UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CELTNIEKS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class NICHOLAS DOHERTY 

United States Army, Appellant 

ARMY 20160390 

Headquarters, 2d Infantry Division/ROK-US Combined Division 

Tiernan P. Dolan, Military Judge 

Colonel Timothy P. Hayes, Jr., Staff Judge Advocate 

For Appellant: Major Andres Vazquez, Jr., JA; Captain Katherine L. DePaul, JA (on 

brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA (on brief). 

2 December 2016 

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SUMMARY DISPOSITION 

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Per Curium: 

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

pursuant to his pleas, of two specifications of sexual abuse of a child, one 

specification of indecent exposure, and one specification of possessing child 

pornography in violation of Articles 120b, 120c, and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 920b, 920c, and 934 (2012 & Supp. II 2015; 2012 & Supp. III 

2016) [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable 

discharge, confinement for eight years, and reduction to the grade of E-1. The 

convening authority approved the findings and only so much of the sentence as 

provided for a dishonorable discharge, confinement for sixty months, and reduction 

to the grade of E-1. 

Appellant’s case is before this court for review under Article 66, UCMJ. 

Appellant personally raises one matter pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982), that is without merit. 
DOHERTY— ARMY 20160390 

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BACKGROUND

Appellant was charged with and pleaded guilty to the Specification of 

Additional Charge IV, in violation of Article 134, UCMJ, as follows: 

[Appellant], U.S. Army, did, at or near Camp Humphreys, 

Republic of Korea, on or about 4 January 2016, knowingly 

and wrongfully possess child pornography, to wit: more 

than 10 digital images of minors, or what appears to be 

minors, engaging in sexually explicit conduct, and that 

said conduct was to the prejudice of good order and 

discipline in the armed forces and of a nature to bring 

discredit upon the armed forces. 

During the elements portion of the providence inquiry, the military judge only 

described Clause 2 of the terminal element of Article 134, UCMJ; he did not 

mention or define Clause 1, despite the fact both clauses were charged in the 

conjunctive. In the colloquy that followed, appellant discussed how his possession 

of child pornography was service discrediting without mentioning whether that 

conduct was prejudicial to good order and discipline, and there was no additional 

substantive inquiry between the military judge and appellant regarding Clause 1 

throughout the remainder of the trial. Moreover, the parties did not include any 

language pertaining to Clause 1 in the stipulation of fact supporting their pretrial 

agreement. 

LAW AND DISCUSSION

“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 to question the 

plea. Inabinette, 66 M.J. at 322. 

The providence inquiry does not adequately show how appellant’s conduct 

caused a “direct and palpable effect on good order and discipline.” United States v. 

Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005). After the military judge omitted the 

definition of Clause 1, appellant’s dialogue with the military judge did not develop 

any context relative to his possession of child pornography and its impact on good 

order and discipline. Further, the stipulation does not act as a safety net in this case, 

as it does not provide an additional factual basis upon which to satisfy this 

requirement. See United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). 
DOHERTY— ARMY 20160390 

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Without additional evidence, there is not a sufficient basis for accepting the plea 

under Clause 1 of Article 134, UCMJ because the record before us does not clearly 

establish the charged offense was prejudicial to good order and discipline. See 

Manual for Courts-Martial, United States (2012 ed.), Part IV, 60.c.(1), (2), (3). 

There is, however, a factual basis that supports appellant’s conduct was 

service discrediting. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 

2011). Consequently, we will dismiss the language “to the prejudice of good order 

and discipline in the armed forces and” from the Specification of Additional Charge 

IV. 

CONCLUSION 

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

Additional Charge IV as finds that: 

[Appellant], U.S. Army, did, at or near Camp Humphreys, 

Republic of Korea, on or about 4 January 2016, knowingly 

and wrongfully possess child pornography, to wit: more 

than 10 digital images of minors, engaging in sexually 

explicit conduct, and that said conduct was of a nature to 

bring discredit upon the armed forces. 

Additionally, to properly reflect the military judge’s clear intent to merge 

Specifications 1 and 2 of Charge I for both findings and sentencing, we consolidate 

Specification 1 and 2 of Charge I into a single specification, denominated the 

Specification of Charge I, to read as follows: 

[Appellant], U.S. Army, did, at or near Camp Humphreys, 

Republic of Korea, on or about 30 December 2015, 

commit a lewd act upon Miss H.D. and Miss R.D., 

children who had not attained the age of 12 years, to wit: 

masturbating in the presence of said children. 

The finding of guilty to Specification 2 of Charge I is set aside and that 

Specification is DISMISSED. The finding of guilty to the Specification of Charge I, 

as so amended, is AFFIRMED. 

The remaining finding of guilty is AFFIRMED. 
DOHERTY— ARMY 20160390 

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 Reassessing the sentence on the basis of the error noted, the entire record, and 

in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-

16 (C.A.A.F. 2013), the sentence as approved by the convening authority is 

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

deprived by virtue of that portion of the findings set aside by this decision, are 

ordered restored. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: