United States v. McPHAUL ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and BAKER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Leal L. M C PHAUL
Aviation Boatswain’s Mate (Handling) Airman Recruit (E-1)
U.S. Navy
Appellant
No. 202000195
Decided: 25 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Benjamin B. Robertson
Sentence adjudged 14 May 2020 by a special court-martial convened
at Naval Station Norfolk, Virginia, consisting of a military judge
sitting alone. Sentence in the Entry of Judgment: confinement for
ninety-four days and a bad-conduct discharge.
For Appellant:
Captain Kimberly D. Hinson, JAGC, USN
For Appellee:
Brian K. Keller, Esq.
United States v. McPhaul, NMCCA No. 202000195
Opinion of the Court
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Uniform Code of Military Justice arts. 59, 66, 10 U.S.C.
§§ 859, 866.
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the charges. Although we find no prejudice, Appellant is
entitled to have court-martial records that correctly reflect the content of his
proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App.
1998). In accordance with Rule for Courts-Martial 1111(c)(2), we modify the
Entry of Judgment and direct that it be included in the record.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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UNITED STATES NMCCA NO. 202000195
v. ENTRY
OF
Leal L. M C PHAUL JUDGMENT
Aviation Boatswain’s Mate
(Handling) Airman Recruit (E-1) As Modified on Appeal
U.S. Navy
Accused
25 February 2021
On 14 May 2020, the Accused was tried at Naval Station Norfolk, Virginia, by a
special court-martial, consisting of a military judge sitting alone. Military Judge
Benjamin B. Robertson presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge I: Violation of Article 85, Uniform Code of Military Justice,
10 U.S.C. § 885.
Plea: Not Guilty.
Finding: Not Guilty.
Specification: Desertion with the intent to shirk important service
from on or about 7 January 2020 until apprehension
on or about 9 February 2020.
Plea: Not Guilty.
Finding: Not Guilty.
Charge II: Violation of Article 86, Uniform Code of Military Justice,
10 U.S.C. § 886.
Plea: Guilty.
Finding: Guilty.
United States v. McPhaul, NMCCA No. 202000195
Modified Entry of Judgment
Specification 1: Absence from unit from on or about 29 December 2019
until on or about 4 January 2020.
Plea: Guilty.
Finding: Guilty.
Specification 2: Absence from unit from on or about 7 January 2020
until on or about 9 February 2020.
Plea: Guilty.
Finding: Dismissed as unreasonable multiplication of charges
with the Additional Charge of desertion, conditional upon
completion of appellate review for the Additional Charge.
Charge III: Violation of Article 87, Uniform Code of Military Justice,
10 U.S.C. § 887.
Plea: Guilty.
Finding: Guilty.
Specification: Missing movement through design on or about
17 January 2020.
Plea: Guilty.
Finding: Guilty.
Charge IV: Violation of Article 87b, Uniform Code of Military Justice,
10 U.S.C. § 887b.
Plea: Guilty.
Finding: Guilty.
Specification: Breach of restriction on or about 29 December 2019.
Plea: Guilty.
Finding: Guilty.
Charge V: Violation of Article 91, Uniform Code of Military Justice,
10 U.S.C. § 891.
Plea: Guilty.
Finding: Guilty.
Specification: Willful disobedience of a petty officer on or about
7 January 2020.
Plea: Guilty.
Finding: Guilty.
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United States v. McPhaul, NMCCA No. 202000195
Modified Entry of Judgment
Charge VI: Violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a.
Plea: Guilty.
Finding: Guilty.
Specification 1: Wrongful use of a controlled substance on or about
3 September 2019.
Plea: Guilty.
Finding: Guilty.
Specification 2: Wrongful use of a controlled substance on or about
25 October 2019.
Plea: Guilty.
Finding: Guilty.
Specification 3: Wrongful use of a controlled substance on or about
7 November 2019.
Plea: Guilty.
Finding: Guilty.
Specification 4: Wrongful use of a controlled substance on or about
9 February 2020.
Plea: Guilty.
Finding: Guilty.
Additional Charge: Violation of Article 85, Uniform Code of Military
Justice, 10 U.S.C. § 885.
Plea: Guilty.
Finding: Guilty.
Specification: Desertion from on or about 7 January 2020 until
apprehension on or about 9 February 2020.
Plea: Guilty.
Finding: Guilty.
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United States v. McPhaul, NMCCA No. 202000195
Modified Entry of Judgment
SENTENCE
On 14 May 2020, a military judge sentenced the Accused to the following:
Confinement for ninety-four days.
A bad-conduct discharge.
The Accused is credited with ninety-nine days’ confinement credit, to be deducted
from the adjudged sentence to confinement.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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