## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 ERIK D. JENKINS United States Army, Appellant

ARMY 20110673

Headquarters, Fort Bliss

David H. Roberts on, Military Judge Colonel Francis P. King, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).

13 May 2013

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of failure to ob ey a lawful order, false official statement, assault upon a commissioned officer, po ssession of child pornography, and possession of ten video files of bestiality, in violation of Artic les 92, 107, 128, and 134, Uniform Code of Milit ary Justice, 10 U.S.C. §§ 892, 907, 928, 934 (2006) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for th ree years, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening authority approved a sentence to a badconduct discharge, confinement for eighte en months, and reduc tion to the grade

of E-1.

Appellant’s case is before this court for review pursuant to Article 66, UCMJ, and appellant raises two assignments of erro r, one of which warr ants discussion and relief. Appellant claims the military judge abused his discretion when he acceptedJENKINS—ARMY 20110673

2 appellant’s plea to the alternative theories of guilt alleged in the child pornography specification of which he was convicted. Specifically, appellant argues that the military judge failed to elicit a factual basis that appellant’s possession of child pornography was either prej udicial to good order and discipline or servicediscrediting. We agree.

“During a guilty plea inquir y the military judge is ch arged with determining whether there is an adequa te basis in law and fact to support th e plea before accepting it.” United States v. Inabinette , 66 M.J. 320, 321– 22 (C.A.A.F. 2008) (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). We review a military judge’s decision to accept a plea for an abuse of discre tion by determining

whether the record as a whole shows a substantial basis in law or fact for questioning the guilty plea. Id. at 322; UCMJ art. 45; Ru le for Courts-Martial 910(e).

The government charged appellant wi th knowingly po ssessing child pornography in violation of 18 U.S.C. § 2252A(a), “suc h conduct being prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.” See Manual for Courts–M artial, United States (2008 ed.), pt. IV, ¶ 60.c.(2), (3), and (4). As our superior court recently reiterated, “[t]he three

clauses of Article 134 c onstitute ‘three distinct and separate parts.’” United States

v. Fosler , 70 M.J. 225, 230 (C.A .A.F. 2011) (quoting United States v. Frantz

, 2 U.S.C.M.A. 161, 163, 7 C.M. R. 37, 39 (1953)). Thus, if a specification alleges all three, then there must be a su bstantial basis in fact in th e record to s upport a finding of guilty to all three.

Given the facts of this case , there is no question as to appellant’s possession of child pornography in viol ation of § 2252A. Howeve r, the plea inquiry does not establish facts demonstrating that appellant’s co nduct was prejudic ial to g ood order and discipline or service-discrediting. The military judge ne ver explained these elements to appellant, nor di d he discuss with appellant whether his conduct violated these elements. Consequently, the military judge did not elicit an adequate factual basis during his colloquy with appellant to suppo rt his plea to committing conduct prejudicial to good or der and discipline or of a nature to bring discredit upon the armed forces. Accordingly, on the record before us, we find a substantial basis in fact to question appellant’s pleas to viol ating Clauses 1 and 2 of Article 134, UCMJ.

CONCLUSION

On consideration of the entire record, the court affirms only so much of the finding of guilty of Specificat ion 1 of Charge I as finds that appellant “did, at Fort Bliss, Texas, between on or about 1 June 2010 and 22 August 2 010, a place under

exclusive or concurrent federal jurisdiction, or under the co ntrol of the United States Government, knowingly posses s a laptop computer containi ng more than 10 imagesJENKINS—ARMY 20110673

3 and video files of child pornography, in vi olation of 18 U.S. Code, Section 2252A(a)(5).” The remaining findings of guilty are A FFIRMED. Reassessing the sentence on the basis of the error noted, th e 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 200 6), to include the factor s identified by Judge Baker in his concurring op inion, the sentence as approved by the convening authority is AFFIRMED. All rights, pr ivileges, 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).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: