## Facts

- Castillo enlisted in the U.S. Marine Corps in September 1997.
- Over roughly two years, Castillo made intermittent complaints of sexual harassment by senior Marines.
- Several officers investigated Castillo’s allegations.
- A Marine major reviewing the matter concluded the command should have reported Castillo’s allegations to the provost marshal.
- The command Equal Opportunity (EO) advisor documented multiple harassment incidents involving six different senior Marines over about 23 months.
- The EO advisor concluded Castillo was a victim of verbal harassment and sexual assault.
- In January 2001, Castillo began an unauthorized absence that lasted 366 days.
- Castillo was tried at a special court-martial before a military judge.
- Castillo was convicted of unauthorized absence in violation of Article 86, UCMJ.
- The military judge sentenced Castillo to a bad-conduct discharge, 51 days’ confinement, and reduction to E-1.
- The convening authority approved the adjudged sentence.
- Castillo appealed, arguing the approved sentence was inappropriately severe given the harassment record and the command’s response.
- In July 2001, the Navy–Marine Corps Court of Criminal Appeals (NMCCA) granted relief and returned the record to the convening authority for a new action consistent with the court’s decision.
- After the convening authority took a new action on remand, Castillo again sought review at NMCCA.

## Issues

1. Whether the convening authority’s post-remand action complied with NMCCA’s remand directions and applicable post-trial requirements.
2. Whether the approved sentence for a 366-day unauthorized absence—including a bad-conduct discharge—was inappropriately severe under Article 66(c), UCMJ, when considered alongside record evidence of sexual harassment/assault and documented command mishandling.

## Decision

- The court reviewed the case on further review after remand and the convening authority’s new action.
- The court affirmed the findings of guilty.
- The court found the convening authority’s post-remand action satisfied the remand and post-trial processing requirements.
- Applying its Article 66(c) authority, the court held the sentence, as approved after remand, was not inappropriately severe and affirmed the sentence, including the bad-conduct discharge.

## Legal Principles

- Under Article 66(c), UCMJ (as then in effect), a Court of Criminal Appeals reviews the entire record and determines which findings and sentence “should be approved.”
- Sentence appropriateness review permits consideration of record-based mitigation, including an accused’s personal circumstances and the surrounding command climate, even when those matters do not create a legal defense to the offense.
- A service court may weigh documented failures in a command’s response to misconduct (including mishandling of sexual-harassment allegations) when deciding whether an approved sentence is too severe, but it is not required to reduce a sentence if the offense and authorized punishments justify the result.
- A year-long unauthorized absence is a serious offense for which a punitive discharge may be approved at a special court-martial; mitigation may affect appropriateness, but it does not excuse extended absence from military control.
- When a case returns after an appellate remand for a new convening authority action, the appellate court may review whether the new action complied with the remand and whether the findings and sentence are correct in law and fact and appropriate on the whole record.

## Conclusion

In *United States v. Castillo*, 59 M.J. 600 (N-M. Ct. Crim. App. 2003), NMCCA reviewed the case after a prior remand for a new convening authority action and held that the post-remand action complied with the court’s directions, then affirmed both the unauthorized-absence conviction and the approved sentence, concluding that—even considering extensive, record-supported evidence that Castillo suffered sexual harassment and that the command handled her allegations poorly—the bad-conduct discharge, confinement, and reduction were not inappropriately severe for a 366-day unauthorized absence.


United States v. Castillo, 59 M.J. 600 (2003)