UNITED STATES ARMY COURT 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. Robertson, Military Judge 

Colonel Francis P. King, Staff Judge Advocate 

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

Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on 

brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, 

JA; Captain Steve T. Nam, JA (on brief). 

13 May 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to his pleas, of failure to obey a lawful order, false official statement, 

assault upon a commissioned officer, possession of child pornography, and 

possession of ten video files of bestiality, in violation of Articles 92, 107, 128, and 

134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 928, 934 (2006) 

[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge, confinement for three 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 eighteen months, and reduction 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 error, one of which warrants discussion and 

relief. Appellant claims the military judge abused his discretion when he accepted 
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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 prejudicial to good order and discipline or servicediscrediting. We agree. 

“During a guilty plea inquiry the military judge is charged with determining 

whether there is an adequate basis in law and fact to support the 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 discretion 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; Rule for Courts-Martial 

910(e). 

The government charged appellant with knowingly possessing child 

pornography in violation of 18 U.S.C. § 2252A(a), “such 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–Martial, 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 constitute ‘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 substantial basis in fact in the record to support 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 violation of § 2252A. However, the plea inquiry does not 

establish facts demonstrating that appellant’s conduct was prejudicial to good order 

and discipline or service-discrediting. The military judge never explained these 

elements to appellant, nor did 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 support his plea to committing conduct 

prejudicial to good order 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 violating 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 Specification 1 of Charge I as finds that appellant “did, at Fort 

Bliss, Texas, between on or about 1 June 2010 and 22 August 2010, a place under 

exclusive or concurrent federal jurisdiction, or under the control of the United States 

Government, knowingly possess a laptop computer containing more than 10 images 
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3 

and video files of child pornography, in violation of 18 U.S. Code, Section 

2252A(a)(5).” 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, 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). 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: