IN THE U.S. NAVY-MARINE CORPS COURT OF CRIMINAL APPEALSWASHINGTON NAVY YARDWASHINGTON, D.C.BEFORECHARLES Wm. DORMANC.J. VILLEMEZR.C. HARRISUNITED STATESv.Michael D. BAIERPrivate First Class (E-2), U.S. Marine Corps

NMCCA 200200476Decided 23 October 2003Sentence adjudged 29 January 2001. Military Judge: R.K.Fricke. Review pursuant to Article 66(c), UCMJ, of GeneralCourt-Martial convened by Commanding General, Marine Corps Base,Hawaii, Kaneohe Bay, HI.Maj ANTHONY C. WILLIAMS, USMC, Appellate Defense CounselCapt WILBUR LEE, USMC, Appellate Government Counsel

AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT.

PER CURIAM:A military judge, sitting as a general court-martial,convicted the appellant, pursuant to his pleas, of conspiracy towrongfully distribute ecstasy and cocaine, wrongful use of LSD onmyriad occasions, wrongful distribution of LSD, ecstasy, andcocaine on myriad occasions, and breaking restriction, inviolation of Articles 81, 112a, and 134, Uniform Code of MilitaryJustice, 10 U.S.C. §§ 881, 912a, and 934. The appellant wassentenced to confinement for 30 months, reduction to pay grade E-1, and a dishonorable discharge. The convening authorityapproved the adjudged sentence and, pursuant to a pretrialagreement, suspended confinement in excess of 24 months for 12months from the date of trial.

After carefully considering the record of trial, theappellant's summary assignment of error, and the Government'sanswer, we conclude that the findings and sentence are correct inlaw and fact and that no error materially prejudicial to thesubstantial rights of the appellant was committed.

See

Arts.59(a) and 66(c), UCMJ.

Sentence Appropriateness

In the appellant’s summary assignment of error, he assertsthat a sentence including a dishonorable discharge isinappropriately severe for him and his offenses. The appellantavers that this Court should approve only so much of the sentenceas provides for confinement for 30 months, reduction to pay gradeE-1, forfeiture of all pay and allowances, and a bad-conductdischarge. We disagree.It is well-settled that a court-martial is free to imposeany authorized sentence that it determines is fair and just.

United States v. Turner,

14 C.M.A. 435, 437, 34 C.M.R. 215, 217(1964); R

ULE

FOR

OURTS

-M

ARTIAL

1002, M

ANUAL

FOR

OURTS

-M

ARTIAL

, U

NITED

TATES

(2000 ed.). However, on review, this Court "may affirm only suchfindings of guilty and the sentence of or such part or amount ofthe sentence, as it finds correct in law and fact and determines,on the basis of the entire record, should be approved." Art.66(c), UCMJ. Courts of Criminal Appeals are tasked only withdetermining whether justice was properly administered and whetherthe accused received the punishment he deserved.

United Statesv. Healy, 26

M.J.

394, 395

(C.M.A. 1988). In contrast, clemency,which involves bestowing mercy, is the proper purview for theconvening authority.

Id.

; R.C.M. 1107(b).This Court may disapprove any portion of a sentence that itdeems inappropriately severe.

United States v. Landford

, 6 C.M.A.371, 376, 20 C.M.R. 87, 92 (1955). An appropriate sentenceresults from an "individualized consideration of the particularaccused on the basis of the nature and seriousness of the offenseand the character of the offender."

United States v. Rojas

, 15M.J. 902, 919 (N.M.C.M.R. 1983)(citing

United States v. Snelling

,14 M.J. 267 (C.M.A. 1982)),

aff’d

, 20 M.J. 330 (C.M.A. 1985).When reviewing a sentence it is important to consider the senseof justice of the community where the crime was committed whichshould not be disturbed unless “the harshness of the sentence is2

so disproportionate to the crime as to cry out for equalization."

Rojas

, 15 M.J. at 919.Despite any extenuating and/or mitigating circumstances inthe appellant’s case, a dishonorable discharge is appropriategiven the crimes the appellant committed.

See

Charge Sheet.First, the appellant conspired with other service members to bethe go-between with civilians to distribute ecstasy and cocaine.Second, he acted as a go-between on a myriad number of occasionsthat resulted in his procurement and distribution of LSD,ecstasy, and cocaine to other service members for profit. And,third, he himself personally used LSD on a myriad number ofoccasions. As in

United States v. Johnson

, 58 M.J. 509(N.M.Ct.Crim.App. 2003), these were not the appellant’s first (oreven second) UCMJ violations.We note that the appellant availed himself of theopportunity to request clemency from the convening authority.

See

Post-Trial Matters of 15 Aug 2001. Furthermore, the militaryjudge, in adjudging the sentence, and the convening authority, inapproving the sentence, were well aware of any extenuating and/ormitigating circumstances. After a careful review of the record,we conclude that the appellant’s criminal conduct warrants adishonorable discharge.The CA approved the appellant’s dishonorable discharge, thusdetermining that he considered that punitive discharge to beappropriate. CA’s Action of 24 Aug 2001. The appellant’sassignment of error amounts to nothing more than a request forclemency, which is the prerogative of the CA.

Healy

, 26 M.J. at395-96. The appellant received the individual considerationrequired based on the seriousness of his offenses and his owncharacter, which is all the law requires.

Rojas

, 15 M.J. at 919.As such, we decline to grant relief.

Conclusion

Accordingly, we affirm the findings and the sentence, asapproved by the convening authority.3