UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

CHRISTOPHER M. BROWN 

CAPTAIN (O-3), U.S. MARINE CORPS

NMCCA 201300252

GENERAL COURT-MARTIAL

Sentence Adjudged: 14 December 2012.

Military Judge: Col G.W. Riggs, USMC.

Convening Authority: Commanding General, U.S. Marine Corps 

Forces Command, Norfolk, VA.

Staff Judge Advocate's Recommendation: LtCol D.J. Bligh, 

USMC.

For Appellant: CDR Christopher Geis, JAGC, USN.

For Appellee: Capt Matthew Harris, USMC.

30 June 2014

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

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 wrongfully selling military property, one 

specification of possessing a machine gun in violation of 18 

U.S.C. § 922(o)(1), one specification of obstructing justice, 

and one specification of receiving stolen property, in violation 

of Articles 108 and 134, Uniform Code of Military Justice, 10 

U.S.C. §§ 908 and 934. The military judge sentenced the 
2

appellant to confinement for 12 months, forfeiture of $1000.00

pay per month for 12 months, a $15,000.00 fine, and dismissal 

from the naval service. However, as a result of an error made 

while the military judge was advising the appellant of the 

effect that adjudged forfeitures would have on his sentence, the 

convening authority (CA) ordered a post-trial Article 39(a), 

UCMJ, session1 wherein the military judge reduced the sentence to 

confinement for 12 months, a $5,000.00 fine, and a dismissal. 

The CA approved the sentence as adjudged and ordered it 

executed.2

The appellant asserts three assignments of error: that the 

Government failed to comply with the pretrial agreement by not 

paying his spouse all of the deferred forfeitures she was 

entitled to under the pretrial agreement (PTA); that the 

appellant was improperly sentenced because the military judge 

knew the terms of the PTA when conducting the post-trial 

hearing; and that the military judge erred by not informing the 

appellant that he would forfeit his right to retirement if 

sentenced to a dismissal.3 

The appellant’s first assignment of error was rendered moot 

when the Government paid the appellant’s wife the additional 

monies owed under the PTA. Finding no merit in the appellant’s 

second and third assignments of error, we conclude that the 

findings and sentence are correct in law and fact and that no 

error materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ.

Background

The appellant is a former gunnery sergeant who had 14 years 

of active duty enlisted service before becoming a commissioned 

officer in 2006. In 2008 and again in 2009, the appellant 

 

1 Following trial, the CA ordered a proceeding in revision to clarify 

potential confusion caused by the military judge’s explanation at trial of 

the impact of the pretrial agreement’s sentence limitation on adjudged and 

automatic forfeitures. Record at 120; Appellate Exhibit VIII.

2 To the extent that the convening authority's action purported to execute the 

dismissal, it was a nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 

2009).

3 The third assignment of error was raised pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982).
3

deployed to Iraq, where he served as a battalion logistics 

officer. Upon returning from the deployments, the appellant 

started receiving various items of stolen military property from 

two gunnery sergeants in his unit. The total value of the 

stolen property exceeded $14,000.00, and the appellant made 

nearly $10,000.00 selling the military property on eBay. 

During 2009, one of the aforementioned gunnery sergeants 

gave the appellant a fully automatic AK-47 rifle that had been 

illegally brought back to the United States from Iraq. The 

appellant kept the rifle until he learned that the gunnery 

sergeant was being investigated by NCIS for possession of 

similar illegal weapons. Not wanting to be found with the 

weapon, the appellant cut the AK-47 into numerous pieces and 

disposed of the pieces in various area dumpsters.

Additional facts are developed below as needed. 

Military Judge's Knowledge 

of a Sentence Limitation in the PTA

The appellant asserts that the Government violated the 

terms of its PTA “because the military judge was aware of the 

sentence limitation portion, or Part II, of the PTA.” 

Appellant’s Brief of 5 Sep 2013 at 10. The appellant further 

argues that “the military judge’s perspective was tainted by his 

knowledge of the sentence limitation of the PTA” and that 

“[t]his [was] not what the accused bargained for . . . .” Id. 

Having reviewed the PTA in this case, and finding no provision 

that precludes the military judge from being aware of the 

sentence limitation provisions, we will treat this assignment of 

error as alleging that the military judge should have recused 

himself from further participation in the case, vice a failure 

by the Government to abide by the PTA. 

As stated in RULE FOR COURTS-MARTIAL 910(f)(3), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.), in a court-martial before a 

military judge alone, the military judge “ordinarily shall not 

examine any sentence limitation contained in the agreement until 

after the sentence of the court-martial has been announced.”

However, a military judge is not automatically disqualified 

based on knowledge of sentence limitations reached in a PTA, 

because a military judge (sitting alone) is entitled “to the 
4

presumption that they have performed their sworn duty properly, 

in the absence of a clear indication to the contrary." United 

States v. Phillipson, 30 M.J. 1019, 1021 (A.F.C.M.R. 1990)

(footnote and citation omitted). Military judges are only 

required to recuse themselves from a proceeding when their 

impartiality might reasonably be questioned. Id. at 1022. 

Nothing in the record here reasonably suggests that the military 

judge was not impartial. To the contrary, despite knowing that 

fines up to $10,000.00 could be approved and executed as 

adjudged, the military judge reduced the fine from $15,000.00 to 

$5,000.00; a clear sign that he was not influenced by the terms 

of the PTA.

Loss of Retirement

The appellant next argues that the military judge erred by 

not informing him that he would forfeit his right to retirement 

if sentenced to a dismissal. This argument is premised upon the 

appellant’s belief that, given his “more than 20 years of active 

military service at the time of his court-martial,” he “would 

have been eligible for retired pay and benefits” if he had not 

been “awarded a dismissal at court-martial . . . .” Appellant’s 

Brief at 11. 

Although the loss of retirement benefits is “often the 

single-most important sentencing matter to that accused and the 

sentencing authority,” it is a collateral consequence. United 

States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988). But see 

United States v. Riley, 72 M.J. 115, 121 (C.A.A.F. 2013)

(holding “that in the context of a guilty plea inquiry, sex 

offender registration consequences can no longer be deemed a 

collateral consequence of the plea”). 

In United States v. Miller, the Court of Appeals for the 

Armed Forces “explained the difficult task of challenging a 

guilty plea in light of unforeseen consequences of a courtmartial conviction: 

[W]hen collateral consequences of a court-martial 

conviction . . . are relied upon as the basis for 

contesting the providence of a guilty plea, the 

appellant is entitled to succeed only when the 

collateral consequences are major and the appellant's 
5

misunderstanding of the consequences (a) results 

foreseeably and almost inexorably from the language of 

a pretrial agreement; (b) is induced by the trial 

judge's comments during the providence inquiry; or (c) 

is made readily apparent to the judge, who nonetheless 

fails to correct that misunderstanding. 

63 M.J. 452, 457 (C.A.A.F. 2006) (quoting United States v. 

Bedania, 12 M.J. 373, 376 (C.M.A. 1982)) (additional citation 

omitted). Turning to the facts of this case, we find that the 

appellant’s argument fails for two reasons. 

Even assuming that the appellant was retirement eligible,4

the record clearly shows that there was no misunderstanding. To 

the contrary, it indicates the appellant knew that he was likely 

to lose his retirement benefits, and what the impact of that 

would be. During his sentencing argument, the appellant’s 

civilian defense counsel said “he’s going to lose retirement 

that’s probably in excess of $1 million.” Record at 111. 

In light of these facts, we find no substantial basis in 

law or fact for questioning the appellant’s guilty plea. United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). 

Conclusion

The findings and the sentence as approved by the 

convening authority are affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

 

4 Under 10 U.S.C. § 6323 (a), officers in the Marine Corps cannot apply for 

retirement, despite having more than 20 years of active service, until they 

have completed 10 years of service as commissioned officers. The appellant 

only had six years for commissioned service at the time of his court-martial. 

The record is silent on whether he could have reverted back to enlisted 

status and requested retirement.