## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Private E-1 JARED S. GAMBLE

United States Army, Appellant

ARMY 20160735

Headquarters, 7th In fantry Division

Lanny J. Acosta , Military Judge Colonel, Russell N. Parsons, St aff Judge Advoca te (pretrial)

Lieutenant Colonel James W. Nelso n, Staff Judge Advo cate (post trial)

For Appellant: Li eutenant Colonel Christopher D. Carrier, JA; Major Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Virginia H. Ti nsley, JA (on brief).

30 October 2017

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

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SALUSSOLIA, Judge:

In this case we hold a gu ilty plea to a specification of “divers occasions” does

not have a substantial basis in fact and law where the m ilitary judge di d not define the word “divers,” advise that it was a part of the specifi cation and establish appellant committed the offense on more than one occasion.

A military judge sitting as a general court-martial convicted appellant pursuant to hi s pleas of failure to repair (thr ee specifications ), assaulting a noncommissioned officer, disr especting a noncommissione d officer, disobeying a noncommissioned officer (two specifications), violating a lawful general order, breaking arrest, resisting a pprehension, wrongf ul possession of heroin with the

intent to distribute , wrongful possession of metham phetamine with the intent to distribute, wrongful use of heroin, wrongful use of dextroamphetimine and methamphetamine, and assault consummated by battery, in violation of Articles 86,GAMBLE — ARMY 20160735

2 91, 92, 95, 112a, and 128, Uniform Code of Military Justice [h ereinafter UCMJ], 10 U.S.C. §§ 886, 891, 892, 895, 912a, 128 (2012). Th e military judge sentenced appellant to a bad-conduct di scharge and confinem ent for eighteen months. Pursuant to a pretrial agreement, the convening au thority approv ed only so much of the sentence as provided for a bad-conduct discharge and conf inement for five months. The convening authority credit ed appellant with 65 days of pretrial confinement.

This case is before the court for review under Article 66, UC MJ. Appellant raises one assignment of error that merits discussion and relief. We have also reviewed the matters personally ra ised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), and they are without merit.

We review a military judge’s decision to accept a plea of gu ilty “for an abuse of discretion and questions of law arising from the gu ilty plea de novo.” United

States v. Inabinette

, 66 M.J. 320, 322 (C.A.A.F. 2 008). The military judge is charged with determining whet her there is an adequate basis in law and fact to support the plea before accepting it. Id. at 321–22, (citing United States v. Prater

, 32 M.J. 433, 436 (C .M.A. 1991)). We review a military judg e’s decision to accept a guilty plea for an abuse of di scretion by determining whether the record as a whole

demonstrates a substa ntial basis in law an d fact for questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-M artial [hereinafter R.C.M.] 910(e).

Appellant pleaded guilty to and was co nvicted of, inter alia , the Specification of the Additional Charge, which alleged: “I n that [appellant], U. S. Army, did, at or

near Joint Base Lewis-McChord Washi ngton, on divers occasi ons, between on or about 30 August 2016 an d on or about 12 Septem ber 2016, wron gfully use [d]extroamphetimine and [m]e thamphetamine, Schedule II controlled substances.” During the providence inquir y, the military judge failed to advise appellant that

“divers occasions” was a part of the sp ecification and failed to define the words. Moreover, the military judg e did not establish appella nt wrongfully used the

controlled substances on “divers occasions.”

Rather, appellant admitted he used dextroamphetimine and methamphetamine on a single occasi on. Appellant explained in deta il the location and methodology used to wrongfully ingest these controlled substances on 5 September 2016. Accordingly, we find a substan tial basis in fa ct to question appellant’s plea toGAMBLE — ARMY 20160735

3 “divers occasions” in the Speci fication of the Additional Charge and will grant relief in our decretal paragraph. *

CONCLUSION

We affirm only so much of the Specif ication of the Additional Charge as provides:

In that [appellant], U.S. Army did, at or near Joint Base Lewis-McChord, Washington, on or about 5 September 2016, wrongfully use dextroamphe timine and methamphetamine, Schedule II controlled substances.

The remaining findings of guilty are AFFIRMED. Re assessing the sentence

on the basis of the error no ted, the entire record, and the factors set forth in United

States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and the principles of

United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986), we are confident the military judge would have im posed a sentence of at leas t that which was adjudged. Accordingly, we AFFIRM the sentence.

Senior Judge CAMPANELLA and Judge FLEMING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

* Although appellant admits in his stipul ation of fact to us ing dextroamphetimine and methamphetamine on “divers occasion s” during the peri od covered by the Specification of the Addition al Charge, the military judg e did not inquire, nor did the appellant discuss, these incidents occurring on “diver s occasions.” MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: