UNITED STATES, Appellee 

v. 

Jaime J. PINERO, Cryptologic Technician Administrative Second 

Class 

U.S. Navy, Appellant 

No. 03-0279 

Crim. App. No. 200101373 

 

United States Court of Appeals for the Armed Forces 

Argued October 8, 2003 

Decided June 21, 2004 

BAKER, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Captain James D. Valentine, USMC (argued). 

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued); 

Commander R. P. Taishoff, JAGC, USN (on brief); Colonel Rose M. 

Favors, USMC, and Captain Glen R. Hines, USMC. 

Military Judge: R. W. Redcliff 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION. 
United States v. Pinero, No. 03-0279/NA 

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Judge BAKER delivered the opinion of the Court. 

 In accordance with his pleas, Appellant was convicted by a 

military judge at a special court-martial of unauthorized 

absence terminated by apprehension and five specifications of 

wrongful use of a controlled substance in violation of Articles 

86 and 112a, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. §§ 886 and 912a (2000). The adjudged and 

approved sentence provided for a bad-conduct discharge, 

confinement for 72 days, and reduction to pay grade E-1. The 

United States Navy-Marine Corps Court of Criminal Appeals 

affirmed. United States v. Pinero, 58 M.J. 501 (N-M. Ct. Crim. 

App. 2003)(en banc). We granted review of the following 

question: 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY 

ACCEPTING APPELLANT’S GUILTY PLEA TO AN UNAUTHORIZED 

ABSENCE IN EXCESS OF THIRTY DAYS WHEN APPELLANT WAS SUBJECT 

TO MILITARY CONTROL AND CUSTODY DURING A PORTION OF THE 

CHARGED PERIOD. 

Appellant was charged with and pleaded guilty to a 53-day 

period of unauthorized absence. However, Appellant testified, 

and the military judge concluded, that he returned to military 

control and authority at some point during this period of 

unauthorized absence before initiating a second period of 

unauthorized absence. As a result, the record of trial 

demonstrates a substantial basis in law and fact to question 

Appellant’s plea to a 53-day period of unauthorized absence. 
United States v. Pinero, No. 03-0279/NA 

3

Although the legal error committed by the military judge in this 

case may not have prejudiced Appellant on sentencing in light of 

his other convictions, our recent decision in United States v. 

Jenkins, ___ M.J. ___ (C.A.A.F. 2004), requires that we remand 

to allow the Court of Criminal Appeals to complete its review 

pursuant to Article 66, UCMJ 10 U.S.C. § 866 (2000), consistent 

with this opinion and with Jenkins. 

BACKGROUND 

Appellant entered a guilty plea to a period of unauthorized 

absence from his unit, Naval Security Group Activity, Kunia, 

Hawaii, that began on October 23, 2000, and was terminated by 

apprehension on December 15, 2000. During the providence 

inquiry, Appellant stated that at some time in mid-November and 

prior to Thanksgiving, a petty officer second class (E-5) from 

his command came to his off-base house and ordered him to 

participate in a command-directed fitness-for-duty urinalysis 

screening. According to Appellant, he dressed in his uniform 

and proceeded with the command representative to the Makalapa 

Medical Clinic at Pearl Harbor and then returned home. This 

evolution took approximately five hours, and Appellant stated 

that he did not thereby intend to terminate his absence. 

Appellant did not report for duty the following day as directed 

by the command representative. By Appellant’s admission, his 
United States v. Pinero, No. 03-0279/NA 

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absence ended on December 15 when he was apprehended at his 

house. 

Based on this record, the judge stated: 

It would appear that at least for a 5-hour period during 

the [unauthorized absence] period, Petty Officer Pinero was 

subject to military control and authority. He certainly 

complied with an order issued by his commanding officer to 

participate in a urinalysis and blood sample screening, and 

that would apparently . . . terminate the unauthorized 

absence at that point. And when he was ordered to report 

for duty the next day, that would appear to commence a 

second period of unauthorized absence, which was 

subsequently terminated by his apprehension on 15 December. 

However, lacking a factual basis to determine the precise day on 

which the first absence ended and the second began, the judge 

found “as a matter in extenuation that during the period of 

unauthorized absence, at least for 5 hours, Petty Officer Pinero 

did subject himself to military custody and control and would 

not, in fact, have been an unauthorized absentee for that 

period.” 

The judge solicited counsels’ opinions on how to proceed 

and whether the pretrial agreement remained undisturbed. Trial 

counsel adopted the judge’s suggestion that even if the precise 

date of the urinalysis was not determined, the agreement was 

still binding because “[i]t’s certainly proper for the court to 

find two short periods of [unauthorized absence] encompassed in 

a single extensive period.” The military judge further 
United States v. Pinero, No. 03-0279/NA 

5

suggested that “even though there’s [sic] two periods, he’s 

still, I think, technically UA during every day of that period.” 

The court recessed to explore the significance of the fivehour period. Counsel were unable to fix the date of the 

urinalysis or otherwise confirm Appellant’s presence at the 

clinic in November. Ultimately, trial defense counsel adopted 

the military judge’s theory that the charged period was 

appropriate and stated that “[w]e want to stick with the deal 

and ask you to consider whatever extenuation the providence 

inquiry may have elicited.” 

In affirming, the Court of Criminal Appeals concluded that 

the five-hour period was “a de minimis interruption of the 

alleged [unauthorized absence].” 58 M.J. at 503. The court 

further concluded that Appellant waived the defense of early 

termination since he lacked the intent to terminate his 

unauthorized absence, and that there was no material prejudice 

to Appellant’s substantial rights because “Appellant was not 

misled as to the charge, and no unfairness resulted as the 

variance did not increase his punitive exposure.” Id. at 504. 

The Government’s Answer before the lower court contained 59 

lines of legal analysis. The CCA’s en banc opinion replicates 

48 of those lines verbatim or with modest grammatical or 

citation edits. Another six lines appear with more substantial 

modification. This material appeared in 8 of the CCA’s 13 
United States v. Pinero, No. 03-0279/NA 

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paragraphs of legal analysis. But the lower court’s conclusions 

regarding waiver of available defenses and whether a de minimis 

absence was consistent with this Court’s holding in United 

States v. Francis, 15 M.J. 424, 429 (C.M.A. 1983), were not 

based on the Government’s Answer. 

DISCUSSION 

The military justice system takes particular care to test 

the validity of guilty pleas because the facts and the law are 

not tested in the crucible of the adversarial process. Further, 

there may be subtle pressures inherent to the military 

environment that may influence the manner in which 

servicemembers exercise (and waive) their rights. The 

providence inquiry and a judge’s explanation of possible 

defenses are established procedures to ensure servicemembers 

knowingly and voluntarily admit to all elements of a formal 

criminal charge. See, e.g., United States v. Care, 18 C.M.A. 

535, 539, 40 C.M.R. 247, 251 (1969)(citing McCarthy v. United 

States, 394 U.S. 459, 466 (1969)); United States v. Chancelor, 

16 C.M.A. 297, 299, 36 C.M.R. 453, 455 (1966)(“Congress made 

clear the nature of the safeguards which they intended to 

surround the receiving of [guilty pleas].”). These procedures 

have also been incorporated into the Rules for Courts-Martial 

[hereinafter R.C.M.] and the guides for courts-martial. See

R.C.M. 910(e) and discussion; Manual for Courts-Martial, United 
United States v. Pinero, No. 03-0279/NA 

7

States (2002 ed.) [hereinafter MCM], Guide for General and 

Special Courts-Martial A8-1; MCM, Guide for Summary CourtsMartial A9-1. 

We are cognizant that in guilty-plea cases the quantum of 

proof is less than that required at a contested trial. Before 

accepting a plea, due process requires a military trial judge to 

question the accused “to make clear the basis for a 

determination by the military judge or president whether the 

acts or the omissions of the accused constitute the offense or 

offenses to which he is pleading guilty.” Care, 18 C.M.A. at 

541, 40 C.M.R. at 253. See R.C.M. 910(e). A plea of not guilty 

must be entered where a “substantial indication of direct 

conflict between the accused’s plea and his following 

statements” arises. United States v. Logan, 22 C.M.A. 349, 351, 

47 C.M.R. 1, 3 (1973). Within this framework, guilty pleas are 

rejected on appellate review only when the record of trial shows 

a substantial basis in law and fact for questioning the plea. 

United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002); United 

States v. Prater, 32 M.J. 433 (C.M.A. 1991). 

 “Where an accused’s responses during the providence inquiry 

suggest a possible defense to the offense charged, the trial 

judge is well advised to clearly and concisely explain the 

elements of the defense in addition to securing a factual basis 

to assure that the defense is not available.” United States v. 
United States v. Pinero, No. 03-0279/NA 

8

Jemmings, 1 M.J. 414, 418 (C.M.A. 1976). Also, “in a guilty 

plea case, inconsistencies and apparent defenses must be 

resolved by the military judge or the guilty pleas must be 

rejected.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 

1996)(citing Jemmings, 1 M.J. at 418; United States v. Dunbar, 

20 C.M.A. 478, 43 C.M.R. 318 (1971)). 

In the context of Article 86, the elements of the offense 

often include an aggravating factor of duration that bears on 

the maximum authorized punishment. Appellant was charged with a 

53-day period of continuous unauthorized absence. However, 

Appellant’s statements regarding the interruption of his absence 

created a substantial basis to question the providence of his 

guilty plea because termination in this case is a defense to an 

absence exceeding 30 days. The military judge seemed to 

recognize as much when he concluded that a second period of 

unauthorized absence commenced following the command-directed 

urinalysis screening. Termination was not merely a “possible” 

defense here — the judge secured a factual basis establishing 

that Appellant was, for a five-hour period, not guilty of 

unauthorized absence. For these reasons, we hold that there was 

a substantial basis in law and fact to question Appellant’s 

guilty plea to a 53-day unauthorized absence. 

Having found that Appellant was under military control and 

custody and not absent on a date in November, it was incumbent 
United States v. Pinero, No. 03-0279/NA 

9

upon the military judge to resolve any conflicting facts so the 

correct duration could be determined and counsel could decide 

how to proceed regarding the remainder of the charged period. 

Notwithstanding Appellant’s return to military control, the 

judge and counsel attempted to preserve the pretrial agreement 

by finding a continuous 53-day absence based on the fact that 

Appellant was not present for duty for the entire day of the 

urinalysis. However, the hours of departure and return were not 

alleged, therefore, the unresolved termination date would have 

counted as a day of duty. MCM, Part IV, para. 10.(c).(9). 

Therefore, as a matter of law, on this record, the date of the 

urinalysis could not have sufficed as both the termination date 

of the first period of absence and the inception date for any 

subsequent period. Thus, the military judge’s conclusion that 

Appellant was “technically UA during every day of that period” 

was erroneous. 

As important, even if Appellant’s absence had been charged 

from a specific hour, Appellant’s unauthorized absence could not 

have been continuous. A military judge may find multiple 

absences within a single charged period so long as the maximum 

authorized punishment does not exceed that for the longer 

period. Francis, 15 M.J. at 429. Under Francis there must be a 

factual basis to support the inception date of a second absence 

where that date is essential to calculating the legal 
United States v. Pinero, No. 03-0279/NA 

10

punishments for Article 86 violations. That is, without an 

inception date it is impossible to know whether duration is an 

aggravating factor. 

A factual interruption in a continuous period of 

unauthorized absence cannot be overlooked by a court where such 

interruption changes the qualitative nature of the offense and 

the punitive exposure. Moreover, whether there is incentive to 

do so or not, a servicemember cannot plead guilty to an offense 

he did not commit, in this case 53 days of continuous 

unauthorized absence. United States v. Schwabauer, 37 M.J. 338 

(C.M.A. 1993); United States v. Lewis, 18 C.M.A. 287, 289, 39 

C.M.R. 287, 289 (1969)(An accused may not “abandon evidence of a 

defense in favor of possible advantages derived from a guilty 

plea.”). Acceptance of Appellant’s plea in this case may prove 

to be harmless, but it was still error to accept the plea and we 

should not conflate that which is harmless with that which is de 

minimis in our analysis. 

The record of trial establishes sufficient facts to affirm 

Appellant’s conviction for an unauthorized absence of some 

lesser period. United States v. Harris, 21 C.M.A. 590, 593-94, 

45 C.M.R. 364, 367-68 (1972). Notwithstanding counsels’ 

inability to establish the early termination date, such a date 

may be established by facts elicited during Appellant’s plea 

inquiry. United States v. Simmons, 3 M.J. 398 (C.M.A. 1977). 
United States v. Pinero, No. 03-0279/NA 

11

There is a factual basis on this record to support a nine-day 

absence beginning October 23 and terminating on November 1, the 

earliest date Appellant could have terminated his absence based 

on the plea colloquy. The failure of the military judge to 

conclusively establish the date on which Appellant was under 

military control at the clinic leaves the inception date for any 

additional unauthorized absence period unresolved. Thus, the 

current state of the record does not support a conviction for an 

absence extending beyond November 1. See, e.g., Harris, 21 

C.M.A. at 593, 45 C.M.R. at 367 (“Proof of a date of inception 

obviously is indispensable to a successful prosecution for 

unauthorized absence if a conviction is to be had for an 

unauthorized absence which exceeds one day, the proven date of 

return.”). Therefore, the military judge’s acceptance of the 

plea and his subsequent finding of guilty were error. 

Regarding prejudice, in his brief to this Court Appellant 

argues that “the maximum punishment for an unauthorized absence 

in excess of thirty days is dramatically more significant than 

even twice the maximum punishment for an absence of less than 30 

days.” He also argues that a punitive discharge is not an 

authorized punishment for an unauthorized absence not exceeding 

30 days. Moreover, termination by apprehension is only relevant 

in aggravation for unauthorized absence over 30 days. While we 

agree with Appellant that these are indeed accurate statements 
United States v. Pinero, No. 03-0279/NA 

12

of the law, the argument ignores the fact that Appellant was 

tried at a special court-martial. Even without the absence 

offense, the aggregation of the other offenses to which 

Appellant pleaded guilty exposed Appellant to the jurisdictional 

maximum of a special court-martial.1

 

DECISION 

 In light of our conclusions above, the decision of the 

United States Navy-Marine Corps Court of Criminal Appeals is set 

aside. As review is not yet complete in accordance with our 

decision in United States v. Jenkins, ___ M.J. ___ (C.A.A.F. 

2004),2

 the record of trial is returned to the Judge Advocate 

General of the Navy for remand to the Court of Criminal Appeals 

for review consistent with this opinion. Thereafter, Article 

67, UCMJ, 10 U.S.C. § 867 (2000), shall apply. 

 

1

 At the time of Appellant’s trial Rule for Courts-Martial 

201(f)(2)(B) authorized a special court-martial to adjudge no 

more than a bad-conduct discharge, confinement for six months, 

and forfeitures of two-thirds pay per month for six months. 

2

 Although not assigned or specified as an issue, we note that 

the lower court's opinion in this case contains substantial 

replication from the Government's brief.