## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, YOB, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 BRANDON M. DEWEY United States Army, Appellant

ARMY 20110983

Headquarters, Fo rt Carson Mark A. Bridges, Milit ary Judge (arraignment) Kurt Bohn, Militar y Judge (trial)

Lieutenant Colonel Steven P. Haight, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA (on brief); Colonel Patricia A. Ham, JA; Li eutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA (on brief in response to specified issue).

For Appellee: Lieu tenant Colonel Amber J. Roach , JA (on brief); Lieutenant

Colonel Amber J. Roach , JA; Captain Stephen E. Latino, JA (on brief in response to specified issue).

15 October 2012

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SUMMARY DISPOSITION

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Per Curiam:

A military judge, sitting as a special court–martia l, convicted appellant, consistent with his plea, of desertion in violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad–conduct disc harge, confinement for five months, and reduction to the grade of E–1. The convening authority approved th e adjudged

sentence.

Appellant submitted his case to our court upon its merits . Upon review, we specified the fo llowing issue:DEWEY—ARMY 20110983

2 WHETHER THE MILITARY JUDGE ABUSED HIS

DISCRETION IN ACCEPTING APPELLANT’S PLEA OF

GUILTY TO THE CHARGE AND ITS SPECIFICATION.

We conclude that the military judge abused his discre tion in accepting appellant’s plea to The Char ge and its Specification a nd will grant relief in our decretal paragraph.

FACTS

On 15 February 2011, the government preferred the follow ing Charge and its Specification against appellant:

In that Private (E-2) Brandon M. Dewey, U.S. Army, did, on or about 16 February 2007 , without authority and with intent to remain away th erefrom permanently, absent himself from his unit, to wit: Headquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (M echanized), located at or near Fort Carson, Colorado, and did re main so until he was apprehended on or about 11 November 2010.

Prior to trial, appellant offered to plead guilty to The Charge and its Specification and entere d into a stipulation of fact. Th e stipulation of fact contained the following information:

. . . Prior to deserting the accused was assi gned to Rear Detachment, 1st Battalion-9t h Infantry Regiment, 2d Brigade Combat Team, 2d Infantry Division, Fort Carson,

Colorado. Since hi s return from AWOL, the Accused has been assigned to Headqu arters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized), Fort Carson, Colorado. 1-9 Infantry Regiment reflagged to 1-12 Infantry Regiment on 8 April 2008.

. . .

In May/June 2009, the Accused’s unit, 1-12 Infantry, 4th Brigade Combat Team (reflag ged from 1-9 Infantry in 2008) deployed to Afghanistan in support of Operation Enduring Freedom. . . .DEWEY—ARMY 20110983

3 During the providence in quiry, appellant told the military judge his present unit was “HHC, Brigade, 4th Brigade.” A ppellant then informed the military judge that on 16 February 2007, his unit was “1/9 Infantry, 2nd Brig ade, 2nd ID.” The following exchange also took pl ace during the providence inquiry:

MJ: Do you believe and do y ou admit that on or about 16 February 2007, with the intent to re main permanently absent, you quit you r unit, that is—wel l now, let me ask you this, was [sic] is your current unit?

Acc: Current unit is, HHC Brigade, 4th Brigade, sir.

MJ: That you quit your unit id entified in The Specification as Headquarters and Headquarters Company, 4th Infantry Brigade Combat Team, located at Fort Carson, Colorado, an d you did so and re mained absent in

desertion until on or about 11 November 2010?

Acc: Yes, sir.

Later on, appellant had the following discussion with the military judge during the provide nce inquiry:

MJ: Do you agree that the uni t you absented, 1/9 Infantry, was your unit of assignment at the time on 16 February 2007, at Fort Carson, Colorado?

Acc: Yes, sir.

MJ: And that your curren t unit, Headquarters and Headquarters Compa ny, is the unit that you have been attached to upon your return?

Acc: Yes, sir.

LAW AND DISCUSSION

A military judge’s acceptance of an appella nt’s guilty plea is reviewed for an

abuse of discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). “A military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea —an area in which we afford significant

deference.” Id. (citing United States v. Jordan , 57 M.J. 236, 238 (C.A.A.F. 2002)). Ultimately, this court applie s the “substantial basis” te st: “Does the record as aDEWEY—ARMY 20110983

4 whole show a substant ial basis in law and fact for que stioning the guilty plea.” Id. (quoting United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)).

“Under military law, the Government must establish not only that an accused [deserted,] but also the organizati on from which he [deserted].” United States v.

Bowman , 21 U.S.C.M.A. 48, 50, 44 C.M.R. 102, 104 (1971) (citations omitted). In pleading a desertion offense, “the naming of a particular organization as the accused’s unit of assignment se rves both to iden tify and limit the offense charged.”

United States v. Walls , 1 M.J. 734, 737 (A.F.C.M.R. 1975) (citation omitted). The government charged a ppellant with deserting “Hea dquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mec hanized).” However, appellant actually stated he was assigned to Rear Detachment, “1/9 Infantry, 2nd Brigade, 2nd ID ” when he absented himself from the unit a nd that after a couple of years he formed the intent to never return. The stipulation of fact also stated that appellant left this same unit. Therefore, the information provided during the providence inquiry and the information co ntained in the stipul ation of fact shows that appellant deserted an entirely different unit than that alleged.

Stated differently, the facts provided du ring the providence inquiry and in the stipulation of fact fail to establish that ap pellant deserted “Headquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized)” as charged. See United States v. Murrell , 50 C.M.R. 793, 795 (A.C.M.R. 1975) (dismissing an unauthorized absence charge from “US Army Company C, 7th Battalion, 2d Basic Combat Training Brigade, US Army Training Center Armor, Fort Knox, Kentucky” because the proof showed appellant absented himself from “Company C, 7t h Battalion, 2d Combat Sup port Training Brigade (IA), SATC Armor, First US Army, Fort Knox, Kentucky” and refusing to “speculate the

unit is the same and the differe nces are descriptive only.”); United States v. Holmes

, 43 C.M.R. 446, 447 (A.C .M.R. 1970) (setting aside an unauthoriz ed absence offense because the military judge co nvicted appellant of leaving “Company E, 3d Battalion,

1st Advanced Individual Tr aining Brigade, located at Fort Huachuca, Arizona” where the proof demonstrat ed appellant absented hi mself from “Company B, 3d Battalion, 1st Combat Supp ort Training Brigade, Fort Huachuca, Ar izona”).

The facts elicited with regard to “H eadquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized)” only show that appellant was assigned to this unit both upon his retu rn to the Army and at the

time of his court-martial. Although the facts arguably establish continuity between Rear Detachment, “1/9 Infa ntry, 2nd Brigade, 2nd ID,” and “1-12 Infantry, 4th Brigade Combat Team,” no li nk was factually provided between those units and “Headquarters and Headquarte rs Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized).”DEWEY—ARMY 20110983

5 The military judge should have iden tified and resolved the apparent inconsistency as to the unit the governmen t alleged appellant deserted and the unit appellant actually deserted. However, the military judge failed to do so. Thus, the military judge abus ed his discretion in accepti ng appellant’s plea without establishing a sufficient factual predicate. See United States v. Toth , ARMY 20081016, 2009 WL 6835718, at *4 (Army Ct. Crim. App. 30 Oct. 2 009) (mem. op.) (finding that a military judg e abused his discretion in a ccepting appellant’s plea to

unauthorized absences because “he failed to establish a sufficie nt factual basis to support a required element of the offense of AWOL, that is, the accused’s actual unit of assignment”). We will not speculate at this level as to whether there is a requisite

link between the unit that appellant deserted an d the unit he was charged with deserting. A required elemen t of desertion is that an accused must have absented

himself from his unit. Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 9.b.(1)(a). The military j udge abused his disc retion in this ca se by accepting a guilty plea to deserti on from a unit appellant never left.

As a result, we must set aside and dismiss without prejudice The Charge and its Specification. However, a new trial upon another dese rtion charge involving the same period of time but alle ging appellant’s correct unit or organization would not

be barred. See Walls , 1 M.J. at 737; Holmes , 43 C.M.R. at 447.

CONCLUSION

The finding of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: