## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class GEORGE D.L. STARR United States Army, Appellant

ARMY 20110908

Headquarters, 21st Thea ter Sustainment Command Wendy Daknis, Military Judge

Colonel Claes H. Lewenhau pt, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Captain James P. Curt in, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA (on brief).

15 January 2013

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

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Per Curiam:

A military judge, sitting as a general court-ma rtial, convict ed appellant pursuant to his pleas of wrongfully re ceiving child po rnography (one specification) and wrongfully possessing child pornography (one specification), in violation of Article 134, Uniform Co de of Military Justic e, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge, confinement for eighteen months, forfeiture of all pay and allowa nces, and reduction to the grade of E-1. The convening authorit y only approved so mu ch of the sentence as extends to a bad-conduct discharge, conf inement for fifteen m onths, forfeiture of all pay and allowances, and re duction to the grade of E-1.

Pursuant to United States v. Grostefon , 12 M.J. 431 (C.M .A. 1982), appellant raises several issues, none of which merit discussion or relief. However, in performing our review, * we conclude that there is a substantial basis in fact to

* While conducting our review of the images pursuant to the requirements of Article 66, UCMJ, we note that one of the videos for Specification 2 of The Charge, “Valya14_(24m25s).avi,” was not view able. However, gi ven the detailed de scription in the

(continued . . .)STARR

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2 question appellant’s plea to committing conduct prej udicial to good order and discipline, and will take action in our decretal paragraph.

“During a guilty plea inquir y the military judge is ch arged with determining whether there is an adequa te basis in law and fact to support th e 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 discre tion by determining

whether the record as a whole shows a substantial basis in law or fact for questioning the guilty plea. Id. at 322.

The government charged appe llant with know ingly receiving and possessing child pornography, “w hich conduct was prejudicial to good order a nd discipline and likely to bring discredit u pon the armed forces.” (empha sis added). Given the facts of this case, there is no question as to the service di screditing aspect of appellant’s

conduct. See United States v. Phillips , 70 M.J. 161, 165 (C.A .A.F. 2011) (holding that the focus of a Clause 2, Article 134, UCMJ, offense is on the “nature” of the

conduct: whether the accused’s conduct w ould tend to bring discredit on the armed forces if known by the public, and not whether it was in fact so known) . In order to find appellant’s cond uct was prejudicial to good order and discip line, however, the plea inquiry must establis h facts demonstrating that appellant’s conduct caused “direct and palpable prejudice” to good order a nd discipline. See Manual for Courts– Martial, United States (2008 ed.), pt. IV, ¶ 60.c.(2)(a); see generally United States

v. Erickson , 61 M.J. 230, 231 (C .A.A.F. 2005).

In this case, the military judge did not elicit an adequate fa ctual basis during her colloquy with appe llant to support his plea to committing c onduct prejud icial to good order and discipline. Consequently, on the record befo re us, we find a

substantial basis in fact to question appellant’s pleas to violating Clause 1 of Article 134, UCMJ.

CONCLUSION

The court affirms only so mu ch of the finding of guil ty of Specification 1 of The Charge as finds th at appellant “did on divers oc casions, at or near Mannheim, Germany, between on or about 14 June 2010 and on or abou t 28 August 2010,

(. . . continued) stipulation of fact, as well as a very deta iled allocution made by appellant during the providence inquiry, we are c onfident that the video meet s the definition of child pornography as prov ided in 18 U.S. C. § 2256(8).STARR

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3 knowingly and wrongfully receive more than five images and three vide os of child pornography as defined in 18 U.S.C. § 2256(8), whic h conduct was likely to bring discredit upon the ar med forces.”

The court affirms only so mu ch of the finding of guil ty of Specification 2 of The Charge as finds th at appellant “did on divers oc casions, at or near Mannheim, Germany, between on or about 14 June 2010 and on or abou t 28 August 2010, knowingly and wrongfully possess more than five images an d three videos of child pornography as defined in 18 U.S.C. § 2256(8), whic h conduct was likely to bring discredit upon the ar med forces.”

Reassessing the sentence on the basis of the error noted, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Bake r in his concurri ng opinion in Moffeit , the court affirms the sentence as approv ed by the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: