UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, HERRING, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E-1 JASMINE S. HERCULES 

United States Army, Appellant 

ARMY 20150197 

Headquarters, United States Army Cyber Center of Excellence (Provisional) 

and Fort Gordon 

Edye U. Moran, Military Judge 

Colonel Scott F. Young, Staff Judge Advocate (pretrial and recommendation) 

Lieutenant Colonel John A. Hamner II, Staff Judge Advocate (addendum) 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Jennifer K. Beerman, JA (on brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major John K. Choike, JA; 

Captain John Gardella, JA (on brief). 

26 July 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

A military judge, sitting as special court-martial, convicted appellant, 

pursuant to her plea, of one specification of desertion in violation of Article 85, 

Uniform Code of Military Justice, 10 U.S.C. § 885 (2012) [hereinafter UCMJ]. The 

military judge sentenced appellant to be discharged with a bad-conduct discharge 

and to be confined for five months. The military judge credited appellant with 

seventy days of pre-trial confinement credit.1

 The convening authority approved the 

sentence as adjudged, but instead should have approved only so much of the 

 

1

 At trial, the military judge ordered that appellant receive seventy days of 

(continued...) 
HERCULES—ARMY 20150197 

2

sentence to confinement as provided for 150 days based on the terms of the pretrial 

agreement. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises two assignments of error, both of which merit discussion and one of which 

merits relief. 

BACKGROUND 

 Appellant pled guilty to a three-year desertion terminated by apprehension. 

During the colloquy, the military judge accurately defined the elements of desertion 

and explained them to appellant. Appellant stated she understood the elements and 

had no questions. 

After the elemental explanation, the military judge asked appellant what made 

her decide to leave her unit. Appellant responded: 

I had a meeting with my first sergeant and captain and we 

were talking about how I wasn’t getting paid and I was 

getting evicted from my place and they laughed and told 

me if I needed money that I should work, so I decided to 

leave. . . 

(emphasis added.). 

 

(...continued) 

confinement credit, which is correctly entered in the report of the result of trial. The 

staff judge advocate’s recommendation (SJAR) merely states that the accused was in 

pretrial confinement for seventy days, but does not advise crediting appellant with 

confinement credit. Both the SJAR and the addendum recommend the convening 

authority “approve the findings and sentence as adjudged” without referencing the 

confinement credit. The convening authority’s action and the promulgating order 

also failed to include this credit. See Army Reg. 27-10, Legal Services: Military 

Justice, para. 5-32.a. (3 Oct. 2011) (requiring a convening authority to “show in 

[the] initial action all credits . . . regardless of the source of the credit . . . or for any 

. . . reason specified by the judge”); United States v. Delvalle, 55 M.J. 648, 649 n.1, 

656 (Army Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508, 510 n.2, 520 

(Army Ct. Crim. App. 2001). Appellant did not assign this failure as error or raise 

the matter personally pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1982). We will direct a correction in the promulgation order to reflect the proper 

credit. Additionally, to the extent appellant has not already received this credit, 

appellant will be credited with seventy days of confinement credit. 
HERCULES—ARMY 20150197 

3

 Appellant explained the meeting with her first sergeant and company 

commander occurred at their beckoning after a previous period of AWOL and after 

her recent discharge from an inpatient mental health facility. Appellant explained 

she was not getting paid because of punishment she previously received for her other 

unauthorized absences. When the military judge asked when the meeting with her 

commander and first sergeant occurred, appellant indicated in January. The military 

judge asked again “what made you leave?” Appellant responded “I was told to 

leave.” In response, the military judge asked “Did anyone in your unit give you 

authority to leave?” Appellant responded in the negative. 

 The judge continued the colloquy with appellant and later asked appellant if 

either her first sergeant or company commander gave her authority to be absent from 

her unit at any time. She responded no. The military judge then asked if anyone 

else in her unit gave her authority to leave–and appellant responded no. (emphasis 

added.). 

 As part of the pretrial agreement, appellant entered into a stipulation of fact in 

which she admitted all the elements of desertion to include leaving without 

authority. She also disclaimed any legal defense or justification for her desertion. 

 Prior to her court-martial, a sanity board convened pursuant to Rule for 

Courts-Martial [R.C.M.] 706 and determined appellant was: 1) mentally responsible 

at the time of the charged offense; and 2) not currently suffering from a severe 

mental disease or defect precluding her from having the ability to understand the 

charges or cooperate intelligently in her defense.2

The pretrial agreement states “[m]y defense counsel has advised me of the 

meaning and effect of my guilty plea, and I understand the meaning and effect 

thereof.” 

The military judge accepted appellant’s plea to desertion terminated by 

apprehension as provident. Appellant now complains the military judge abused her 

discretion by failing to resolve an inconsistency created during the providence 

inquiry when appellant stated “I was told to leave.” 

LAW AND DISCUSSION 

We review a military judge’s decision to accept a plea of guilty “for an abuse 

of discretion and questions of law arising from the guilty plea de novo.” United 

 

2

 In appellant’s sentencing case, as mitigation evidence her treating physician 

testified appellant suffered from severe depression, post-traumatic stress disorder 

due to childhood abuse, and borderline personality traits. These diagnoses, however, 

did not rise to the level of a defense. 
HERCULES—ARMY 20150197 

4

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “[T]he abuse of discretion 

standard of review recognizes that a judge has a range of choices and will not be 

reversed so long as the decision remains within that range.” United States v. Gore, 

60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 296 U.S. App. 

D.C. 93, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)). A guilty plea will be set aside 

on appeal only if an appellant can show a substantial basis in law or fact to question 

the plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The 

court applies this “substantial basis” test by determining whether the record raises a 

substantial question about the factual basis of appellant’s guilty plea or the law 

underpinning the plea. Id.; see also UCMJ art. 45(a); R.C.M. 910(e). 

 A providence inquiry into a guilty plea must establish that the accused 

believes and admits he or she is guilty of the offense and that the factual 

circumstances admitted by the accused objectively support the guilty plea. United 

States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996); United States v. Davenport, 

9 M.J. 364, 367 (C.M.A. 1980); UCMJ art. 45(a); R.C.M. 910(e). “If an accused 

sets up matter inconsistent with the plea at any time during the proceeding, the 

military judge must either resolve the apparent inconsistency or reject the plea.” 

United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (quoting United States v. 

Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)) (internal quotation marks omitted); see 

also UCMJ art. 45(a). “A military judge abuses his discretion if he neglects or 

chooses not to resolve an inconsistency or reject the inconsistent or irregular 

pleading.” United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013)(quoting 

United States v. Hayes, 70 M.J. 454, 457-58 (C.A.A.F. 2012)). The military judge 

need only reject the plea when the accused “persists in his statements” that cause the 

inconsistency. United States v. Thompson, 21 U.S.C.M.A. 526, 527, 45 C.M.R. 300, 

301 (1972). Where the possibility of a defense exists, a military judge should secure 

satisfactory disclaimers by the accused of this defense. Prater, 32 M.J. at 436 

(citing United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976)). 

“In determining on appeal whether there is a substantial inconsistency, this 

[c]ourt considers the ‘full context’ of the plea inquiry, including [a]ppellant’s 

stipulation of fact.” Goodman, 70 M.J. at 399 (quoting United States v. Smauley, 42 

M.J. 449, 452 (C.A.A.F. 1995)). “This court must find a ‘substantial conflict 

between the plea and the accused’s statements or other evidence’ in order to set 

aside a guilty plea. The ‘mere possibility’ of a conflict is not sufficient.” Hines, 73 

M.J. at 124 (quoting United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012)).

 After thoroughly reviewing the record, we hold that the military judge 

properly, and repeatedly, asked appellant, if anyone authorized her to leave during 

the period of her desertion. While appellant raised the possibility of a defense, she 

did not persist in this statement; instead she disclaimed having authorization to be 

absent. During the colloquy, appellant indicated four times that no one in a position 

of authority authorized her to leave during the period of her desertion. The first 
HERCULES—ARMY 20150197 

5

time the military judge asked her why she left, she very clearly indicated she 

“decided” to leave. Recognizing appellant’s next statement “I was told to leave,” 

the military judge immediately addressed the potentially inconsistent statement by 

asking appellant if anyone in her unit authorized her to leave, which she answered in 

the negative three more times during the rest of the colloquy. We conclude 

appellant did not set up a matter inconsistent with her plea that would give rise to a 

substantial basis in law or fact to question her plea. Having examined the “full 

context” of the plea inquiry, to include appellant’s responses during the entire 

colloquy, and the stipulation of fact, and appellant’s sentencing case, we hold the 

military judge reconciled any possible substantial inconsistency presented by 

appellant’s comment that she was told to leave. See Goodman, 70 M.J. at 399; 

UCMJ art. 45(a). Any inconsistency in the inquiry was not “substantial,” and was 

adequately resolved by appellant’s subsequent statements that no one gave her 

authority to leave. 

As the appellant has shown no substantial basis in law or fact to question her 

pleas of guilty, we conclude that the military judge did not abuse her discretion in 

accepting appellant’s plea. See Inabinette, 66 M.J. at 322. 

CONCLUSION 

The findings of guilty are AFFIRMED. After considering the entire record, 

the court AFFIRMS only so much of the sentence as provides for a bad-conduct 

discharge and 150 days of confinement. To the extent appellant has not already 

received this credit, appellant will be credited with seventy days of confinement 

credit. All rights, privileges, and property, of which appellant has been deprived by 

virtue of that portion of the sentence set aside by this decision are ordered restored. 

See UCMJ arts. 58b(c) and 75(a). 

Judge HERRING concurs. 

PENLAND, Judge, dissenting: 

 Appellant asserts a substantial basis in law and fact exists to question the 

providence of her guilty plea with respect to whether her absence was without proper 

authority. I agree, considering appellant’s statement to the military judge, “I was 

told to leave.” 

 Appellant was convicted of desertion, which began 19 January 2012 and 

ended with her apprehension on 1 January 2015. After correctly advising appellant 

of the elements of the crime, the military judge initiated the following exchange: 
HERCULES—ARMY 20150197 

6

MJ: At this time I want you to tell me why you’re guilty 

of the offense listed in the specification--tell me what 

happened. 

ACC: [Inaudible]. 

MJ: Private Hercules, if you will speak up a little bit. So 

you said you -- when you left Fort Gordon, when was that? 

ACC: On January 19th, 2012. 

MJ: And what unit were you assigned to on that day? 

ACC: Alpha Company, 67th ESB. 

MJ: How long had you been in the military? 

ACC: [Inaudible]. 

MJ: So were you on active duty on the 19th January of 

2012? 

ACC: Yes, Your Honor. 

MJ: Where did you do your basic training? 

ACC: Fort Jackson. 

MJ: And were you on your AIT training in January of 2012, 

or had you completed AIT? 

ACC: I had completed AIT. 

MJ: So your first -- your basic training was at Fort Jackson 

and then where did you go right after that? 

ACC: Fort Gordon. 

MJ: Okay. What is your MOS? 

ACC: 25 Quebec. 

MJ: Which is what? 
HERCULES—ARMY 20150197 

7

ACC: Multichannel Transmission Systems OperatorMaintainer. 

MJ: What made you decide to leave your unit on the 19th 

of January 2012? 

ACC: I had had a meeting with my first sergeant and 

captain and we were talking about how I wasn’t getting 

paid and I was getting evicted from my place and they 

laughed and told me if I needed money that I should work, 

so I decided to leave and . . . 

MJ: So you had a meeting with your first sergeant and the 

company commander? 

ACC: Yes, Your Honor. 

MJ: And you were saying you hadn’t gotten paid. Why had 

you not gotten paid? 

ACC: I believe it was because I had too many Article 15s. 

MJ: Okay, so you -- from looking over the Article 15 it 

looks like you had -- this was the Field Grade Article 15 

from 27 July 2011? 

ACC: I had two. 

MJ: So you weren’t getting paid? 

ACC: No, Your Honor. 

MJ: Then what happened; you got evicted you said -- you 

were living off post? 

ACC: Yes, Your Honor. 

MJ: Did you ask for the meeting in the open door policy or 

did they call you in? 

ACC: No, Your Honor, they called me in. 

MJ: And why did they call you in? 
HERCULES—ARMY 20150197 

8

ACC: I believe it was proper procedure because I had just 

gotten discharged from Eisenhower. 

DC: Your Honor, if I may have one moment. 

MJ: Yes. 

[Defense counsel conferred with the accused.] 

MJ: Private Hercules, from looking at the Stipulation of 

Fact it looks like you had gone AWOL -- you had left your 

unit back in 9 September 2011. 

ACC: Yes, Your Honor. 

MJ: So was the meeting with the first sergeant after you 

came back from that period of time of being AWOL? 

ACC: Yes, Your Honor. 

MJ: When was that meeting? 

ACC: [Inaudible]. 

MJ: In January? 

ACC: Yes, Your Honor. 

MJ: And what made you leave? 

ACC: I was told to leave. 

MJ: Did anyone in your unit give you authority to be absent 

from the military? 

ACC: No, Your Honor. 

MJ: Where did you go? 

ACC: To Columbia, South Carolina. 

MJ: So you went to Columbia and -- did you ever make any 

attempt to return back to your unit at Fort Gordon? 
HERCULES—ARMY 20150197 

9

ACC: No, Your Honor. 

MJ: So you were in Columbia for the entire time? 

ACC: Yes, Your Honor. 

MJ: Up until 1 January -- or about 1 January 2015, so 

almost three years you were in Columbia? 

ACC: Yes, Your Honor. 

MJ: Did you ever return -- did you go try to return to your 

unit at any of that time -- during that three year period? 

ACC: No, Your Honor. 

MJ: And what were you doing in Columbia? Where were 

you working? 

ACC: At an apartment complex as a maintenance tech. 

MJ: So when you left when did you decide that you -- you 

stated you wanted to stay away permanently from your unit? 

ACC: Yes, Your Honor. 

MJ: When did you decide that? 

ACC: When I found a job. 

MJ: How long did it take you to find a job? 

ACC: Three months. 

MJ: So up until that time you weren’t sure if you were 

going to go back or not to your unit? 

ACC: I had not planned to. 

MJ: When you left did you take everything with you? 

ACC: I didn’t have anything... 

MJ: So there was really nothing to take? 
HERCULES—ARMY 20150197 

10

ACC: No, Your Honor. 

MJ: Did you take your uniforms or did you leave those 

behind? 

ACC: They had already collected all of my military 

uniforms. 

MJ: Before you left? 

ACC: Yes. 

MJ: And why did they do that? 

ACC: It was because I had a lot of FTRs and they didn’t 

want me to have to pay for it. 

MJ: They didn’t want you to have to pay for it? 

ACC: My CIF. 

MJ: Okay, so they had taken your CIF? 

ACC: Yes, Your Honor. 

MJ: But did you have uniforms? 

ACC: Yes, Your Honor. 

MJ: So you had uniforms but your CIF issued equipment 

they had already taken away from you? 

ACC: Yes, Your Honor. 

MJ: And were you living off post at that time? 

ACC: Yes, Your Honor. 

MJ: And you -- who did you report to directly when you 

were at your unit at Fort Gordon in 2012 in January? 

ACC: I reported to Captain [W] and First Sergeant [S]. 
HERCULES—ARMY 20150197 

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MJ: First Sergeant who? 

ACC: [S]. 

MJ: And Captain ---- 

ACC: [W]. 

MJ: [W]. Did either First Sergeant [S] or Captain [W] 

give you authority to be absent from the unit at anytime? 

ACC: No, Your Honor. 

MJ: Did anyone else in the unit give you authority to have 

leave? 

ACC: No, Your Honor.3

(emphasis added.). 

I fully agree with my colleagues’ description of the legal principles involved. 

See also United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006). However, I 

respectfully disagree with their analysis and conclusion. 

The military judge asked appellant five questions bearing on whether her 

absence was authorized.4 The first was open-ended and prompted appellant to say, 

inter alia, “I decided to leave and. . .” The military judge interjected and clarified 

appellant was referring to a meeting with her company commander and first 

sergeant. After ascertaining the meeting’s circumstances, the military judge asked 

followed up with a second open-ended question, “[W]hat made you leave?” 

Appellant said, “I was told to leave.” The remaining three questions regarding any 

authority for appellant’s absence were certainly not inappropriate, but they were 

pointed and, depending on one’s view, leading. Appellant did not reconcile the 

inconsistency between her answers, and the military judge did not ask her to do so. 

 

3

 A stipulation of fact included the following: “On or about 19 January 2012, the 

accused again departed her unit without authority from a person who could give her 

such authority. At the time the accused departed Fort Gordon, she knew she did not 

have permission to depart Fort Gordon and remain away.” 

4

 None of the five questions or appellant’s answers precisely referred to the time 

period charged in this case; however, it seems reasonable to conclude the military 

judge and appellant intended to refer thereto. 
HERCULES—ARMY 20150197 

12

Appellant indeed inculpated herself multiple times during the providence 

inquiry—not counting the admissions contained in the stipulation of fact—but she 

also plainly exculpated herself once. Military judges correctly and regularly instruct 

members that the number of witnesses called should not be the guide in evaluating 

testimony. This case illustrates a corollary—the number of times appellant 

inculpated herself cannot per se override the single time she indicated she was told 

to leave her unit.5

Appellant’s exculpation may have been false, misspoken, or the result of 

confusion. And to be sure, it was controverted by her three brief answers to the 

contrary. Nonetheless, it was inconsistent with her plea of guilty and, in my view, 

created a substantial basis in law and fact, which the military judge did not resolve, 

to question appellant’s providence. 

 Military trial judges frequently confront difficult providence inquiries. I do 

not regard that task lightly, particularly where, as here, an accused soldier6

 and 

counsel for both sides do less than required to facilitate a legally adequate exchange. 

While recognizing that challenge and the seriousness of the charged misconduct, I 

respectfully dissent. 

FOR THE COURT: 

 MALCOLM H. SQUIRES JR. 

Clerk of Court 

 

5

 Under the circumstances here, the sequence of appellant’s conflicting statements 

does not seem probative; I cannot discount appellant’s exculpatory answer only 

because it was not her last. 

6

 Appellant was diagnosed with multiple behavioral health illnesses, and they played 

a significant role in her misconduct. A sanity board found her mentally responsible 

and competent to stand trial; appellant specifically disclaimed mental responsibility 

and competency issues in the stipulation of fact; and, the military judge reasonably 

concluded that no mental responsibility or capacity issues were raised. I do not 

quarrel with these determinations, but I do harbor concern that appellant’s medical 

condition may have contributed to her inconsistent statements to the military judge. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: