attach at 46.

15 Vacation hearings held pursuant to R.C.M. 1109 incorporate notice, witness 

and evidence procedures provided by R.C.M. 405, a rule otherwise applicable to 

Article 32, UCMJ, preliminary hearings. The appellant’s vacation hearing was held 

on 29 April 2016. Thus, the hearing was conducted in accordance with R.C.M. 1109 

as modified on 17 June 2015 by Executive Order (EO) 13696. 80 Fed. Reg. 35,787 ( 

June 22, 2015). EO 13696 substantially overhauled R.C.M. 405, thereby changing 

vacation hearing procedures. Subsequent to the appellant’s vacation hearing, and 

therefore not applicable here, vacation hearing procedures were again modified on 20 

May 2016 by EO 13730. 81 Fed. Reg. 33,334 (May 26, 2016). The appellant’s brief 

bases its due process arguments on the original version of R.C.M. 405—no longer in 

effect at the time of appellant’s vacation hearing. Regardless, R.C.M. 405(d) as 

incorporated by R.C.M. 1109, on which we base our analysis, remained largely the 

same through all iterations of the rule.

16 See also United States v. Suttle, No. NMCCA 201100030, 2011 CCA LEXIS 

178, unpublished op. (N-M Ct. Crim. App. 31 Oct. 2011).
9

The Supreme Court has held that due process requires, in part, 

“written notice of the claimed violations of parole” and “disclosure to

the parolee of evidence against him[.]” Morrissey, 408 U.S. at 489.17

This is reflected in R.C.M. 1109(d)(1)(B)(iii), which requires that before 

a vacation hearing, “the officer conducting the hearing shall cause the 

probationer to be notified in writing of . . . alleged violation(s) of the 

conditions of suspension and the evidence expected to be relied on[.]” 

The notice requirement is based in the notion that “the liberty of a 

parolee, although indeterminate, includes many of the core values of 

unqualified liberty and its termination inflicts a ‘grievous loss’ on the 

parolee and often on others.” Id. at 482.

We review vacation proceedings to ensure compliance with 

fundamental due process protections.18

Here, the hearing officer considered an MPO issued to the appellant 

on 17 December 2015 as evidence of the appellant’s violation of the 

conditions of his suspension.19 However, the alleged MPO violation was 

not included in the notice of the hearing, in the hearing officer’s verbal 

advisement at the hearing, or as an exhibit presented by Government 

counsel during the hearing. Only passing reference was made to the 

MPO in the summarized record of the hearing, and the MPO was not 

included in the exhibits attached to the DD Form 455. It remains 

unclear from the record whether the MPO was even applicable on 17 

April 2016, the date of the alleged violation.

The hearing officer prominently listed the MPO violation as one of 

the breaches of the appellant’s conditions of suspension, and he made 

clear that he gave weight to the MPO violation when recommending 

the appellant’s sentence be vacated. This matter was then considered 

by the GCMCA in arriving at a final adverse determination.

 

17 See Bingham, 3 M.J. at 120-21 (applying this requirement to military vacation 

hearings).

18 See United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004) (setting aside the 

determination of a vacation hearing based on a failure to comply with R.C.M. 1109 

procedures).

19 The date of the MPO is mere conjecture based solely on its mention in Block 4 

of the hearing officer’s report. This reference implies the hearing officer had some 

knowledge of the MPO, but where that knowledge came from remains inscrutable 

from the record. 
10

While the facts necessary to prove the assault allegations and MPO 

allegation overlap, the two offenses are sufficiently distinct such that 

being notified of the assault allegations did not provide the appellant

constructive notice of the MPO allegation. Without proper notice, the 

appellant was not given the opportunity to prepare for or present a 

defense to the MPO violation. The omission of notice regarding the 

alleged MPO violation was in clear contravention of R.C.M. 

1109(d)(1)(B)(iii), and the minimum requirements of due process as set 

out by the Supreme Court in Morrissey and C.A.A.F. in Bingham. 

Under these circumstances, we find that the vacation of the 

appellant’s bad-conduct discharge suspension was substantively 

invalid because it was premised on an improperly conducted hearing. 

As this was a structural error, further analysis for prejudice would be 

inappropriate.

20 Therefore, the vacation will be set aside. 

C. Evidence of prior misconduct at presentencing

During the presentencing phase of trial, the military judge 

admitted Prosecution Exhibits 2 and 8 without defense objection. 

Prosecution Exhibit 2 included a statement by K.R. that “there have 

been assaults in the past that have not been reported,” and that when 

she and the appellant “were in Indiana [the appellant] beat the f[***] 

out of me.”21 Prosecution Exhibit 8 included information regarding a 

prior, civilian domestic violence charge that was dismissed over a year 

before trial.

The appellant now asserts it was plain error for the military judge 

to admit Prosecution Exhibits 2 and 8 under R.C.M. 1001(b) because 

the exhibits contained evidence of uncharged misconduct and criminal 

charges dismissed prior to conviction. 

As indentified by the appellant in his brief, we review the military 

judge’s decision to admit evidence when the appellant does not object 

at trial for plain error. United States v. Ramirez, No. 200800055, 2009 

CCA LEXIS 453, at *7 unpublished op., (N-M. Ct. Crim. App. 17 Dec.

2009) (citing United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 

1998)). In order to prevail on a claim of plain error, an appellant must 

 

20 See Miley, 59 M.J. at 304-05 (declining to test for prejudice before setting aside 

the vacation of a suspended sentence because “we will not speculate as to what 

decision the GCMCA may have made if the SPCMCA had properly” followed the 

procedures in R.C.M. 1109).

21 Prosecution Exhibit 2 at 7.
11

persuade the court that: (1) an error was committed; (2) the error was 

clear or obvious; and (3) the error resulted in material prejudice to a 

substantial right of the appellant. Id. at *7-8 (citation omitted).

Because the appellant’s court-martial was by military judge alone, 

he faces “a particularly high hurdle.” Id. at *8. Military judges are 

presumed capable of filtering inadmissible evidence, to know and apply 

the law correctly, and not to rely on inadmissible evidence. Id.

22

Here, the appellant is unable to leap that particularly high hurdle. 

Assuming without deciding that the exhibits contained improper 

aggravation evidence, we are confident the admission of this evidence 

did not alter the appellant’s sentence or result in any other material 

prejudice to the appellant’s substantial rights. It thus did not amount 

to plain error.

III. CONCLUSION

The findings and sentence, as approved by the CA, are affirmed. 

The supplemental court-martial promulgating order shall correctly 

reflect that Specifications 1-3 of Charge III were consolidated by the 

military judge and that the appellant was found guilty of the following 

consolidated Specification 1 of Charge III, as follows: 

In that Chief Air Controller Jeremy E. Hassett, U.S. 

Navy, Navy Recruiting District, Philadelphia, 

Pennsylvania, on active duty, did at or near 4200 South 

Lake Mary Road, Flagstaff, Arizona, on or about 14 

March 2015, unlawfully grab the hair of K.R. with whom 

he cohabitated as a person similarly situated to a spouse 

and drag her across the ground with his hand, unlawfully 

strike the body of K.R. with a softball bag multiple times 

and unlawfully strike K.R. in the face by slapping her 

with an open palm.23

We set aside the action of the GCMCA in vacating the suspension of 

the sentence to a bad-conduct discharge. The record of trial is returned 

 

22 In Ramirez, this court found that evidence of the appellant’s pre-service 

marijuana use was insufficiently “related in time, type, or outcome to the convicted 

crime to qualify as proper evidence in aggravation.” 2009 CCA LEXIS 453, at *8 

(citing United States v. Hardison, 64 M.J. 279, 281-82 (C.A.A.F. 2007)). Regardless, 

utilizing the standard applied to military judge-alone proceedings, we found that 

admission of pre-service drug use did not rise to the level of plain error. Id.

23 Record at 142-43.
12

to the Judge Advocate General for action consistent with this opinion.

Senior Judge CAMPBELL and Judge GROHARING concur.

 For the Court 

 R.H. TROIDL 

 Clerk of Court