## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, SCHASBERGER, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist TREY A. SANDERS United States Army, Appellant

ARMY 20160716

Headquarters, United States Army Alaska

Kenneth W. Shahan , Military Judge

Colonel Roseanne M. Benne tt, Staff Judge Advocate

For Appellant: Captain Cody Cheek, JA; Major Brian J. Sullivan, JA.

For Appellee: Lieutenant Colonel Eric K. Stafford.

31 August 2017

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SUMMARY DISPOSITION

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SCHASBERGER, Judge:

A military judge sitting as a general court martial convicted appellant, pursuant to his pleas, of two specifications of ag gravated assault with a dangerous weapon, one specification of assault cons ummated by battery, and one specification of communicating a threat in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [h ereinafter UCMJ] . The military judge sentenced appellant to a bad-conduct discharge, confinemen t for seven months and reduction to the grade of E-1. The conveni ng authority approv ed the adjudged

sentence.

Appellant’s case is befo re this court for review under Article 66, UCMJ. Appellant personally raises three matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982); one of wh ich merits discussion and relief.SANDERS—ARMY 20160716

2 BACKGROUND

Appellant was charged with and pleaded guilty to the Specification of Charge II, in violation of Articl e 134, UCMJ, as follows:

[Appellant], U.S. Army, did, at or near Anchorage, Alaska

on or about 4 Marc h 2016, wrongfully communicate to Miss [MSS] a threat to kill her, by saying “ I’ll kill you,” or words to that effect, such conduct being to the prejudice of good orde r and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

During the providence inqu iry, the military judge desc ribed the two clauses of

the terminal elem ent of Article 134, UCMJ , in the disjunctive, despite the fact the clauses were charged in th e conjunctive. The followi ng colloquy occu rred between the military judg e and appellant:

MJ: And I defined to you earlier the definitions of prejudicial to good or der and discipline or of a nature to bring discredit upon the arme d forces. Do you believe that your conduct was on e of these two things?

ACC: Yes, Sir.

MJ: Which one? You can talk to your lawyer , if you want

to.

ACC: Sir, it’s se rvice discrediting.

MJ: Okay. So the definition of service discrediting is

conduct which tends to harm the reputati on of the service or lower it in public esteem. So in other words, do you believe that if the public knew- -the members of the general public knew that you were doin g this, that that

would tend to lowe r the- -their opini on of the Army?

ACC: Yes, sir.

MJ: Why is that?

ACC: Well, we’re supposed to carry ourselves in a certain manner, sir, discip line- -supposed to be trustworthy.

MJ: So Soldiers threatening to kill their wives may not look good to memb ers of the public?SANDERS—ARMY 20160716

3 ACC: Yes, sir.

There was no additional substantive inquir y between the military judge and appellant regarding the terminal element of Article 134. The stipulation of fact was silent as to either effect of discipline on the unit or reputation of the service.

LAW AND DISCUSSION

“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; UCMJ art. 45; Ru le for Courts-Martial [hereinafter R.C.M.] 910(e).

The accused must admit every element of the offense to which he pleads guilty. See R.C.M. 910(e) discussi on. A providence inquir y must set forth, on the record, the factual basis that establish that the acts of the ac cused constituted the

offense to which he is pleading guilty. United States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247 , 253 (1969). Where a ppellant only admits to the elements, and the totality of the inquiry fails to clarif y the factual basis to support appellant’s actions, the plea is improvident. See United States v. Jordan , 57 M.J. 236, 238 (C.A.A.F. 2002).

In this case, the providence inquiry does not adequate ly establish how appellant's conduct caused a “direct an d palpable effect on good order and discipline.” See United States v. Erickson , 61 M.J. 230, 232 (C.A.A.F. 2005). Additionally, the stipulation of fact does not provide an ad ditional factua l basis upon which to satisfy this requirement. There is however, a factual basis to support that appellant’s conduct is service discrediting. See United States v. Phillips , 70 M.J. 161, 166 (C.A.A.F. 2011 ). Consequently, on the record before us, we will dismiss the language “to the pr ejudice of good order and discipline in th e armed forces and” from the Specification.

CONCLUSION

The court affirms only so much of the finding of gu ilty of The Specification of Charge II as finds that:

Did, at or near Anchorage, Alaska on or about 4 March 2016, wrongfully co mmunicate to Miss MSS a threat to kill her, by saying, “I’ll kill you,” or words to that effect,SANDERS—ARMY 20160716

4 such conduct being of a nature to bring discredit upon the

armed forces.

The remaining findings of guilty are AFFIRMED.

We are able to reassess the senten ce on the basis of the error noted, the entire record, and in accordance with the principals of United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013 ). We are confident that based on the entire record and appellant’s course of conduct, the military judge would have imposed a sentence

of at least that which wa s adjudged, and accordingly we AFFIRM the sentence.

Senior Judge TOZZI and Judge BURTON concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: