UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

 HAIGHT, PENLAND, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class KYLE A. PICCIRILLO 

United States Army, Appellant 

ARMY 20140897 

Headquarters, 7th Infantry Division 

Jeffery D. Lippert, Military Judge 

Colonel Robert F. Resnick, Staff Judge Advocate 

For Appellant: Captain Heather L. Tregle, JA (argued); Major Aaron R. Inkenbrandt, 

JA; Captain Heather L. Tregle, JA (on brief); Colonel Mary J. Bradley, JA; Captain 

Heather L. Tregle, JA (on brief on specified issue). 

For Appellee: Captain Robyn M. Chatwood, JA (argued); Colonel Mark H. 

Sydenham, JA; Major John K. Choike, JA; Captain Robyn M. Chatwood, JA (on 

brief); Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain Robyn 

M. Chatwood, JA (on brief on specified issue).

29 January 2016 

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

SUMMARY DISPOSITION 

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

PENLAND, Judge: 

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

consistent with his pleas, of three specifications of conspiracy, larceny, simple 

arson, and receiving stolen property, in violation of Articles 81, 121, 126, and 134, 

Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 926, and 934 (2012) 

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

discharge, confinement for 350 days, and reduction to the grade of E-1. The 

convening authority approved only 300 days of the confinement term and the 

remainder of the adjudged sentence. 

We review appellant’s case pursuant to Article 66, UCMJ. We have considered 

matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 
PICCIRILLO—ARMY 20140897 

2

431 (C.M.A. 1982); they lack merit. Appellant assigns one error which warrants 

discussion but no relief. We specified an additional issue for briefing and argument 

and, finding it constitutes legal error, grant relief in our decretal paragraph. 

1. Terminal Element of Receiving Stolen Military Property 

Appellant pleaded guilty to and was convicted of, inter alia, receiving stolen 

property,1 “such conduct being to the prejudice of good order and discipline in the 

armed forces.” The providence inquiry on the terminal element follows: 

MJ: Can you tell me why you believe your involvement in 

receiving the property, along with Sergeant Serini, from 

Specialist Scott, is prejudicial to good order and 

discipline. 

ACC: Because we cannot have Soldiers . . . stealing 

things in the military, Your Honor. 

MJ: Why not? 

ACC: It’s part of the Army values, Your Honor, Integrity. 

It’s as simple as that. 

MJ: It goes to discipline, correct? 

ACC: Yes, Your Honor. 

MJ: The Army provides that stuff for you and for all the 

other people in your unit to use as part of your training 

and preparations for winning our nation’s wars, correct? 

ACC: Yes, Your Honor. 

MJ: And if you convert it to your own use, or someone 

steals it and then gives it to you, what does that do to 

discipline? 

ACC: It ruins it, Your Honor. 

In his assigned error, appellant contends “the military judge failed to elicit a 

factual basis to support that [appellant’s] conduct was prejudicial to good order and 

 

1

 The items were advanced military thermal imaging devices, worth approximately 

$10,000 each. 
PICCIRILLO—ARMY 20140897 

3

discipline . . . .” We review a military judge’s decision to accept a guilty plea for an 

abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) 

(citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). A guilty plea 

will only be set aside if we find 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)). We 

apply 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); Rule for Courts-Martial 

910(e). 

Appellant relies on United States v. Caldwell, 72 M.J. 137, 140-42 (C.A.A.F. 

2013) and United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006) (“Conduct 

that is prejudicial to good order and discipline is ‘conduct that causes a reasonably 

direct and palpable injury to good order and discipline.’”). Those cases recite the 

correct legal standard, but their facts are significantly different from those before us 

now. Appellant admitted that he knew he was receiving advanced tactical optics 

from a fellow soldier who stole them from another company in his battalion, and that 

their purpose was for use in combat. We find no substantial basis to question 

appellant’s providency to committing conduct prejudicial to good order and 

discipline. See also United States v. Nance, 67 M.J. 362 (C.A.A.F. 2009). 

2. Aiding and Abetting Simple Arson 

Appellant was also convicted of, inter alia, conspiring with Specialist (SPC) 

KD to commit simple arson2

 and the actual commission of that offense. By way of 

background, SPC KD was a fellow soldier who owned a car which had broken down. 

To avoid paying for repairs or the car itself, SPC KD hatched a plan to burn it and 

file a claim against his insurance policy. He asked appellant for help, which 

appellant rendered by purchasing lighter fluid and helping tow the car to a location 

which they assessed as suitable to the purpose. During the providence inquiry, 

appellant testified that SPC KD sprayed lighter fluid into the car, let it soak in, and 

then ignited it with a piece of paper he grabbed from the backseat of appellant’s 

vehicle and lit a flame. 

 

2

 The elements of simple arson are as follows: 

(a) That the accused burned or set fire to certain property of another; 

 

(b) That the property was of a certain value; and 

(c) That the act was willful and malicious. 

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 52.b.(2).
PICCIRILLO—ARMY 20140897 

4

The military judge briefly discussed criminal liability concepts found in 

Article 77, UCMJ (Principals), and appellant admitted, “I aided and abetted [SPC 

KD], Your Honor.” However, neither the military judge nor the parties tackled the 

fundamental legal problem with appellant’s culpability for simple arson: appellant 

helped SPC KD burn his own car. We find, as a matter of law, that appellant cannot 

be guilty of simple arson or conspiracy to commit that offense under these facts. “If 

the owner in possession is not guilty of arson in burning his own property, then one 

who assists the owner in burning it or who burns it at the owner’s request is not 

guilty of arson, for the agent’s guilt can only be coextensive with that of the 

principal.” United States v. Banta, 26 M.J. 109, 113 (C.M.A. 1988) (Everett, C.J. 

concurring) (quoting 5 Am. Jur. 2d Arson § 23 (1962)). 

The government argues that the majority opinion in Banta controls the result 

here. We disagree. The Banta majority focused not on the elemental question of 

whether petitioner burned the property “of another,” but instead, if he did so 

maliciously—a completely different element under Article 126. Banta, 26 M.J. at 

112. 

CONCLUSION 

The findings of guilty of Specification 3 of Charge I, and the Specification of 

Charge III and Charge III are set aside and DISMISSED. The remaining findings of 

guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08 

(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 

2013), we are confident the military judge would have adjudged at least as severe a 

sentence as that which the convening authority ultimately approved. The approved 

sentence is AFFIRMED. All rights, privileges, and property, of which appellant has 

been deprived by virtue of those findings set aside and dismissed by this decision 

are ordered restored. 

Senior Judge HAIGHT and Judge WOLFE concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: