Before
de GROOT, MOSLEY, and STAMPFLI
Appellate Military Judges
UNITED STATES
Appellee
v.
Cadin A. CALDWELL
Corporal (E-4), U.S. Marine Corps
Appellant
No. 202500155
Decided: 16 October 2026
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Matthew M. Harris (Trial)
Jennifer L. Luce (R.C.M. 810(f) Hearing)
Sentence adjudged 7 January 2025 by a general court-martial tried at
Marine Corps Air Station Miramar, San Diego, California, consisting of
a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for six months, forfeiture of all pay and allowances, and a dishonorable discharge.1
1 In accordance with the plea agreement and Rule for Courts-Martial 1109(e), the
convening authority reduced Appellant’s adjudged confinement from 72 months to 6 months, as Appellant provided substantial assistance to the government in a proceeding involving another Marine.
United States v. Caldwell, NMCCA No. 202500155
Opinion of the Court
For Appellant:
Captain Katharine K. McCormick, JAGC, USN
For Appellee:
Commander John T. Cole, JAGC, USN
Lieutenant K. Matthew Parker, JAGC, USN
Senior Judge de GROOT delivered the opinion of the Court, in which
Judge MOSLEY and Judge STAMPFLI joined.
This opinion does not serve as binding precedent but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
de GROOT, Senior Judge:
Appellant was an Expeditionary Firefighting and Rescue Specialist assigned to Marine Corps Air Station Yuma. In 2022, he served as a first responder when a Marine Corps MV-22B Osprey crashed during an exercise. As a result of what he witnessed, Appellant was diagnosed with Post-Traumatic Stress Disorder (PTSD).
In May 2023, Appellant began self-medicating with psilocin, otherwise known as magic mushrooms. Appellant, his wife, who was also a Marine, and another Marine began to buy mushrooms in bulk, drying and crushing them, and then putting the powder into capsules with the intent to distribute them. Marine Corps Criminal Investigation Division (CID) agents investigated Appellant for potential drug use and distribution. During the interview with CID personnel, Appellant admitted that he distributed drugs to fellow Marines. He agreed to assist with other investigations and to plead guilty to several charges and specifications. Appellant’s wife also pleaded guilty. She gave birth to a daughter while serving her confinement sentence a few days before Appellant’s preliminary hearing on 15 November 2024. When she returned to the brig, Appellant took leave to care for the baby until his trial on 7 January 2025.
The military judge convicted Appellant, in accordance with his pleas, of two specifications of wrongful use of a controlled substance, one specification of wrongful possession of a controlled substance, one specification of wrongful distribution of a controlled substance, and one specification of wrongful manufacture of a controlled substance in violation of Article 112a, Uniform Code of Mil2
United States v. Caldwell, NMCCA No. 202500155
Opinion of the Court
itary Justice (UCMJ); one specification of failure to obey a lawful general regulation in violation of Article 92, UCMJ; and one specification of conspiracy to wrongfully possess a controlled substance with the intent to distribute in violation of Article 81, UCMJ.2
At trial, the Government’s sentencing case consisted of documents from the CID investigation, including a summary of Appellant’s interrogation, and numerous text exchanges between Appellant and his wife, as well as between Appellant and various Marines to whom he was selling psilocyn. Trial defense counsel (TDC) entered into evidence the Wheeler3 factors and a letter from Appellant’s doctor stating that Appellant had received a PTSD diagnosis, though it did not link the onset to any event. Appellant also made an unsworn statement, which included assertions that he had: (1) been diagnosed with PTSD after struggling in the aftermath of the Osprey crash; and (2) assisted local civilian law enforcement by providing information about his civilian dealer and executing an “undercover deal” with the Yuma Narcotics Task Force. Nothing further was presented.
In accordance with the plea agreement, the military judge was required to adjudge, at minimum, a bad-conduct discharge and confinement between 12 months and 72 months, accounting for confinement for each specification to be served concurrently. The military judge sentenced Appellant at the top of the range for several specifications, resulting in 72 months of confinement, and a dishonorable discharge.
After announcing the sentence, the military judge stated that Appellant had claimed in his unsworn statement that he had provided assistance to local law enforcement and suffered from PTSD as a result of “disturbing servicerelated experiences. If substantiated, the convening authority should consider suspending confinement in excess of 15 months and . . . modify the punitive discharge to a bad-conduct discharge.”4
Appellant asserts the following assignments of error (AOEs): (1) whether TDC was ineffective for failing to investigate and present evidence in extenuation and mitigation; and (2) whether the TDC were ineffective for failing to
2 10 U.S.C. §§ 912a, 892, 881.
3 See United States v. Wheeler, 17 C.M.A. 274, 38 C.M.R. 72 (C.M.A. 1967). In this
case, TDC provided the military judge the following information as Wheeler factors: Appellant’s birth date, pay entry base date, military education and training, medals and awards received, that Appellant had not received any civilian criminal convictions, a request to consider Appellant’s assistance to local law enforcement, and that Appellant had two dependents. See Def. Ex. A.
4 R. at 150.
3
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corroborate Appellant’s unsworn statement in the clemency submission to the convening authority.5
We find merit in Appellant’s first AOE and therefore find Appellant’s second AOE to be moot. We grant relief as set forth below.
I. BACKGROUND
Appellant claims ineffective assistance of counsel based on his counsel’s failure to investigate and present evidence in extenuation and mitigation. Specifically, Appellant avers his TDC never asked him about his response to the Osprey crash or names of other personnel that were with Appellant that day.6 Trial defense counsel also never asked Appellant for his medical records documenting his PTSD.7 Appellant obtained a letter from his civilian therapist regarding his diagnosis to include in his official military medical record. He provided the letter to his counsel without being asked because he believed it might be helpful. His counsel did not ask him to complete a release to obtain further documentation.8 Finally, Appellant states that he provided TDC information regarding his assistance to the Yuma County Sheriff’s Office (YCSO) and recommended they reach out to CID for assistance in finding the point of contact, but TDC failed to obtain evidence showing that he had assisted local law enforcement.
We granted Appellant’s motion to attach documents, to include: Appellant’s declaration; several pages of certifications from Appellant’s Official Military Personnel File (OMPF); character affidavits from members of Appellant’s chain of command and members who were with Appellant during the recovery of personnel from the Osprey crash; documents from Appellant’s medical record regarding his PTSD diagnosis; pictures and family documents; as well as emails from agents belonging to CID and the Naval Criminal Investigative
5 Appellant did assert another AOE as to whether this Court could fulfill its Article
66, UCMJ, duty to assess sentence appropriateness given the incomplete record resulting from trial defense counsel’s omissions. We carefully considered this AOE raised by Appellant and find it does not require discussion or relief. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
6 Decl. of Appellant at 2 (Aug. 22, 2025), App’x A to Appellant’s Mot. to Attach. This
Court granted Appellant’s motion to attach on 7 October 2025.
7 Id. at 3.
8 Id. at 3.
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Service regarding Appellant’s agreement to assist the YCSO Narcotics Task Force.
On 25 March 2026, this Court ordered Appellant’s TDC, Captain (Capt) E.P. and Capt S.O., to provide affidavits in response to Appellant’s ineffective assistance claims. Captain E.P., the lead TDC, stated that he “served as the primary point of contact for obtaining and presenting any [evidence in extenuation and mitigation] on Appellant’s behalf.”9 He asked Appellant for names of family members, unit personnel, and any other persons who would testify on Appellant’s behalf, as well as any “commendatory material.”10 When asked if he obtained any evidence based on his own investigation or due diligence, Capt E.P. stated that he did not obtain any additional information beyond what Appellant provided. On 3 January 2025, less than two business days before the court-martial,11 Appellant told Capt E.P. that he did not want any witnesses called or any further evidence to be presented. Captain E.P. stated that his “investigative efforts were guided by the information Appellant furnished, and, given [Appellant’s] explicit statement that he did not wish to present any evidence beyond what had already been submitted to the Court, [Capt E.P.] did not pursue additional avenues of investigation.”12
On 6 April 2026, this Court remanded the case for a fact-finding hearing pursuant to Rule for Courts-Martial (R.C.M.) 810(f) for the military judge to address the facts surrounding Appellant’s claims of ineffective assistance of counsel.13 The R.C.M. 810(f) military judge’s findings of fact and other necessary facts are discussed below.
9 Aff. of Capt E.P. at 1 (Apr. 21, 2026), App’x B to Appellee’s Resp. to Ct Order to
Produce Def. Counsel Decls.
