UNITED STATES ARMY COURT 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, Fort Carson 

Mark A. Bridges, Military Judge (arraignment) 

Kurt Bohn, Military 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; Lieutenant Colonel Imogene M. Jamison, JA; 

Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA (on brief in response to 

specified issue). 

For Appellee: Lieutenant 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 

----------------------------------- 

SUMMARY DISPOSITION 

-----------------------------------

Per Curiam: 

A military judge, sitting as a special court–martial, 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 discharge, confinement for five months, and 

reduction to the grade of E–1. The convening authority approved the adjudged 

sentence. 

 Appellant submitted his case to our court upon its merits. Upon review, we 

specified the following 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 discretion in accepting 

appellant’s plea to The Charge and its Specification and will grant relief in our 

decretal paragraph. 

FACTS 

 On 15 February 2011, the government preferred the following 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 therefrom permanently, absent 

himself from his unit, to wit: Headquarters and 

Headquarters Company, 4th Infantry Brigade Combat 

Team, 4th Infantry Division (Mechanized), located at or 

near Fort Carson, Colorado, and did remain 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 entered into a stipulation of fact. The stipulation of fact contained 

the following information: 

. . . Prior to deserting the accused was assigned to Rear 

Detachment, 1st Battalion-9th Infantry Regiment, 2d 

Brigade Combat Team, 2d Infantry Division, Fort Carson, 

Colorado. Since his return from AWOL, the Accused has 

been assigned to Headquarters 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 (reflagged from 1-9 Infantry in 

2008) deployed to Afghanistan in support of Operation 

Enduring Freedom. . . . 
DEWEY—ARMY 20110983 

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 During the providence inquiry, appellant told the military judge his present 

unit was “HHC, Brigade, 4th Brigade.” Appellant then informed the military judge 

that on 16 February 2007, his unit was “1/9 Infantry, 2nd Brigade, 2nd ID.” The 

following exchange also took place during the providence inquiry: 

MJ: Do you believe and do you admit that on or about 16 

February 2007, with the intent to remain permanently 

absent, you quit your unit, that is—well 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 identified in The 

Specification as Headquarters and Headquarters Company, 

4th Infantry Brigade Combat Team, located at Fort 

Carson, Colorado, and you did so and remained 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 providence inquiry: 

MJ: Do you agree that the unit 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 current unit, Headquarters and 

Headquarters Company, 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 appellant’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 applies the “substantial basis” test: “Does the record as a 
DEWEY—ARMY 20110983 

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whole show a substantial basis in law and fact for questioning 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 organization 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 serves both to identify 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 appellant with deserting “Headquarters and Headquarters 

Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized).” 

However, appellant actually stated he was assigned to Rear Detachment, “1/9 

Infantry, 2nd Brigade, 2nd ID” when he absented himself from the unit and 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 contained in the stipulation of fact shows 

that appellant deserted an entirely different unit than that alleged. 

Stated differently, the facts provided during the providence inquiry and in the 

stipulation of fact fail to establish that appellant 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, 7th Battalion, 2d Combat Support Training Brigade (IA), 

SATC Armor, First US Army, Fort Knox, Kentucky” and refusing to “speculate the 

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

43 C.M.R. 446, 447 (A.C.M.R. 1970) (setting aside an unauthorized absence offense 

because the military judge convicted appellant of leaving “Company E, 3d Battalion, 

1st Advanced Individual Training Brigade, located at Fort Huachuca, Arizona” 

where the proof demonstrated appellant absented himself from “Company B, 3d 

Battalion, 1st Combat Support Training Brigade, Fort Huachuca, Arizona”). 

The facts elicited with regard to “Headquarters and Headquarters Company, 

4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized)” only show 

that appellant was assigned to this unit both upon his return to the Army and at the 

time of his court-martial. Although the facts arguably establish continuity between 

Rear Detachment, “1/9 Infantry, 2nd Brigade, 2nd ID,” and “1-12 Infantry, 4th 

Brigade Combat Team,” no link was factually provided between those units and 

“Headquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th 

Infantry Division (Mechanized).” 
DEWEY—ARMY 20110983 

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The military judge should have identified and resolved the apparent 

inconsistency as to the unit the government alleged appellant deserted and the unit 

appellant actually deserted. However, the military judge failed to do so. Thus, the 

military judge abused his discretion in accepting 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. 2009) (mem. op.) 

(finding that a military judge abused his discretion in accepting appellant’s plea to 

unauthorized absences because “he failed to establish a sufficient 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 and the unit he was charged with 

deserting. A required element 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 judge abused his discretion in this case by accepting a 

guilty plea to desertion 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 desertion charge involving the 

same period of time but alleging 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: