In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.
The appellant’s misconduct primarily involved this gruesome incident:
On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:
I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.
The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.
The appellant and his wife then took CW to the hospital. . .
Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:
The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.
After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.
After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”
Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.