UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JOSH HARRIS 

United States Army, Appellant 

ARMY 20120922 

Headquarters, III Corps and Fort Hood (pretrial) 

Headquarters, Fort Hood (post-trial) 

Gregory A. Gross, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate (advice and recommendation) 

Colonel Richard W. Rousseau, Staff Judge Advocate (addendum) 

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr., 

JA; Major Vincent T. Shuler, JA; Major Jaired D. Stallard, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Steven J. Collins, JA; Captain Carling M. Dunham, JA (on brief). 

28 August 2014 

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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 one specification of conspiracy to commit robbery, two 

specifications of robbery, one specification of forcible sodomy, one specification of 

assault, and one specification of kidnapping, in violation of Articles 81, 122, 125, 

and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 922, 925, 928, 934 

(2006). The military judge sentenced appellant to a dishonorable discharge, 

confinement for fifty-two years, forfeiture of all pay and allowances, and reduction 

to the grade of E-1. The convening authority approved nine years of confinement 

and the remainder of the sentence. 

 This case is before us for review pursuant to Article 66, UCMJ. Although not 

raised by the parties, we find that appellant improvidently entered a guilty plea to 
HARRIS—ARMY 20120922 

2

kidnapping in violation of Article 134, UCMJ, under a Clause 1 theory of liability. 

We affirm that conviction solely on the basis of service-discrediting conduct under 

Clause 2. Additionally, appellant, in his sole assignment of error, asks this court to 

provide appropriate relief to remedy the dilatory post-trial processing of his case. 1

 

We agree that relief is appropriate in this case and grant 30 days confinement credit. 

LAW AND DISCUSSION 

A. Appellant’s Guilty Plea to Kidnapping under a Clause 1 Theory of 

Liability.

“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). 

Appellant pleaded guilty, among other offenses, to kidnapping and “said 

conduct was to the prejudice of good order and discipline in the armed forces and 

was of a nature to bring discredit upon the armed forces,” a violation of Clauses 1 

and 2 of Article 134, UCMJ.2

 See Manual for Courts–Martial, United States (2008 

ed.) [hereinafter MCM], pt. IV, ¶¶ 60.c.(2), (3). As our superior court recently 

reiterated, “[t]he . . . clauses of Article 134 constitute ‘. . . 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)). It follows, then 

that “[v]iolation of one clause does not necessarily lead to a violation of the other . . 

. .” Id. More pertinent to the case before us, the court in Fosler went on to state 

that “disorders and neglects to the prejudice of good order and discipline” are not 

synonymous with “conduct of a nature to bring discredit upon the armed forces . . . 

.” Id. Thus, if a specification alleges both Clause 1 and 2, then there must be a 

substantial basis in fact in the record to support a finding of guilty as to both. 

Here, the military judge properly defined prejudicial to good order and 

discipline as “conduct which causes a reasonably direct and obvious injury to good 

order and discipline.” See also MCM, Part IV, ¶ 60.c.(2)(a). The stipulation of fact 

is silent as to how appellant’s conduct violated either Clause 1 or Clause 2. When 

 

1

 The matters personally submitted by appellant pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit. 

2

 This offense constituted Specification 1 of Charge VI. 
HARRIS—ARMY 20120922 

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asked why his conduct violated Clause 1, appellant answered, “Because I know what 

I did was wrong.” Immediately thereafter, the military judge replied, “I think 

probably here what would be most appropriate would be the ‘discredit upon the 

armed forces.’” When asked why his conduct was service-discrediting, appellant 

responded that it could “make people afraid of [s]oldiers . . .” and might hurt the 

reputation of the service. The military judge found appellant guilty of kidnapping 

under both Clause 1 and Clause 2 theories of liability. 

Given this providence inquiry and stipulation of fact, we find a substantial 

basis in fact to question the providence of appellant’s guilty plea to kidnapping 

under a Clause 1 theory of liability. Appellant’s statement “I know what I did was 

wrong” does not establish a reasonably direct and obvious injury to good order and 

discipline. On the other hand, the record establishes the providence of his guilty 

plea to kidnapping under a Clause 2 theory of liability, and we accordingly affirm 

his conviction on those grounds. 

B. Dilatory Post-Trial Processing 

The convening authority took action 380 days after the sentence was 

adjudged. The record in this case consists of one volume, and the trial transcript is 

113 pages. Although we find no due process violation in the post-trial processing of 

appellant’s case, we must still review the appropriateness of the sentence in light of 

the unjustified dilatory post-trial processing. UCMJ art. 66(c); United States v. 

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 

service courts are] required to determine what findings and sentence ‘should be 

approved,’ based on all the facts and circumstances reflected in the record, including 

the unexplained and unreasonable post-trial delay.”). See generally United States v. 

Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 

617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army 

Ct. Crim. App. 2000). It took 226 days to transcribe the record in this case. 

Appellant requested speedy post-trial processing, and the convening authority took 

action over six months later. Furthermore, it took nearly two months after action to 

mail the record to this court. While the government has explained the reasons for 

delay, we find that these reasons are unreasonable under the totality of 

circumstances. 

CONCLUSION 

Upon consideration of the entire record, including the matters submitted 

pursuant to Grostefon, we affirm only so much of Specification 1 of Charge VI as 

follows: 

In that [appellant], U.S. Army, did, at or near Killeen, 

Texas, between on or about 3 August 2012 and 4 August 
HARRIS—ARMY 20120922 

4

2012, willfully and wrongfully seize, confine, and hold 

Ms. [MM], a person not a minor, against her will, and that 

said conduct was of a nature to bring discredit upon the 

armed forces. 

The remaining findings of guilty are AFFIRMED. We are able to reassess the 

sentence on the basis of the amended findings, and do so after conducting a thorough 

analysis of the totality of circumstances presented by appellant’s case and in 

accordance with the principles articulated in United States v. Winckelmann, 73 M.J. 

11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 

In evaluating the Winckelmann factors, we first find no change in the penalty 

landscape or the gravamen of appellant’s criminal conduct. Second, appellant 

pleaded guilty in a judge-alone court-martial. Ultimately, we are convinced that the 

military judge would have adjudged the same sentence had he only convicted 

appellant of kidnapping under a Clause 2 theory of criminality. 

However, given the dilatory post-trial processing, we affirm only so much of 

the sentence as extends to a dishonorable discharge, confinement for eight years and 

eleven months, total forfeiture of all pay and allowances, and reduction to the grade 

of E-1. All rights, privileges, and property, of which appellant has been deprived by 

virtue of this decision setting aside portions of the findings and sentence are ordered 

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

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: