IN THE U.S.

NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD
WASHINGTON, D.C.

BEFORE

W.L. RITTER C.L. SCOVEL M.J. SUSZAN

UNITED STATES

v.

Michael D. BAIER
Private First Class (E-2), U.S. Marine Corps

NMCCA 200200476 Decided 17 March 2005

Sentence adjudged 29 January 2001. Military Judge: R.K.

Fricke. Review pursuant to Article 66(c), UCMJ, of General
Court-Martial convened by Commanding General, Marine Corps Base,
Hawaii, Kaneohe Bay, HI.

Maj ANTHONY WILLIAMS, USMC, Appellate Defense Counsel

LCDR ERIC MCDONALD, JAGC, USN, Appellate Defense Counsel
Capt 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AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT.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 to
wrongfully distribute ecstasy and cocaine, wrongful use of
lysergic acid diethylamide (LSD) on myriad occasions, wrongful
distribution of LSD, 3,4-methylenedioxymethamphetamine (ecstasy),
and cocaine on myriad occasions, and breaking restriction, in
violation of Articles 81, 112a, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 912a, and 934. The appellant was
sentenced to confinement for 30 months, reduction to pay grade E-
1, and a dishonorable discharge. The convening authority
approved the adjudged sentence and, pursuant to a pretrial
agreement, suspended confinement in excess of 24 months for 12
months from the date of trial.
 This case is before us on remand. A panel of this court
previously reviewed the record, including the appellant's
contention that the sentence was unduly severe, and affirmed the
findings and sentence in an unpublished opinion. The Court of
Appeals for the Armed Forces (CAAF) affirmed the findings.
However, finding that this court recited an incorrect standard
from a previous decision that had later been overturned, the CAAF
set aside the sentence and remanded the case for a new sentence
appropriateness review by this court. United States v. Baier, 60
M.J. 382 (C.A.A.F. 2005). No additional assignments of error
have been submitted by the appellant's defense counsel for this
second review.

We have carefully reviewed the record of trial, the

appellant's summary assignment of error, and the Government's
response. Since the findings in this case have already been
affirmed by our superior court, our review on remand is limited
to the issue of the lawfulness and appropriateness of the
adjudged sentence.

Sentence Appropriateness

The appellant contends that a dishonorable discharge is

inappropriately severe in his case. We disagree.

A court martial is free to impose any legal sentence it

deems appropriate. United States v. Turner, 34 C.M.R. 215, 217
(C.M.A. 1964); RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2000 ed.). On review, a court of criminal appeals "may
affirm only such findings of guilty and the sentence or such part
or amount of the 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 with determining sentence appropriateness, rather than
granting clemency. United States v. Healy, 26 M.J. 394, 395-96
(C.M.A. 1988); R.C.M. 1107(b). Clemency, which involves bestowing
mercy, is the prerogative of the convening authority. An
appropriate sentence results from an "individualized
consideration" of the nature and seriousness of the offense and
the character of the accused. United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982).

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 During the presentencing hearing, the defense presented a
number of letters from friends and family attesting to the
appellant's good character, as well as a supportive letter from
the appellant's Congressman. The defense also presented expert
testimony from a clinical and forensic psychologist regarding the
appellant's attention deficit hyperactive disorder (ADHD) and
drug dependency. In his unsworn statement, the appellant
explained how he chose to involve himself in substance abuse, and
expressed his remorse.

On the other hand, the appellant engaged in a series of

serious offenses, involving a conspiracy to distribute controlled
substances, including to other Marines. The appellant admitted
that he facilitated a number of such transactions, distributing
LSD, ecstasy, and cocaine, and that two of these occasions
occurred in a barracks on board Marine Corps Base Hawaii. The
appellant further admitted to wrongfully using LSD on eight
occasions while on active duty.

Taking all of these factors into consideration, we find the

sentence, including the dishonorable discharge, fully appropriate
for this offender and his offenses. A dishonorable discharge is
reserved for the more serious offenses, such as "offenses usually
recognized in civilian jurisdictions as felonies[.]" R.C.M.
1003(b)(8)(B). Given the appellant's voluntary and extensive
involvement in a criminal drug conspiracy that operated aboard a
Marine Corps base, and mindful of the appellant's character and
background, we are convinced that the adjudged punishment,
including the dishonorable discharge, is appropriate in this
case.

We therefore affirm the sentence as correct in law and fact,

and find that no error materially prejudicial to the substantial
rights of the appellant was committed. See Articles 59(a) and
66(c), UCMJ.

For the Court

R.H. TROIDL
Clerk of Court

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