This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Byunggu KIM, Sergeant First Class

United States Army, Appellant

No. 22-0234

Crim. App. No. 20200689

Argued February 7, 2023—Decided May 5, 2023

Military Judges: Mary Catherine Vergona

and Troy A. Smith

For Appellant: Captain Carol K. Rim (argued); Colonel Michael C. Friess, Lieutenant Colonel Dale C. 

McFeatters, and Major Bryan A. Osterhage (on 

brief); Major Julia M. Farinas, Major Rachel P. Gordienko, and Jonathan F. Potter, Esq.

For Appellee: Captain Joshua A. Hartsell (argued); 

Colonel Christopher B. Burgess, Lieutenant Colonel 

Jacqueline J. DeGaine, and Major Pamela L. Jones

(on brief).

Judge SPARKS delivered the opinion of the Court, 

in which Chief Judge OHLSON, Judge MAGGS, 

Judge HARDY, and Judge JOHNSON joined.

_______________
United States v. Kim, No. 22-0234/AR

Opinion of the Court

2

Judge SPARKS delivered the opinion of the Court.

This case arises out of the conviction of Sergeant First 

Class Byunggu Kim (Appellant), in accordance with his 

pleas, of four specifications of sexual abuse of a child and 

one specification each of making an indecent recording, assault consummated by a battery, and indecent conduct in 

violation of Articles 120b, 120c, 128, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 920c, 

928, 934 (2018). The military judge sentenced Appellant to 

a dishonorable discharge, 130 months of confinement, and 

reduction to grade E-1. In keeping with the plea agreement, the convening authority reduced the confinement to 

six years and otherwise approved the sentence.

The United States Army Court of Criminal Appeals affirmed the findings and sentence in a summary disposition. 

Appellant then petitioned this Court and his petition was 

granted on November 7, 2022.

This Court granted oral argument to resolve three questions,1 including whether the military judge abused his discretion by failing to abide by the heightened plea inquiry

requirements under United States v. Hartman, 69 M.J. 467 

(C.A.A.F. 2011). For the reasons set forth below, we conclude that the military judge did abuse his discretion. 

1 The actual granted issues were:

I. Whether a guilty plea to an offense waives a 

challenge that the conduct is not a cognizable 

offense under the Uniform Code of Military 

Justice.

II. Whether, in this case, internet search queries for “drugged sleep” and “rape sleep” are 

indecent conduct; in the alternative, whether 

the military judge abused his discretion by 

failing to abide by the heightened plea inquiry 

requirements under United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011).
United States v. Kim, No. 22-0234/AR

Opinion of the Court

3

Because of our resolution of this issue, we need not address 

the remaining issues. 

I. Background

The relevant charge in this case stemmed from Appellant’s sexual abuse of his twelve-year-old stepdaughter, 

AK, which unfolded over an approximately two-year period 

starting in 2018. The abuse usually took place late at night 

in the living room or AK’s bedroom. At first, Appellant 

would wait until AK started falling asleep and then massage her on the leg, the upper thigh, and the buttocks area. 

Eventually the massages migrated to her genital area, both 

over and under her clothing. AK was taking medication 

that could cause hallucinations and Appellant would flash 

lights and pound on the walls late at night to exacerbate 

this side effect. Appellant also began setting up his cell 

phone to film AK in the shower. He then edited these clips 

into sexually explicit videos he stored on his phone. In addition, in early 2019, Appellant conducted multiple 

searches on a pornographic website using the terms “rape 

sleep” and “drugged sleep” because watching such videos 

reminded him of abusing AK. In April 2019, AK reported 

Appellant’s actions to law enforcement.

Appellant pled guilty to four specifications of sexual 

abuse of a child and several other offenses including one 

specification of indecent conduct by searching for the pornographic videos. The specification stated that Appellant 

“did . . . commit indecent conduct, to wit: conducting an internet search for ‘rape sleep’ and ‘drugged sleep,’ and that 

said conduct was of a nature to bring discredit upon the 

armed forces.” During the plea colloquy, Appellant told the 

military judge that he sought out videos “depicting simulated vulgar sex scenes involving sleep or sex with an individual that was pretending to be asleep” and that watching 

the videos reminded him of sexually abusing AK. The colloquy of the military judge on this offense is at issue. 

II. Discussion

We review a military judge’s decision to accept a guilty 

plea for an abuse of discretion and questions of law arising 
United States v. Kim, No. 22-0234/AR

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4

from the guilty plea de novo. United States v. Inabinette, 66 

M.J. 320, 322 (C.A.A.F. 2008). “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.” Id. at 321-22 (citing United States 

v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). A military judge 

abuses his or her discretion by “fail[ing] to obtain from the 

accused an adequate factual basis to support the plea—an 

area in which we afford significant deference” or if his or 

her ruling is based on an erroneous view of the law. Id. at 

322.

We give the military judge broad discretion in the decision to accept a guilty plea because the facts are undeveloped in such cases. Id. In reviewing the military judge’s decision, this Court applies a substantial basis test: “Does the 

record as a whole show a substantial basis in law and fact 

for questioning the guilty plea.” Id. (internal quotation 

marks omitted) (quoting Prater, 32 M.J. at 436). “[B]ecause 

a guilty plea is an admission of all the elements of a formal 

criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation 

to the facts.” United States v. Care, 18 C.M.A. 535, 539, 40 

C.M.R. 247, 251 (1969) (quoting McCarthy v. United States, 

394 U.S. 459, 466 (1969)).

The First Amendment to the United States Constitution states that, “Congress shall make no law . . . abridging 

the freedom of speech.” U.S. Const. amend. I. Though servicemembers are not excluded from First Amendment protection, it is important to remember that:

the different character of the military community 

and of the military mission requires a different application of those protections. The fundamental 

necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be 

constitutionally impermissible outside it.

Parker v. Levy, 417 U.S. 733, 758 (1974).

“When a charge against a servicemember may implicate 

both criminal and constitutionally protected conduct, the 
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distinction between what is permitted and what is prohibited constitutes a matter of critical significance.” Hartman, 

69 M.J. at 468 (internal quotation marks omitted) (quoting 

United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 

2003)). In a guilty plea situation, “the colloquy between the 

military judge and an accused must contain an appropriate 

discussion and acknowledgment on the part of the accused 

of the critical distinction between permissible and prohibited behavior.” Id. “The fundamental requirement of plea 

inquiry . . . involves a dialogue in which the military judge 

poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct.” Id. at 469.

In Hartman, this Court was troubled by the fact that 

the military judge failed to ask the appellant whether he 

understood the relationship between certain sections of the 

colloquy and the distinction between constitutionally protected behavior and criminal conduct. Id. We determined 

that “[i]n the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the 

relationship between the supplemental questions and the 

issue of criminality, we cannot view [an appellant’s] plea as 

provident.” Id. 

Hartman involved a conviction for sodomy under Article 

125, UCMJ, 10 U.S.C. § 925 (2006). 69 M.J. at 467. As such, 

it implicated the Supreme Court’s decision in Lawrence v. 

Texas, 539 U.S. 558 (2003), protecting consensual sodomy 

in the privacy of one’s own home. The First Amendment 

right implicated in the present case was established by the 

Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969). 

In that case, investigators acting upon a search warrant for 

evidence of illegal bookkeeping seized three reels of eightmillimeter film they deemed obscene. Id. at 558. The appellant challenged his conviction for possession of obscene 

matter, asserting his First Amendment rights had been violated. Id. at 559. The Supreme Court agreed, stating that 

“the mere private possession of obscene matter cannot constitutionally be made a crime.” Id. The Court upheld a constitutional right “to be free, except in very limited 
United States v. Kim, No. 22-0234/AR

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circumstances, from unwanted governmental intrusion 

into one’s privacy.” Id. at 564.