10 Id. at 1–2.
11 See R.C.M. 810(f) Hr’g Tr. at 241.
12 Aff. of Capt E.P. at 2 (Apr. 21, 2026), App’x B to Appellee’s Resp. to Ct Order to
Produce Def. Counsel Decls.
13 To avoid confusion, we will use “R.C.M. 810(f) military judge” when referring to
the military judge who presided over the R.C.M. 810(f) hearing.
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II. DISCUSSION
A. Trial Defense Counsel Rendered Ineffective Assistance of Counsel, and Appellant was Prejudiced by Their Actions.
1. Law
The Sixth Amendment to the United States Constitution guarantees all criminal defendants facing prosecution the right to effective legal counsel. The framework for a successful claim that this right has been violated has been black-letter law since the landmark decision of the Supreme Court in Strickland v. Washington.14 To establish that TDC were ineffective, Appellant must show: “(1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.”15 A claim of ineffective assistance of counsel is a legal issue, which we review de novo.16
When analyzing the first prong of the Strickland test, courts strongly presume that counsel’s challenged conduct falls within a wide range of reasonable professional assistance.17 “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”18 Our look back on actions taken (or not taken) by TDC must be highly deferential.19 We do so in an attempt to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”20
Ineffective assistance of counsel at the sentencing process
can occur in several different ways. Perhaps the most frequently
encountered situation is when counsel either fails to investigate
adequately the possibility of evidence that would be of value to
the accused in presenting a case in extenuation and mitigation
14 466 U.S. 668 (1984).
15 United States v. Green, 68 MJ 360, 361–62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687).
16 United States v. Scott, 81 M.J. 79, 84 (C.A.A.F. 2021) (citing United States v.
Captain, 75 M.J. 99, 102 (C.A.A.F. 2016)).
17 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Strickland, 466
at 689)).
18 Strickland, 466 U.S. at 691.
19 Id. at 689.
20 Id.
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or, having discovered such evidence, neglects to introduce that
evidence before the court-martial.21
To establish prejudice, an appellant must demonstrate “a reasonable probability that, but for counsel’s [deficient performance] the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”22
In United States v. Boone, the Court of Appeals for the Armed Forces (CAAF) remanded the case to the Army Court of Criminal Appeals (ACCA) because the CAAF could not determine a tactical reason or other explanation for why the TDC failed to present anything more than the appellant’s unsworn statement in sentencing.23 On remand, the ACCA ordered affidavits from both the civilian defense counsel (CDC) and military defense counsel (MDC).24 The CDC stated he requested names of potential sentencing witnesses from the appellant at least twice, but the appellant failed to provide any names.25 Civilian defense counsel admitted he did not independently seek out any sentencing witnesses.26 The MDC identified three potential good military character sentencing witnesses and stated he provided notes from those interviews to the CDC.27 However, the CDC could not recall those potential witnesses or any discussion with the MDC.28 The CDC stated that his sentencing strategy was to minimize the adjudged confinement.29 The ACCA went on to find both the CDC and MDC failed to provide effective assistance of counsel in the sentencing portion of the trial.30 In assessing prejudice, the ACCA found that the potential sentencing witnesses may have been helpful to the sentencing case.31 The ACCA concluded there was “a reasonable probability that the sentence would have been different but for counsel’s performance, and that probability
21 United States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998).
22 Strickland, 466 U.S. at 694.
23 42 M.J. 308, 313–14 (C.A.A.F. 1995).
24 United States v. Boone, 44 M.J. 742, 743 (Army Ct. Crim. App. 1996).
25 Id. at 744.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id. at 746.
31 Id.
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is sufficient for us to question the reliability of and to undermine our confidence in the sentencing proceeding.”32
In United States v. Scott, the CAAF reviewed an appellant’s claim that his counsel provided ineffective assistance for sentencing and found that the appellant’s defense counsel did not seek witnesses to discuss the appellant’s career and combat record, obtained documentation of the appellant’s PTSD, or prepared a “good soldier book.”33 Although the CAAF acknowledged that there may be tactical reasons not to present evidence in extenuation and mitigation, there were no identified tactical reasons for the defense counsel’s decision, and the CAAF could not perceive one.34 The court nevertheless found no prejudice, because it could “not see a reasonable probability that the military judge at sentencing would have adjudged a different sentence if the military judge had considered not only the evidence in extenuation and mitigation that trial defense counsel actually presented at trial, but also the additional evidence that they could have presented.”35
2. Analysis
a. Ineffective Assistance of Counsel
There may be several reasons why an investigation results in limited evidence or a sentencing case consists of very little evidence. In this case, TDC made minimal effort to investigate Appellant’s case or develop evidence for sentencing. Capt S.O., for the most part, deferred the sentencing preparations and discussions with the client to Capt E.P.36 As we afford deference to the actions taken by TDC at the time of trial, we requested TDC provide us with any tactical or strategic reason they may have had at the time for presenting, or not presenting, evidence in extenuation and mitigation.37 Capt E.P. stated that:
The sentencing strategy was developed around the evidence and
information that Appellant chose to provide, with the primary
objective of positioning him to receive the full benefit of the negotiated plea agreement. . . . The goal was to ensure that all mit32 Id.
