In United States v. Tuscan, 67 M.J. 592 (C.G. Ct. Crim. App. 2009) the Appellant shared an off-base house with two other Coast Guard personnel. The three personnel occasionally socialized with four local teenagers who were juniors in high school. This socializing sometimes included playful wrestling between the male participants. This case resulted from “horseplay [that] got out of control.” The victim, one of the teenagers, was “handcuffed, hog-tied, slapped around with a belt,” with the Appellant subsequently pointing a handgun owned by his roommate at the victim when he was tied up. Sentencing evidence established the crime significantly influenced the victim’s social behavior, making him much more introverted. The roommate who owned the handgun was tried first and was reduced from E-4 to E-1 and fined $5000, with the provision if he did not pay the fine he would be confined for sixty days. The Court ruled that there was no error in sentencing. The CGCCA used the three-step test from United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999): (1) are the cases “closely related,” (2) if so, whether the sentences are “highly disparate,” and (3) can the government prove a “rational basis for the disparity?” The Court concluded the cases were closely related because both individuals faced the exact same charges and specifications, which were all based on the same misconduct. In the absence of analysis, the CGCCA also found the two sentences “highly disparate.” Ultimately, however, the CGCCA found a rational basis for the disparity. The “Appellant’s initiative with the gun escalated the horseplay and victimized [the victim] (and discredited the Coast Guard) to a significantly greater extent than [the co-actor’s] role. This Court finds that the disparity in the sentence is justifiable as a matter of law.” The CGCCA also observed that the Appellant’s service record “was not as clean” as the co-actor’s record. Despite finding no error, the Court used its Article 66 authority to approve only six months of the twelve month sentence.
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