United States v. Mader (2). (S.J. Stephens writes for himself and C.J. Monahan and J. Deerwester.)
Appellant was tried and sentenced by an “enlisted” panel and was originally sentenced to 190 days, TF, RiR, and a BCD.
This case involves hazing and assault committed against junior Marines. It is now before us a second time. In 2020, we found the evidence for one of Appellant’s specifications for hazing to be factually insufficient and set it aside and dismissed it with prejudice. But we affirmed a conviction for hazing for Appellant calling a junior Marine a derogatory racial name along with affirming the remaining four specifications of assault consummated by battery for punching the same junior Marine in the stomach and for burning three other junior Marines with a cigarette. We affirmed the burning specifications owing to our belief that the junior Marines could not have legally consented to such an action. United States v. Mader, 79 M.J. 803 (N-M. Ct. Crim. App. 202o) (1).
United States v. Mader, 81 M.J. 105 (C.A.A.F. 2021).
The issues again before the NMCCA were that the burning specification was insufficient because the Appellant had a reasonable belief that the victim consented, and the use of a derogatory racial slur was insufficient because the victim “did not feel abused, humiliated, oppressed, or demeaned.”
The burning incident was preceded with a bit of drinking. (Interesting that this Marine sergeant wasn’t also prosecuted for fraternization with PFCs and L/Cpls under the circumstances.)
“The conversation turned to the problems with the PTA exercise and morale in the communications platoon. Appellant brought up that he and others were “burned” with a cigarette when he joined the platoon as a way of bonding. With this, Appellant took his cigarette and burned the chest of both PFC Bravo and LCpl Echo and LCpl Delta’s shoulder. None of the junior Marines manifested any physical or verbal signs of lack of consent. The socializing continued for some time into the evening without incident.”
The next day, when Appellant “asked LCpl Echo about his burn, he responded, “I wouldn’t worry about it.” None of the junior Marines reported the incident.” An uninvolved L/Cpl hearing about the incident reported it.
At some point, Appellant was put in PTC. He later received Allen credit for six months of PTC. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). In Mader (1), the NMCCA reassessment affirmed the sentence without change. (S.J. Stephens wrote for himself and Js. Tang and Lawrence.)
The NMCCA finds the burning specification insufficient and dismisses it. That leaves the racial slur and a punching specification affirmed.
If I'm reading this correctly, the final approved sentence is a two pay-grade reduction. If so, there's some money coming back, is there not?
Cheers, Phil Cave
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.