33 81 M.J. 79, 86 (C.A.A.F. 2021).
34 Id.
35 Id. at 87.
36 App. Ex. XI.
37 Order to Produce Def. Counsel Decls. at 2.
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igating factors within our possession were effectively communicated to the military judge in support of the agreed-upon disposition and to maximize the likelihood that the Court would impose a sentence consistent with the terms of the plea agreement.38
Trial defense counsel failed to submit any discovery requests to trial counsel to obtain basic information about Appellant and his military career; failed to take minimal investigative steps to corroborate Appellant’s assistance to the YCSO; and failed to take initial steps to investigate potential evidence in extenuation and mitigation related to the Osprey crash, which led to Appellant’s PTSD diagnosis. When asked if they exercised due diligence in seeking out information in extenuation and mitigation, both TDC relied on the fact that Appellant did not provide names or contact information for any witnesses and did not provide any documents from his OMPF, as well as Appellant’s decision on 3 January not to call anyone to testify or provide information on his behalf. The TDC in this case did little investigation to obtain evidence in extenuation and mitigation that required minimal or no assistance from Appellant to obtain.
We considered TDC’s stated sentencing strategy, along with the duty to investigate potential evidence in extenuation and mitigation and find that TDC were deficient in their representation of Appellant during the presentencing phase of the trial.
(1) Failure to Conduct a Basic Inquiry
Trial defense counsel did not submit a discovery request in this case.39 A basic discovery request would have provided TDC with the names and contact information of investigators and Appellant’s chain of command and Appellant’s OMPF. Appellant did not have a long career in the Marine Corps, but his certificates, trainings, and proficiency and conduct marks would have provided names of personnel in Appellant’s chain of command at the time of the Osprey crash. Appellant may have made it easier for TDC by providing the names and
38 Aff. of Capt E.P. at 4 (Apr. 21, 2026), App’x B to Appellee’s Resp. to Ct Order to
Produce Def. Counsel Decls.
39 R.C.M. 810(f) Hr’g Tr. at 214–15; App. Ex. XI at 7. Capt S.O. initially stated,
during the R.C.M. 810(f) hearing, that TDC did request discovery in this case, but he did not have the documentation immediately available. R.C.M. 810(f) Hr’g Tr. At 175. However, pursuant to requests from both the R.C.M. 810(f) military judge and trial counsel to provide that documentation after the hearing, both TDC affirmatively responded that they could not find any discovery requests. App. Ex. IX at 2; App. Ex. X at 2.
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contact information for his chain of command, but a discovery request for information such as this is a common and basic tool used by a defense attorney when first assigned to a case.
(2) Failure to Independently Investigate Appellant’s Assistance to
Law Enforcement
Having the contact information for the main investigators in Appellant’s case would have allowed TDC to independently investigate Appellant’s assistance to the YCSO. Appellant did not provide Capt E.P. with a direct contact number or other information to reach out to his contact at the YCSO. However, Appellant did ask TDC to contact CID to obtain assistance in finding the point of contact.40 Trial defense counsel not only failed to contact anyone at CID, but Capt E.P. also asked trial counsel to contact CID on his behalf to find mitigating evidence. Despite Agent Sierra being named as the lead investigator in the CID Reports of Investigation involving Appellant’s case, neither Capt E.P. nor Capt S.O. contacted him. The R.C.M. 810(f) military judge found “neither TDC believed Agent [Sierra] possessed any relevant information prior to the sentencing hearing and therefore did not know to ask Agent [Sierra] for information regarding the Appellant’s cooperation with law enforcement.”41 Rather, TDC accepted trial counsel’s statement, in response to TDC’s request to contact CID on their behalf, that CID had no information on Appellant’s cooperation with YCSO. Based on Agent Sierra’s statement, had he been contacted, he would have directed TDC to the appropriate person with knowledge of Appellant’s assistance.42 Trial defense counsel failed to take basic, independent investigative steps, despite Appellant’s request to do so. This lack of investigation and overreliance on trial counsel by TDC was an abdication of the adversarial process.
(3) Failure to Investigate Potential Evidence in Extenuation and Mitigation
Trial defense counsel also failed to do an independent investigation into Appellant’s PTSD diagnosis and the causal relationship to the Osprey crash.43 Capt E.P. stated that he became aware of the Osprey incident “towards the end
40 App. Ex. VII at 7.
41 App. Ex. XI at 4. Even though Agent Sierra had no direct knowledge of the assistance Appellant provided, he could have directed TDC to those with knowledge of the assistance. Decl. of Agent Sierra (Aug. 21, 2025), App’x I to Appellant’s Mot. to Attach.
42 Decl. of Agent Sierra (Aug. 21, 2025), App’x I to Appellant’s Mot. to Attach.
43 App. Ex. XI at 7.
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of the representation” either from the unsworn statement or the 3 January 2025 phone call.44 The R.C.M. 810(f) military judge found that “[n]either TDC articulated a tactical reason for not requesting records concerning the Appellant’s participation in the crash response other than complying with the Appellant’s wishes that were communicated on 3 January 2025.”45 It is unclear when TDC became aware of Appellant’s PTSD diagnosis.46 Appellant and TDC discussed Appellant’s PTSD-related medications as they related to the defense of mental responsibility,47 but once they were aware of the diagnosis, TDC did not explore why Appellant was diagnosed with PTSD, which would have led them to Appellant’s participation in the Osprey crash response. Instead, TDC relied on Appellant alone to determine which documents in his medical record would be relevant and effective as evidence in extenuation and mitigation.48 “[T]he TDC did not obtain the Appellant’s complete mental health records, request a medical release, contact a treatment provider, or independently investigate the claimed relationship between the diagnosis and his response to the 8 June 2022 crash.”49
The text message communications between Capt E.P and Appellant from 13 November to 3 January show that Capt E.P. was mostly focused on the plea agreement and the stipulation of fact.50 Captain E.P. did ask Appellant for character statements and commendatory material to present a good sentencing
44 R.C.M. 810(f) Hr’g Tr. at 213.
45 App. Ex. XI at 7.
46 App. Ex. XI at 7.
47 See R. at 119–127.
48 In response to the R.C.M. 810(f) military judge’s question regarding Capt E.P.
asking Appellant for medical records beyond the one-page letter from his doctor, Capt E.P. replied:
We asked him for any documentation that would elaborate his condition, and we told him it wouldn’t necessarily rise to the level of, you
know, needing any sort of medical evaluation to determine his culpability, but it could, you know, provide matters of extenuation and mitigation, and he only provided the one. I asked him for any medical records. So, I guess, I assumed that he would provide any and all relevant
medical records because I asked him to [provide] any medical records
that could substantiate his condition or diagnosis.
R.C.M. 810(f) Hr’g Tr. at 222.
49 App. Ex. XI at 7.
50 App. Ex. XI at 7.
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case.51 Appellant provided a letter from his doctor stating he had been diagnosed with PTSD and screenshots of his conversation with the YCSO and recommended to TDC that they reach out to CID for additional information. Appellant did not provide further information, but the R.C.M. 810(f) military judge found that “[b]efore 3 January 2025, neither TDC took steps to independently prepare a sentencing case.”52 Similar to the court in Scott, we cannot perceive a tactical reason for not conducting any investigation to obtain evidence in extenuation and mitigation in the months prior to 3 January and depending solely on Appellant to provide and determine all potentially relevant evidence himself. Accordingly, we conclude Appellant has met his burden to show that TDC were deficient in preparing for the presentencing part of the court-martial.
b. Prejudice to Appellant
Faced with numerous prosecution exhibits with aggravating evidence and little information provided in extenuation and mitigation, the military judge imposed the maximum sentence authorized under the plea agreement. On 3 January 2025, Appellant instructed “TDCs not to present any commendatory material, character statements, or have character witnesses testify because he did not want colleagues, friends, or family to know about his misconduct.” 53 TDC complied with Appellant’s wishes as stated on that day and did not contact anyone. However, Appellant had two areas of extenuation and mitigation that he did not prohibit the TDC from doing any investigation: his PTSD diagnosis and his assistance to the YCSO.
The R.C.M. 810(f) military judge stated in her findings of fact that Appellant “did not prohibit the TDC from obtaining any additional information to support the [PTSD] diagnosis.”54 Appellant provided TDC a letter that stated
51 App. Ex. VII at 9.
52 App. Ex. XI at 8.
53 App. Ex. XI at 6. Due to Appellant’s statement, this Court did not examine whether TDC’s lack of independent investigation into potential character witnesses and “commendatory material”—depending solely on Appellant—resulted in TDC not being able to provide Appellant with relevant information with which to make an informed decision as to the benefit of character evidence in his sentencing case and was therefore prejudicial to Appellant.
54 App. Ex. XI at 7.
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only his diagnosis of PTSD, but if TDC had reviewed the medical records themselves, they would have found a referral for mental health services for PTSD as a result of Appellant responding to the crash in 2022.55
Similarly, the R.C.M. 810(f) military judge also found “[t]he evidence established that the Appellant declined to involve friends, family, and colleagues as character witnesses, but the Appellant did not instruct his TDC to omit evidence of his cooperation with law enforcement.”56 Appellant did ask TDC to reach out to CID to assist them in finding the point of contact with the YCSO, but TDC abdicated their role by asking trial counsel to investigate for them. If TDC had reached out to the CID agent who investigated Appellant’s actions, he would have directed them to the people who could assist them to find the correct point of contact.57
The military judge recommended suspending a substantial portion of the confinement and modifying the dishonorable discharge to a bad-conduct discharge specifically based on Appellant’s unsworn statement regarding his assistance to the YCSO and Appellant’s response to the Osprey crash that led to his PTSD, if those events could be substantiated.58 TDC’s lack of investigation into the causal link between the Osprey crash and Appellant’s mental health diagnosis, as well as his assistance to the YCSO, resulted in the military judge having little evidence in extenuation and mitigation to consider when sentencing Appellant. We therefore conclude there is a reasonable probability that the adjudged sentence would have been different absent TDC’s deficient performance.
c. Remedy
In accordance with Article 66(f)(2), UCMJ, if this Court sets aside the sentence, we may either modify the sentence to a lesser sentence or order a rehearing. In determining whether to order a rehearing or to modify the sentence, we considered the military judge’s recommendations as to the sentence; the action of the convening authority resulting from both the plea agreement and trial counsel’s submission of a letter of substantial assistance; and our own
55 See Entry from Official Military Medical Record (May 8, 2023), App’x A, Encl. 4
to Appellant’s Mot. to Attach.
56 App. Ex. XI at 10.
57 Decl. of Agent Sierra (Aug. 21, 2025), App’x I to Appellant’s Mot. to Attach.
58 R. at 150.
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experience and training.59 In the interest of judicial economy, and considering the entirety of the record, the military judge’s recommendation as to the sentence, and the convening authority’s action as a result of trial counsel’s submission of a letter of substantial assistance on behalf of Appellant, we set aside the adjudged sentence and modify the sentence to the following: reduction to E-1, confinement for six months, forfeiture of all pay and allowances, and a bad-conduct discharge.
III. CONCLUSION
After careful consideration of the entire record, we SET ASIDE the sentence, and consistent with Article 66(f)(2)(A), UCMJ, we MODIFY the sentence to a lesser sentence of: reduction to E-1, confinement for six months, forfeiture of all pay and allowances, and a bad-conduct discharge.
FOR THE COURT:
MARK K. JAMISON
Clerk of Court
59 The military judge could not have sentenced Appellant to less than 12 months
in accordance with the plea agreement. The military judge recommended a reduction to 15 months if Appellant’s unsworn statement was substantiated. However, according to the Entry of Judgment, the convening authority approved a reduction of confinement to six months after the trial counsel provided a letter of substantial assistance recommending a reduction in confinement to at least eight months. Trial counsel’s substantial assistance letter does not consider the assistance Appellant provided to the YCSO, but only his compliance with the plea agreement requiring him to agree to testify truthfully as a witness in a proceeding regarding another Marine. The convening authority’s decision to reduce confinement to six months was not a result of the military judge’s recommendation, but compliance with the plea agreement.
14