If the First Amendment means anything, it means 

that a State has no business telling a man, sitting 

alone in his own house, what books he may read 

or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. 

Id. at 565. 

This constitutional right protected in Stanley does not 

automatically apply to servicemembers. Conduct that is 

constitutionally protected for civilians could still qualify as 

prejudicing good order and discipline or bringing discredit 

upon the military. United States v. Moon, 73 M.J. 382, 388 

(C.A.A.F. 2014) (quoting United States v. Barberi, 71 M.J. 

127, 131 (C.A.A.F. 2012)). However, images viewed for sexual gratification do not necessarily lose their First Amendment protection. Id. at 389. Appellant’s behavior here occupies a constitutional gray area similar to that at issue in 

Hartman. As a result, the plea colloquy should have established why possibly constitutionally protected material 

could still be service discrediting in the military context. 

See id. (stating that “[w]ithout a proper explanation and 

understanding of the constitutional implications of the 

charge, [a]ppellant’s admissions in his stipulation and during the colloquy regarding why he personally believed his 

conduct was service discrediting and prejudicial to good order and discipline do not satisfy Hartman.”).2

Appellant argues that the military judge’s examination 

of Appellant did not rise to the level of the detailed inquiry 

required under Hartman whenever there is the potential to 

criminalize constitutionally protected conduct. The Government counters that the military judge engaged in a detailed colloquy that included a thorough explanation of the 

charges and demonstrated Appellant’s understanding of 

2 Moon involved an appellant charged with possession of images of nude minors. 73 M.J. at 383. 
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the criminality of his actions, and that this was sufficient 

to meet the heightened standard required by Hartman.

The record shows that the military judge conducted a 

thorough plea colloquy with regard to the elements of the 

offense. He stated the elements and definitions relevant to 

the charged offense and questioned Appellant in detail 

about his behavior. Appellant was clear about the nature 

of the videos he searched for and watched and about why 

he watched them, as well as the service discrediting nature 

of his actions. The military judge explored Appellant’s motivation in searching for and viewing pornographic videos 

related to the terms “rape sleep” and “drugged sleep.” Appellant confirmed with the military judge the connection 

between the videos and abusing his stepdaughter. Appellant appeared to understand why his conduct was criminal. 

See Care, 18 C.M.A. at 541, 40 C.M.R. at 253. 

However, the military judge did not discuss Appellant’s 

First Amendment rights or any of the constitutional 

implications of his situation. In Hartman, this Court set 

aside a guilty plea because the military judge failed to 

discuss with the appellant the relevant distinction between 

constitutionally protected behavior and criminal conduct. 

69 M.J. at 469. If we adhere to the heightened standard 

outlined in Hartman, the military judge should have 

discussed with Appellant the existence of constitutional 

rights relevant to his situation and made sure Appellant 

understood why his behavior under the circumstances did 

not merit such protection. 

Given our decision in Hartman, we cannot view this 

plea colloquy as sufficient. We have been clear that the colloquy between the military judge and an accused “must

contain an appropriate discussion and acknowledgment on 

the part of the accused of the critical distinction between 

permissible and prohibited behavior.” Id. at 468 (emphasis 

added). In Moon, we further clarified that such discussion 

is required in situations where an Article 134, UCMJ,

charge implicates constitutionally protected conduct. 73 

M.J. at 388. Because such a discussion did not occur here, 

there is a substantial basis in law for questioning the plea. 
United States v. Kim, No. 22-0234/AR

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We therefore conclude that the military judge abused his 

discretion and that Appellant’s guilty plea to the charge of 

indecent conduct was improvident.

III. Decision

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge VI and its specification and the sentence, but affirmed in all other respects. 

The findings of guilty with respect to this charge and specification are set aside, and Charge VI and its specification 

are dismissed without prejudice. The decision is affirmed 

as to the remaining findings. The case is returned to the 

Judge Advocate General of the Army for remand to that 

court for reassessment of the sentence.