
    UNITED STATES, Appellee, v. Captain DARRELL H. PINGREE, Jr., [ XXX-XX-XXXX ], United States Army, Appellant.
    ACMR 9201908.
    U.S. Army Court of Military Review.
    30 March 1994.
    For Appellant: David R. Dowell (argued); Captain Thomas D. Wight, JAGC (on brief).
    For Appellee: Captain Jane F. Polcen, JAGC (argued); Colonel Dayton M. Cramer, JAGC, Major James L. Pohl, JAGC, Major Kenneth T. Grant, JAGC (on brief).
    Before CREAN, MORGAN, and GONZALES, Appellate Military Judges.
   OPINION OF THE COURT

CREAN, Senior Judge:

The appellant was found guilty, in accordance with his pleas, by a military judge sitting as a general court-martial, of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence to dismissal, confinement for five years, and forfeiture of $2,000.00 pay per month for sixty months.

The appellant asserts, inter alia, that the testimony of a witness that was purported to be “victim impact” testimony should not have been admitted and that the sentence is inappropriately severe. We disagree as to the admission of the evidence, but grant sentence relief.

This is a sad ease. The appellant and his wife were married in 1968 and had five children. The fourth child, the victim, fifteen-years old at the time of the offense, was born mentally retarded. She has been diagnosed with the mental ability of a seven-year-old.

The appellant was a former enlisted man in the Navy. After discharge, he entered a physician assistant’s school and joined the Army National Guard. Upon completion of school, he was activated as a physician’s assistant in the Army and served as a warrant officer. He was commissioned as a captain in the Regular Army in 1992.

The appellant and his wife had a supposedly happy marriage until 1986 when there were marital difficulties. They sought counseling and assistance. Finally, the appellant’s wife revealed that she was a lesbian. The appellant and his wife continued to live together at Fort Belvoir, Virginia, for a few months until he was assigned to Fort Eustis, Virginia. The family continued to live at Fort Belvoir when the appellant went to Fort Eustis. Because of this forced separation, the appellant’s wife told him that she and the children no longer needed him. However, a few months later the relationship between the wife and the children deteriorated and the appellant received numerous calls to return to the house to resolve conflicts between the wife and the children. Finally, the wife decided she no longer wanted to live with her children but with her female lover. She turned custody of the children over to the appellant. The appellant became the sole parent for the children. Because of debts run up by the appellant’s wife, he filed for bankruptcy, and worked two jobs in addition to his military duties to make ends meet.

In 1991, the appellant was transferred to Fort Irwin, California. His two youngest children accompanied him to the new assignment. The older children were grown and living on their own. The third child went to five with the family six months after the move to Fort Irwin. She left later to marry.

The victim attended school in Barstow, a two-hour daily bus ride from home. In early 1992, the appellant started to drink heavily because he could not see an end to his problems. After drinking, he had sexual intercourse with the victim on a number of occasions in April and May 1992. The victim, because of her mental handicap and mental age, could not consent to the acts of intercourse. She was able to tell her sister what was happening and her sister notified authorities.

The victim’s special education teacher, testified for the government concerning the victim’s education, mental test results, and her adaptive behavior to normal activities. He also testified that there had been some change in her behavior about the time the incidents with the appellant were taking place. The defense did not object to the portion of the teacher’s testimony dealing with the victim’s mental retardation. However, when the teacher testified that in the spring of 1992 he noticed changes in the victim’s behavior, the defense objected that it was speculation whether the changes in behavior were the result of troubles the victim had at home. The military judge overruled the objection and permitted the teacher to testify as to the behavioral changes he observed.

The prosecution is permitted to present evidence regarding aggravating circumstances directly relating to the offense for which the appellant has been found guilty. Rule for Courts-Martial 1001(b)(4) [hereinafter R.C.M.]. Aggravating evidence may include evidence of social, psychological or medical impact on the victim. R.C.M. 1001(b)(4) discussion. As in all evidence, it must be relevant. Military Rule of Evidence 402 [hereinafter Mil.R.Evid.]. The evidence must not amount to uncharged misconduct. See Mil.R.Evid. 404(b); United States v. Taliaferro, 2 M.J. 397 (A.C.M.R.1975). We find that the evidence of the change in the victim’s behavior, as testified to by her teacher, is an aggravating circumstance resulting from the offense of which the appellant has been found guilty. See United States v. Wilson, 35 M.J. 473, 476 (C.M.A.1992); United States v. Fontenot, 29 M.J. 244, 251 (C.M.A.1989). Accordingly, we hold that the military judge properly admitted this evidence.

The appellant also asks this court to disapprove the dismissal as an inappropriate punishment since it is unduly harsh. He points to his long service, the pressures he was under because of his family situation, the opinions of various medical personnel explaining the underlying nature of appellant’s actions, and his remorse as reasons that his sentence is unduly harsh.

We are directed by statute to affirm only such part of the sentence as we find correct in law and fact and which, based on the entire record, should be approved. UCMJ art. 66(c), 10 U.S.C. § 866(c). This court’s duty is to determine sentence appropriateness, that is to do justice, rather than to grant clemency. United States v. Healy, 26 M.J. 394 (C.M.A.1988).

The offense he has been found guilty of is reprehensible. The appellant has served in an active duty or reserve component status for over twenty-seven years and is retirement eligible. The marital, family, and emotional pressures that the appellant was facing before he turned to alcohol and committed the offense do provide some mitigation for the appellant’s conduct. Even while facing these pressures, the appellant continued to perform his military duties. We also note that the appellant had cancer in the past and that his son is in need of medical treatment for injuries suffered when he was hit by a military police vehicle at Fort Irwin. Under the unique circumstances of this case, we find that the dismissal portion of the sentence is not appropriate.

While it is not the function of this court to grant clemency, we realize that our action on the sentence is also a form of clemency that aids the victim. The true victim in this ease is the appellant’s mentally retarded daughter. She has been violated by her father. She obviously is in need of lifetime medical and other support. While she may be entitled to some support if a dismissal is approved, the appellant will be less likely to provide her the level of support she would have received had he been able to retire. We note from the R.C.M. 1106 submissions that the civilian authorities have taken the necessary steps to ensure that pay due the appellant is garnished for child support for the victim and her younger brother. The appellant should be in a position to provide the victim the support that he could provide because of his years of military service. The civilian authorities can ensure this happens.

The findings of guilty are affirmed. After considering the entire record, the court affirms only so much of the sentence as provides for confinement for five years and forfeiture of $2,000.00 pay per month for sixty months.

MORGAN, Judge,

concurring:

I concur separately because I share several of the concerns expressed in the dissent.

Cases involving intra-familial physical and sexual abuse are far too frequent, and the scenarios we see at this level are far too familiar. This case is different. Because of a unique and overwhelming combination of personal misfortunes, the appellant, a Vietnam veteran and former enlisted soldier, mistakenly turned to alcohol to help cope with his stressful circumstances. He drank so heavily that he often experienced blackouts, and during a two-month period he had sexual intercourse with his mentally handicapped daughter, although he was too drunk to remember the details.

After an initial reluctance, the appellant cooperated fully with the Criminal Investigation Division authorities regarding these allegation's. His guilty plea was made not only as an acknowledgement of responsibility, but also in an effort to avoid subjecting his daughter to the additional stress which a persistent denial would invariably trigger. He knew that he committed the shameful acts alleged, and he accepted his daughter’s version of the details of each incident.

Substantial and unrebutted expert opinion testimony during the sentencing phase of this trial established the potential for rehabilitation of the appellant, the genuineness of his remorse, and the possibility of reconciliation for this dysfunctional family relationship.

The appellant has richly earned and certainly deserves a general court-martial conviction and a sentence to confinement. There is no excuse for what he did. Approval of the dismissal, however, would reflect indifference to the needs of his victim, and constitute an inappropriately severe punishment for this particular retirement-eligible offender. Accordingly, I concur with the court’s disposition.

GONZALES, Judge,

dissenting:

I strongly dissent. The circumstances of this case are not so unique to compel me to join Senior Judge Crean and Judge Morgan in not affirming the appellant’s dismissal. The fact that the appellant was experiencing personal difficulties and stresses in his life is not an excuse for repeatedly raping an innocent child, nor a reason for disapproving the dismissal.

The evidence clearly shows that the appellant is a “regressed, incestuous child molester” who initially denied committing the offenses on his mentally retarded fifteen-year-old daughter. Alcohol did not force the appellant to rape his daughter. Nor was the committing of the offenses an isolated, onetime occurrence.

Although the evidence shows that the appellant has served in an active duty and reserve component status for over twenty-seven years, he had only twenty-three years of service for retirement purposes as of the date of the action.

The evidence shows that the appellant was separated from his ex-wife and had been living the life of a sole parent with either three or two children for at least five years.

The appellant is not dying from cancer. The evidence shows that the appellant’s cancer, in the form of a tumor in his neck, was originally diagnosed and removed in 1982. The cancer has been in remission since then and the appellant is required to be medically evaluated every two months.

The appellant’s son does not require further medical treatment. The evidence shows that the appellant’s then eleven-year-old son was struck by a military police vehicle while riding his bike on Fort Irwin in October 1991. The appellant, however, was very vague in his unsworn statement and in his R.C.M. 1106 matters to the convening authority on the extent of his son’s injuries. The appellant also has never indicated what type of medical treatment his son still needs. Nor did the appellant’s ex-wife’s attorney advise the convening authority in her letter, dated 8 September 1992, that the son required further medical treatment as a result of this accident.

The appellant also never provided any specifics on his financial problems or the extent of his debts between 1986 and 31 August 1992. We are not even aware of the amount of his debts, if any, that existed on his date of trial.

The victim has not been left alone and unsupported as a result of this trial. We know that she is living with her mother, who according to the testimony of the appellant’s mother, “makes a great deal of money on her job.” We know that the Circuit Court of Fairfax County issued a payroll deduction order on 2 November 1992, for $950.00 against that part of the appellant’s pay that was not forfeited. We also know that the victim’s immediate family includes an older brother and two older sisters who are no longer dependent on the appellant or their mother for support. Furthermore, the victim appears to be eligible for federal benefits under either 10 U.S.C. § 1058 (Dependents of members separated for dependent abuse: transitional compensation) or 10 U.S.C. § 1408(h) (Protections for dependent victims of abuse by members of the Armed Forces).

The circumstances of this ease are not so different from all the other dependent abuse cases we have seen at this level to warrant sentence relief. I also am not convinced that disapproval of the appellant’s dismissal would ensure that the victim would receive a much higher level of support than if the dismissal was approved. Accordingly, the adjudged sentence in this case is very appropriate. 
      
      . See 10 U.S.C. § 1408 and 10 U.S.C. § 1058. Note there are three sections 1058 enacted and we refer to the section 1058 entitled: Dependents of members separated for dependent abuse: transitional compensation.
     
      
      . The circumstances of this case are less compelling, for example, than those in United States v. Roemhildt, 37 M.J. 608 (A.C.M.R.1993), Staff Sergeant Roemhildt was a voluntary self-referral for committing indecent sexual acts upon his ten-year-old stepdaughter. We, nevertheless, affirmed his approved sentence that included a bad-conduct discharge.
     
      
      . As an alternative, I note that the appellant entered into a pretrial agreement where the convening authority agreed to approve no confinement in excess of twelve years and six months. If I was inclined to grant any measure of relief on the appellant's sentence, I would do so by commuting his dismissal to confinement for seven years and six months, thereby making the period of confinement as approved total twelve years and six months. United States v. Hodges, 22 M.J. 260, 264 (C.M.A.1986).
     