UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS

Appellate Military Judges

UNITED STATES OF AMERICA

v.

THOMAS J. HARRIS

LIEUTENANT JUNIOR GRADE (O-2), U.S. NAVY

NMCCA 201400382

GENERAL COURT-MARTIAL

Sentence Adjudged: 29 July 2014.

Military Judge: LtCol C.J. Thielemann, USMC.

Convening Authority: Commander, Navy Region Northwest, 

Silverdale, WA.

Staff Judge Advocate's Recommendation: LCDR E.K. Westbrook

II, JAGC, USN.

For Appellant: LT Jacqueline Leonard, JAGC, USN; LT Jessica 

L. Ford, JAGC, USN.

For Appellee: LCDR Keith B. Lofland, JAGC, USN.

18 August 2015

---------------------------------------------------

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 general court martial 

convicted the appellant, pursuant to his pleas, of one 

specification of receiving child pornography and one 

specification of possessing child pornography in violation of 

Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. 

Members sentenced the appellant to 18 months’ confinement and a 

dismissal. Pursuant to a pretrial agreement, the convening 
2

authority (CA) waived all automatic forfeitures for six months

but otherwise approved the sentence as adjudged. 

The appellant raises two assignments of error: that his 

sentence was inappropriately severe and that the CA’s action 

incorrectly omitted mention of pretrial confinement credit. We 

find no prejudicial error but order corrective action regarding 

the CA’s action in our decretal paragraph. Arts. 59(a) and 

66(c), UCMJ. 

Sentence Appropriateness

We review the appropriateness of a sentence de novo, United 

States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990), giving 

"'individualized consideration' of the particular accused 'on 

the basis of the nature and seriousness of the offense and the 

character of the offender.'" United States v. Snelling, 14 M.J. 

267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 10 

C.M.A. 102, 27 C.M.R. 176, 180-81 (C.M.A. 1959)). Sentence 

appropriateness “involves the judicial function of assuring that 

justice is done and that the accused gets the punishment he 

deserves” while clemency “involves bestowing mercy” and is a 

power reserved for other authorities. United States v. Healy, 

26 M.J. 394, 395 (C.M.A. 1988). 

We are mindful of the matters presented in extenuation and 

mitigation as well as the sentencing authority’s recommendation 

of “clemency of 6 months upon demonstrated rehabilitation 

counseling based on the counselor’s recommendation.”1

 

Nonetheless, the nature and seriousness of the offense are 

significant: the appellant searched for and downloaded over 

3,000 pictures and 24 videos of graphic child pornography. He 

then transferred those images to his cloud storage account. 

Weighing these offenses with an individualized consideration of 

the appellant, we conclude that the sentence is appropriate. 

Further relief would be a matter of clemency, reserved for other 

authorities. Healy, 26 M.J. at 395–96. 

Convening Authority’s Action

The military judge ordered that the appellant be credited 

with six days spent in pretrial confinement; there is no dispute 

the appellant is entitled to this credit. While the credit is 

accurately reflected in the results of trial, the CA’s action

omits any mention of it. 

 

1 Record at 461.
3

While the appellant asserts this is error, he cites no 

authority for the proposition that credit for lawful pretrial 

confinement is required to be noted in the CA’s action. RULE FOR 

COURTS-MARTIAL 1107(f)(4)(F), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.) requires that when a military judge awards 

administrative credit for illegal pretrial confinement, the CA 

“shall so direct in the action.” There is no similar 

requirement for legal pretrial confinement. Noting this, our 

Army brethren have held “there is no requirement that the

convening authority order sentence credit for legal pretrial 

confinement in his action.” United States v. Bales, 34 M.J. 

1217, 1218 (A.C.M.R. 1992). We agree. Further, there is no

indication that confinement facility authorities, relying on the 

results of trial, did not properly account for pretrial 

confinement credit. While mention of all credit for pretrial 

confinement, illegal or not, certainly is more prudent to ensure 

clarity in CA’s actions, it is not required, so no corrective

action on this point is necessary.

 

Another matter, however, does require corrective action. 

Although not raised by the parties, we note an error in the 

staff judge advocate’s recommendation (SJAR) and the CA’s 

action. Prior to entering pleas, the Government withdrew and 

dismissed the language “on divers occasions from between” and 

“to on or about 9 January 2014” in Specifications 1 and 2 of 

Charge II. The results of trial, incorporated into the SJAR by 

reference, and the CA’s action, nonetheless, incorrectly 

indicate this language remained. The appellant did not object 

to this error in the SJAR and has not asserted any error or 

prejudice here. 

We find no prejudice resulting from this error but, to 

ensure accuracy of records, we will direct corrective action in 

our decretal paragraph. United States v. Crumpley, 49 M.J. 538, 

539 (N.M.Ct.Crim.App. 1998). 

Conclusion

The findings and the sentence are affirmed. The 

supplemental CMO will reflect that Specifications 1 and 2 of 

Charge II did not include the language “on divers occasions from 
4

between” and “to on or about 9 January 2014” at the time of the 

pleas and the findings. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court