## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before GLANVILLE, KERN, and MORAN Appellate Military Judges

UNITED STATES, Appellee

v. Specialist MORGAN L. PALMORE United States Army, Appellant

ARMY 20121090

Headquarters, 21st Thea ter Sustainment Command

R. Peter Masterto n, Military Judge Colonel Ralph J. Tremaglio, III, Staff Judge Advocate

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Capt ain Daniel H. Karna (on brief).

26 June 2014

--------------------------------- SUMMARY DISPOSITION

--------------------------------- Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one specification of maki ng a false official statement; one specification of wrongfully disposing of mil itary property; one sp ecification of using hashish, a derivative of marijuana; one specificati on of possessing hashish, a derivative of marijuana; and one specification of unlawful ly altering a public record, in violation of Articles 107, 108, 112a, and 134, Uniform C ode of Military Justice, 10 U.S.C. 907, 908, 912a, and 934 [hereinafter UCMJ] . The mili tary judge sentenced appellant to a bad-conduct disc harge, twelve months confinement, and
reduction to Private E-1. The convening authority approved the sentence as adjudged
and waived automatic forfeitures for a period of six months.

This case is before ou r court for review under Article 66, UCMJ. Appellant raises one assignment of erro r which warrants both discus sion and relief. Appellant

also raises one ma tter pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), which we have co nsidered and find is without merit.PALMORE—ARMY 20121090

2 The parties do not dispute the relevant facts. Appellant was a Petroleum Supply specialist serving on a joint co mbat outpost located on the border of Afghanistan and Uzbekistan. On 19 Ja nuary 2012, appellant’ s platoon sergeant, acting on reports of fellow soldiers, foun d appellant in a fuel truck smoking hashish (a marijuana derivative) with a hookah. Appellant was al so found in possession of 15.5 grams of hashish. Subs equent investigation revealed that from the period of approximately 15 October 201 1 to 19 January 2012 , appellant had b een allowing the Afghan nationals who were delivering Jet Propellant 8 (JP8) fuel to withhold quantities of JP8 fuel in ex change for giving him hashish. Appellant concealed the hashish-for-fuel transactions by falsely report ing fuel delivery and fuel dispensation

statistical numbers to his company Executive Officer ( XO). Appellant would write
the false numbers on an erasable whiteboar d in the XO’s office . In turn, and in reliance upon the false numbers, the XO w ould generate fuel pr ocurement orders. Appellant initially lied to in vestigators, claiming he pu rchased hashish at a local bazaar, but later confessed to his actual scheme and method of drug procurement.

During the providen cy inquiry, the military judge presumed that the erasable
whiteboard was the alte red official record. Apparently counsel for the parties shared this presumption as no other theory was offe red or discussed in the trial record. On appeal, appellant asserts that the erasable whiteboard is not a public record. It served as predicate da ta – false predicate data – whic h was entered by the XO on to a public record.

We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A .F. 2008). In doing so, we apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the fact ual basis or the law, that would raise a substantial question regardi ng appellant’s guilty plea. Id.

Appellant contends and the government concedes that the whiteboard is not a public record. We ag ree. The whiteboard in this case was intended to be written
over or erased as new inform ation became available, similar to the function of a military sick slip, i.e ., it conveys information but is not a record. United States. v. Abbey , 63 M.J. 631, 633-34 (Army Ct. Crim. App. 2006). Whiteboards are not public records precisely because they are not intended to memorialize historical events, and the data they disp lay is intended to be destroyed imme diately after it is
transmitted. Id

.

Here, the substantial equivale ncy of function of a whiteb oard to a si ck slip is
obvious. A whiteboard is inte nded to display data only for that period of time required for its transm ission to a person or other media, just as a sick slip isPALMORE—ARMY 20121090

3 destroyed as soon as it conveys inform ation to a unit commande r about the status of
a member of the command. Id

. *

CONCLUSION

The findings of guilty of Charge IV and its Specifi cation are set aside. The remaining findings of guilty are AFFIRMED. In light of the error noted, we have applied the principles of United States v. Winckelmann , 73 M.J. 11 (C.A .A.F. 2013). In particular, the sentenci ng landscape has not changed, the rema ining convictions capture the gravamen of appellant’s crimin al conduct, appellant was sentenced by a military judge, and we have the experien ce and familiarity with the remaining convictions to reassess appellant’s sent ence. Accordingly, the sentence is AFFIRMED. All rights, priv ileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision, are hereby ordered restored.

FOR THE COURT:

ANTHONY O. POTTINGER Chief Deputy Clerk of Court

* See also United States v. McCoy , 47 M.J. 653 (A rmy Ct. Crim. App. 1997) (placing

false information on a blank form is not the willful and unlawful altera tion of an existing publ ic record). ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: