UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist ROBERTO FLORES 

United States Army, Appellant 

ARMY 20160252 

Headquarters, 1st Cavalry Division (Rear)(Provisional) 

Bernie C. Laforteza, Military Judge 

Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial) 

Colonel Oren H. McKnelly, Staff Judge Advocate (recommendation)

Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (addendum) 

For Appellant: Colonel Mary J. Bradley, JA; Captain Katherine L. DePaul, JA; 

Captain Bryan A. Osterhage, JA (on brief); Lieutenant Colonel Tiffany M. Chapman, 

JA; Major Todd W. Simpson, JA; Captain Bryan A. Osterhage, JA (on reply brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick, 

JA; Captain Joshua B. Banister, JA (on brief). 

29 January 2018 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge: 

 

In this case, we dismiss a specification of desertion, affirm a finding of guilty 

to the lesser-included offense of absence without leave (AWOL) as to a different 

desertion specification, and grant relief for delay in post-trial processing. See 

United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). 

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

pursuant to his pleas, of two specifications of desertion in violation of Article 85 of 

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

judge sentenced appellant to a bad-conduct discharge and confinement for nine 

months. The convening authority approved only so much of the adjudged sentence 

as provided for a bad-conduct discharge and confinement for 120 days, pursuant to a 

pretrial agreement. 
FLORES—ARMY 20160252 

2 

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

initially asserted three assigned errors, one of which challenged the commander’s 

authority to take action on appellant’s court-martial. Appellant now agrees this 

assignment of error is moot because this court granted the government motions to 

attach appellate exhibits that established the commander’s authority. We address the 

remaining two assignments of error, which merit discussion and relief. We have 

also considered the matter personally raised by appellant pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) and find it to be without merit. 

Providence of Guilty Plea 

 Appellant argues the military judge abused his discretion in accepting 

appellant’s plea of guilty because he did not resolve inconsistencies about: 1) the 

unit from which appellant deserted with respect to Specifications 1 and 2 of The 

Charge; and 2) “a factual interruption in [appellant’s] period of absence” with 

respect to Specification 1 of The Charge. 

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

discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will not be

set aside unless we find a substantial basis in law or fact to question the plea. 

Inabinette, 66 M.J. at 322. 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 United States v. Weeks, 71 

M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to 

accept a guilty plea without an adequate factual basis to support it . . . [or] if the 

ruling is based on an erroneous view of the law.”). 

Appellant’s Unit of Assignment 

Initially, appellant was charged with two specifications of deserting his unit: 

“Headquarters and Headquarters Troop [HHT], 3d Squadron, 3d Cavalry Regiment, 

III Corps/1st Cavalry Division.” Prior to arraignment, appellant’s unit was amended 

in both specifications. Specification 1 was amended to “[HHT], 3d Squadron, 3d 

Armored Cavalry Regiment, III Corps.”1

 Specification 2 was amended to “[HHT], 

3d Squadron, 3d Cavalry Regiment, 1st Cavalry Division.” 

At trial, the military judge and the parties did not clarify which particular unit 

organization or identification code (UIC) was applicable to Specification 1 or 2. 

This failure now gives rise to the current appellate controversy. At issue is the unit 

 

1

 During his review of the stipulation of fact, appellant noted a discrepancy and 

proactively advised the military judge that the unit listed in Specification 1 “should 

read ‘III Corps,’ not ‘1st CAV Division.’” 
FLORES—ARMY 20160252 

3 

from which appellant was charged with deserting in Specifications 1 and 2, and, 

depending on that determination, whether appellant was assigned to that unit, and 

did he plead guilty to deserting that charged unit during the providence inquiry. 

 

On appeal, appellant asserts Specifications 1 and 2 were charged as the same 

unit defined as “030003ARHHT” (UIC “WG2NT0”) and he only admitted to 

deserting a different unit defined as “030003ARSQ REAR (UIC: “WG2NTD”). 

After a thorough review of the entire record, to include the stipulation of fact, 

appellant’s admitted enlisted record brief (ERB), and his providence inquiry 

responses, the court finds appellant was charged with two separate units in 

Specifications 1 and 2.2

 

 

Appellant’s ERB documents his unit organization as “030003ARSQ REAR” 

(“WG2NTD”) from 9 November 2010 to 2 March 2014. Specification 1, which was 

charged from on or about 10 December 2010 to 15 February 2014, spans this entire 

timeframe. Appellant agreed in the stipulation of fact, as to Specification 1, that 

“[t]he rear-detachment unit was the HHT.”3 In his discussion with the military judge 

regarding Specification 1, appellant clearly stated, several times, he was assigned to 

the rear detachment and he “immediately” intended to remain away from his unit 

permanently. Appellant admits he deserted from “[HHT], 3d Squadron, 3d Armored 

Cavalry Regiment, III Corps,” the unit charged in Specification 1. The court finds 

the stipulation of fact, appellant’s providence inquiry responses, and his ERB all 

support a conclusion that the unit charged, and to which appellant plead guilty to 

deserting in Specification 1, was “030003ARSQ REAR” (UIC: “WG2NTD”). 

Appellant also asserts the failure to include the language “Rear Detachment” 

in the unit description in Specification 1 created a fatal variance. Whether deemed a 

mere omission or a variance, this failure was not fatal because appellant was not 

mislead or prejudiced by the lack of this language. Appellant clearly understood and 

agreed the unit he deserted was the “rear detachment” and that was “HHT, 3d 

Squadron, 3d Armored Cavalry Regiment, III Corps.”4

 

 

2

 The two different unit organizations and UIC codes listed in appellant’s ERB, when 

combined with the parties’ agreed-upon amendments to the units in both 

specifications, undermine appellant’s assertion that the two specifications were 

charged as the same unit. 

 

3

 The stipulation of fact did not establish that HHT and the rear-detachment were the 

same unit for Specification 2. 

4

 Even if the omission could be deemed a variance it was not material and did not 

(continued . . .) 
FLORES—ARMY 20160252 

4 

There is, however, a substantial basis in fact to question appellant’s plea to 

Specification 2. On or about 16 February 2014, appellant returned to military 

control. On 3 March 2014, during appellant’s return, his ERB reflects his 

reassignment to “030003ARHHT” (“WG2NT0), which makes no reference to a “rear 

detachment.” Approximately two weeks after his reassignment, appellant again left 

military control. This departure is the genesis of Specification 2 encompassing the 

dates from on or about 18 March 2014 to on or about 17 January 2016. 

As to Specification 2, the stipulation of fact and appellant’s providence 

inquiry responses are ambiguous as to whether appellant was pleading guilty to 

deserting his newly reassigned unit, “030003ARHHT” (UIC “WG2NT0”), or his old 

unit, “030003ARSQ REAR (UIC: “WG2NTD”). As accurately recognized in 

appellant’s brief, “[t]he [providence] colloquy for both specifications revolved 

around the ‘rear detachment’” unit. (Appellant Br. at 5). When questioned by the 

military judge as to his unit in Specification 2, appellant replied “I believed that it 

was the same unit that I was attached to when I went AWOL.” A review of the 

context of the ongoing discussion with the military judge indicates this statement 

appears to reference the unit from Specification 1 and appellant’s first departure 

from the Army in December 2010. After a thorough review of the record, we hold 

that there is a substantial basis to question the factual basis of appellant’s plea to 

Specification 2 because it appears appellant only agreed to departing his “rear 

detachment” unit (“030003ARSQ REAR” (“WG2NTD”)) when his ERB reflects his 

assignment to a different unit “030003ARHHT” (UIC “WG2NT0”) during the entire 

time period charged in Specification 2. 

While the government requests this court accept appellant’s pleas by finding 

the existence of an organic relationship between “030003ARHHT” (UIC 

“WG2NT0”) and “030003ARSQ REAR (UIC: “WG2NTD”), such relationship is not 

established on the record. Ratifying the existence of such relationship, particularly 

in light of the divergence in the higher parent echelons of the alleged units, III 

Corps (Specification 1), and 1st Cavalry Division (Specification 2), is not justified. 

 

 

(. . . continued) 

prejudice the appellant. See United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014); 

United States v. Toth, ARMY 200811, 2009 CCA LEXIS 440 at *8 (Army Ct. Crim. 

App. 30 Oct. 2009) (stating “[u]nder some circumstances, a variance in the unit or 

organization charged may not be fatal.”). In this case, the inclusion of the language 

“Rear Detachment” would not substantially change the nature of the offense or 

increase the seriousness or potential punishment of the offense. Appellant is not 

prejudiced by this lack of language because he is not at risk of prosecution for the 

same conduct and he was not misled as to the unit or denied the opportunity to 

defend against the specification. 
FLORES—ARMY 20160252 

5 

Factual Interruption in Specification 1 

The military judge and the parties failed to recognize or address 

inconsistencies raised in the stipulation of fact and on the record to appellant 

pleading guilty to desertion from on or about 10 December 2010 to on or about 15 

February 2014 in Specification 1. Appellant was arrested and held in confinement 

pursuant to his “military misconduct” from 14 January 2011 to 21 January 2011. 

(Pros. Ex. 1 at 4). This eight-day confinement was a factual interruption in 

appellant’s continuous desertion. The inconsistency is further exacerbated by 

appellant’s statement that he formed the intent “immediately” to remain away 

permanently from his unit. Appellant’s similar intent was not established after 22 

January 2011 as required to support a desertion specification after 22 January 2011. 

Based on these issues, after omitting the eight days of appellant’s confinement, this 

court will only affirm a finding of guilty to the lesser-included offense of AWOL 

under Article 86, UCMJ. 

The Manual for Courts-Martial, United States [MCM] authorizes the court to 

divide one longer period of absence in an AWOL specification into two or more 

separate, shorter AWOLs under that same single specification. MCM, part IV, ¶ 

10.c.(11)5

. See United States v. Scott, 59 M.J. 718 (Army Ct. Crim. App. 2004). To 

resolve the issue raised by appellant, we will modify Specification 1 to account for 

the termination date of 13 January 2011. We will indicate a second absence in 

Specification 1, beginning 22 January 2011, when appellant left confinement, to the 

end-date originally charged. 

Post-Trial Delay 

Appellant complains he suffered an undue, post-trial delay because 235 days 

elapsed between his court-martial and the convening authority’s action, less five 

additional days requested by defense counsel to submit appellant’s clemency matters 

pursuant to Rule for Courts-Martial 1105. While we find no due process violation 

under Barker v. Wingo, 407 U.S. 514 (1972), we also find no reasonable explanation 

for the delay and processing errors in this case and accordingly provide relief in our 

decretal paragraph. See Collazo, 53 M.J. at 727. 

 

5

 The MCM states “[a]n accused may properly be found guilty of two or more 

separate unauthorized absences under one specification, provided that each absence 

is included within the period alleged in the specification and provided that the 

accused was not misled. If an accused is found guilty of two or more unauthorized 

absences under a single specification, the maximum authorized punishment shall not 

exceed that authorized if the accused had been found guilty as charged in the 

specification.” MCM, part IV, ¶ 10.c.(11). 
FLORES—ARMY 20160252 

6 

Sentence Reassessment 

We are able to reassess the sentence in this case, and do so after a thorough 

analysis and in accordance with the principles articulated by our superior court 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, 307-08 (C.M.A. 1986). A Court of Criminal Appeals must 

“assure that the sentence is appropriate in relation to the affirmed findings of guilty, 

[and] that the sentence is no greater than that which would have been imposed if the 

prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United 

States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “If the court can determine to its 

satisfaction that, absent any error, the sentence adjudged would have been of at least 

a certain severity, then a sentence of that severity or less will be free of the 

prejudicial effects of error. . . .” Sales, 22 M.J. at 308. 

Affirming a conviction for two periods of AWOL in Specification 1 and 

dismissing Specification 2 reduces appellant’s exposure from ten years of 

confinement to eighteen months of confinement. This change in the maximum 

sentence, however, is inconsequential in this case because, as a special courtmartial, the sentence was already capped at twelve months of confinement. Despite 

the dismissal of Specification 2, appellant stipulated that he absented himself from 

the Army for over forty-nine months, which is clearly aggravating evidence.6

 

Appellant remains convicted of AWOL, a type of offense with which this court has 

experience and familiarity, and can reliably determine what sentence would have 

been imposed at trial. We are confident that based on the entire record and 

appellant’s conduct, the military judge sitting alone as a special court-martial, would 

have imposed a sentence of at least a bad-conduct discharge and confinement for 120 

days. 

CONCLUSION 

The court affirms only so much of the finding of guilty of Specification 1 as 

finds that: 

appellant did, on or about 10 December 2010, without 

authority, absent himself from his unit, to wit: 

Headquarters and Headquarters Troop, 3d Squadron, 3d 

Armored Cavalry Regiment, III Corps, located at Fort 

Hood, Texas, and did remain so absent until he was 

apprehended on or about 13 January 2011; and that 

 

6

 The stipulation of fact between the government and appellant agrees “for the 

purposes of this or any subsequent appeal, re-hearing, or re-trial—that the facts 

contained in [the] stipulation are true and are admissible [in evidence].” (Pros. Ex. 

1 at 1). 
FLORES—ARMY 20160252 

7 

appellant did, on or about 22 January 2011, without 

authority, absent himself from his unit, to wit: 

Headquarters and Headquarters Troop, 3d Squadron, 3d 

Armored Cavalry Regiment, III Corps, located at Fort 

Hood, Texas, and did remain so absent until he was 

apprehended on or about 15 February 2014, in violation of 

Article 86, UCMJ. 

The finding of guilty as to Specification 2 is set aside and that specification is 

DISMISSED. After considering the entire record and the post-trial delay, the court 

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

confinement for ninety days. All rights, privileges, and property, of which appellant 

has been deprived by virtue of that portion of the findings and sentence set aside by 

this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

 Senior Judge CAMPANELLA and Judge SALUSSOLIA concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: