UNITED STATES ARMY COURT 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. Bennett, 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 aggravated assault with a dangerous 

weapon, one specification of assault consummated 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) [hereinafter UCMJ]. The military 

judge sentenced appellant to a bad-conduct discharge, confinement for seven months 

and reduction to the grade of E-1. The convening authority approved the adjudged 

sentence. 

Appellant’s case is before 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 which merits discussion and relief. 
SANDERS—ARMY 20160716 

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BACKGROUND

Appellant was charged with and pleaded guilty to the Specification of Charge 

II, in violation of Article 134, UCMJ, as follows: 

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

on or about 4 March 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 order and discipline in the armed forces 

and of a nature to bring discredit upon the armed forces. 

During the providence inquiry, the military judge described the two clauses of 

the terminal element of Article 134, UCMJ, in the disjunctive, despite the fact the 

clauses were charged in the conjunctive. The following colloquy occurred between 

the military judge and appellant: 

MJ: And I defined to you earlier the definitions of 

prejudicial to good order and discipline or of a nature to 

bring discredit upon the armed forces. Do you believe 

that your conduct was one of these two things? 

ACC: Yes, Sir. 

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

to. 

ACC: Sir, it’s service discrediting. 

MJ: Okay. So the definition of service discrediting is 

conduct which tends to harm the reputation 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 doing this, that that 

would tend to lower the- -their opinion of the Army? 

ACC: Yes, sir. 

MJ: Why is that? 

ACC: Well, we’re supposed to carry ourselves in a certain 

manner, sir, discipline- -supposed to be trustworthy. 

MJ: So Soldiers threatening to kill their wives may not 

look good to members of the public? 
SANDERS—ARMY 20160716 

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ACC: Yes, sir. 

There was no additional substantive inquiry 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 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 for 

questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule 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) discussion. A providence inquiry must set forth, on the 

record, the factual basis that establish that the acts of the accused 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 appellant only admits to the elements, and 

the totality of the inquiry fails to clarify 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 adequately establish how 

appellant's conduct caused a “direct and 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 additional factual 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 prejudice of good order and discipline in the armed forces and” 

from the Specification. 

CONCLUSION 

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

of Charge II as finds that: 

Did, at or near Anchorage, Alaska on or about 4 March 

2016, wrongfully communicate to Miss MSS a threat to 

kill her, by saying, “I’ll kill you,” or words to that effect, 
SANDERS—ARMY 20160716 

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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 sentence 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 was 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: