United States v. Hernandez

U NITED S TATES N AVY –M ARINE C ORPS

C OURT OF C RIMINAL A PPEALS

_________________________ No. 201700366 _________________________

UNITED STATES OF AMERICA

Appellee v.

OSCAR HERNANDEZ

Aviation Boatswain’s Mate (Aircraft Handling) Third Class (E-4)

United States Navy Appellant _________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Commander Jonathan T. Stephens, JAGC, USN.

Convening Authority: Commander, Navy Region Southwest, San

Diego, CA.

Staff Judge Advocate’s Recommendation: Captain Donald C. King,

JAGC, USN.

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

USN.

For Appellee: Lieutenant Commander Ian MacLean, JAGC, USN;

Captain Sean M. Monks, USMC.

_________________________ Decided 5 June 2018 _________________________

Before H UTCHISON , F ULTON , and S AYEGH , 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:

Pursuant to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of one specification of attempted abusive sexual contact and four specifications of abusive sexual contact in violation of Articles 80 and 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880 and 920. The military judge sentenced the appellant to 14 months’

United States v. Hernandez, No. 201700366 confinement, reduction to pay grade E-1, total forfeitures, and a bad-conduct discharge. The convening authority (CA) approved the sentence as adjudged and, except for the bad-conduct discharge, ordered it executed.

In his sole assignment of error, the appellant asserts that the promulgating order does not accurately reflect the appellant’s plea of guilty to the sole specification of Charge I or his plea of guilty to Charge III. We agree. Although the appellant has not identified or asserted any prejudice, he is entitled to an accurate official record of his proceedings and we will order corrective action in our decretal paragraph. See United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). Following our corrective action, we conclude that the findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.

The findings and sentence are affirmed. The supplemental court-martial order shall reflect that the appellant pleaded guilty to the sole specification of Charge I and to Charge III.

For the Court R.H. TROIDL Clerk of Court