UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, ALDYKIEWICZ, and MARTIN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 JAMES A. CRAWFORD 

United States Army, Appellant 

ARMY 20110765 

III Corps and Fort Hood 

Gregory A. Gross, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Captain John L. Schriver, JA; Captain Brian J. Sullivan, JA (on brief). 

For Appellee: Major Catherine L. Brantley, JA; Captain Rachael T. Brant, JA (on 

brief). 

28 June 2013 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

MARTIN, Judge: 

A military judge sitting as a special court-martial convicted appellant, 

pursuant to his pleas, of absence without leave terminated by apprehension, and 

wrongful possession of spice, in violation of Articles 86 and 92, Uniform Code of 

Military Justice, 10 U.S.C. §§ 886, 892 (2006) [hereinafter UCMJ]. The military 

judge sentenced appellant to a bad-conduct discharge, confinement for six months, 

forfeiture of $978.00 per month for six months, and reduction to the grade of E-1. 

The convening authority approved the adjudged sentence, and credited appellant 

with two days of confinement against the sentence to confinement. 

This case is before us for review under Article 66, UCMJ. Appellate counsel 

raised two issues to this court and appellant personally raised matters pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the raised errors 

warrants discussion and relief. 
CRAWFORD—ARMY 20110765 

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BACKGROUND

 Prior to trial, appellant entered into a pretrial agreement wherein he agreed to 

plead guilty to all charges and specifications. At trial, consistent with the pretrial 

agreement, appellant pleaded guilty to being absent without leave from 24 May 2005 

until his absence was terminated by apprehension on 4 January 2011. 

 The military judge then questioned appellant on his guilt to the charged 

offenses. At the outset of the questioning, the military judge listed the elements for 

absence without leave terminated by apprehension and defined apprehension by 

providing the following instruction: 

“Apprehension” means that the accused’s return to military 

control was involuntary. It must be shown that neither the 

accused nor persons acting at his request initiated the return. 

 

See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook 

[hereinafter Benchbook], para. 3-10-2(d) (1 Jan. 2010). Appellant acknowledged he 

understood and admitted the elements as set forth by the military judge. The 

military judge then engaged in the following colloquy with appellant regarding the 

absence without leave charge, alleged to have been terminated by apprehension: 

ACC: On 4 January 2011, I was arrested in my hometown of 

Haleyville, Alabama, by my local police department. They came 

to my work place with a warrant, arrested me, and took me back to 

Winston County Jail. I was held there until I was transferred back 

to military control. And also with the additional ---- 

MJ: Hold on one second, Private Crawford. 

ACC: Yes, sir. 

MJ: Let me just ask you a couple of questions about the first one. 

So at any time in between the 24th of May of 2005 and 4th of 

January 2011, did you attempt to turn yourself back into military 

control? 

ACC: No, sir. 

MJ: Alright, at any time between those dates, did you think that 

you had authority to be gone? 

ACC: No, sir. 
CRAWFORD—ARMY 20110765 

 3

MJ: You told me that you didn’t; but by any chance, did you 

think that you did? 

ACC: No, sir. 

MJ: Okay. Tell me about the possession of the spice. 

 

The foregoing colloquy constituted the entirety of the plea inquiry conducted by the 

military judge on the absence without leave offense. Based on his questions, 

appellant’s responses, and the stipulation of fact, the military judge accepted 

appellant’s plea as provident. 

LAW AND DISCUSSION 

We review a military judge’s acceptance of an accused’s guilty plea for an 

abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); 

United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “[I]n reviewing a 

military judge’s acceptance of a plea for an abuse of discretion [we] apply a 

substantial basis test: Does the record as a whole show a substantial basis in law 

and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater, 

32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted). There exists a 

substantial basis in fact to question a plea of guilty where a military judge “fails to 

obtain from the accused an adequate factual basis to support the plea.” Id. (citing

United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). In order to establish an 

adequate factual predicate for a guilty plea, the military judge must elicit “‘factual 

circumstances as revealed by the accused himself [that] objectively support that 

plea[.]’” Jordan, 57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364, 

367 (C.M.A. 1980)) (alterations in original). 

In this case, there exists a substantial basis to question the providence of 

appellant’s plea to absence without leave terminated by apprehension. 

We conclude that the facts, as provided by appellant, do not unequivocally establish 

that his absence was terminated by apprehension. To establish an absence was 

terminated by apprehension, for purposes of Article 86, UCMJ, “the facts on the 

record must establish [the] return to military control was involuntary.” United 

States v. Gaston, 62 M.J. 404, 405 (C.A.A.F. 2006). “Apprehension contemplates 

termination of the accused’s absence in an involuntary manner; and termination 

otherwise is an absence ended freely and voluntarily.” Id. (citing United States v. 

Fields, 13 U.S.C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962)). 

During the colloquy with the military judge, appellant provided a “bare 

bones” explanation of the arrest. He did not provide the judge with the nature of the 

warrant, nor did he suggest whether the civilian arrest was made at the request of the 

military. He did not indicate one way or another if he provided any information to 
CRAWFORD—ARMY 20110765 

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civilian authorities upon his arrest that may have changed the character of his return 

to military control to one that was voluntary. Moreover, the military judge did not 

ask any questions regarding the arrest to help explain the facts and circumstances. 

Indeed, it is fair to say that similar to the appellant’s providence inquiry in Gaston, 

the inquiry here was “exceptionally brief.” Gaston, 62 M.J. at 406. 

To assist in our review of the adequacy of the plea, we next review the 

stipulation of fact. See id. (citing to the lower court’s description of the colloquy to 

justify examining the entire record to determine whether facts to support the plea 

were established); Jordan, 57 M.J. at 239 (providing a broader interpretation of 

Article 45, UCMJ, and Rule for Courts-Martial 910(e), and expanding review of a 

plea beyond the providence inquiry). The stipulation in appellant’s case provides, in 

relevant part: 

The accused remained away from the Army and did not return to 

Fort Hood until he was apprehended by the local police in 

Haleyville, Alabama 4 January 2011. Thereafter, the accused was 

held in the Winston County Jail, Alabama until transferred to Fort 

Hood, Texas. 

The foregoing paragraph contained in the stipulation of fact is similarly unhelpful in 

establishing the element of termination by apprehension, in that it fails to address 

whether appellant’s return to military control was voluntary or involuntary. 

Thus, while, the providence inquiry and the stipulation of fact clearly 

establish that civilian authorities arrested appellant and then he was transferred to 

military control, it does not automatically follow that the return to military control 

was involuntary.1

 Therefore, looking at the record in its entirety, we find there is a 

substantial basis in fact to question appellant’s plea that his absence was terminated 

 

1

 Although the military judge defined “apprehension” for appellant, his inquiry on 

the subject essentially ended there. However, had appellant’s case been tried before 

a panel, the military judge would have instructed that an arrest by civilian 

authorities and return to military control does not, by itself, prove that an accused’s 

absence was terminated by apprehension. Benchbook, para. 3-10-2. Rather, it is 

some evidence that the panel can consider in deciding whether the accused’s absence 

ended voluntarily or involuntarily. Had this instruction been discussed with 

appellant during the providence inquiry, it may have clarified how his absence was 

terminated. 
CRAWFORD—ARMY 20110765 

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by apprehension.2

 We are, however, confident that the military judge’s inquiry is 

minimally sufficient to establish appellant’s guilt to the lesser-included offense of 

absence without leave. 

CONCLUSION

Accordingly, upon consideration of the entire record, including those matters 

personally raised by appellant pursuant to Grostefon, the court affirms only so much 

of the findings of guilty of Charge I and its specification as finds that appellant did, 

on or about 24 May 2005, without authority, absent himself from his unit, to wit: 

Bravo Company, 1st Battalion, 12th Cavalry Regiment, 4th Brigade Combat Team, 

4th Infantry Division, located at Fort Hood, Texas, and did remain so absent until on 

or about 4 January 2011. The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the error noted, the entire record, and in 

accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), 

and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors 

identified by Judge Baker in his concurring opinion in Moffeit, the sentence as 

approved by the convening authority is AFFIRMED. All rights, privileges, and 

property, of which appellant has been deprived by virtue of that portion of the 

findings set aside by this decision, are ordered restored. See UCMJ art. 75(a). 

Senior Judge KERN and Judge ALDYKIEWICZ concur. 

 FOR THE COURT: 

 ANTHONY O. POTTINGER 

 

 

2

 Even when expanding our evaluation to the remainder of the record, we conclude 

there is insufficient information to resolve the issue of termination by apprehension. 

There is no further evidence on this issue prior to the military judge’s acceptance of 

appellant’s plea, and only one passing comment during presentencing that appellant 

“didn’t come back on his own.”

ANTHONY O. POTTINGER 

Chief Deputy Clerk of Court 

FOR THE COURT: