JONES—ARMY 20110103

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

SIMS, COOK, and GALLAGHER

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 BRIAN F. JONES**

**United States Army, Appellant**

ARMY 20110103

Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon

Tiernan Dolan, Military Judge

Colonel Michael W. Hoadley, Staff Judge Advocate 

For Appellant:  Lieutenant Colonel Imogene M. Jamison, JA; Captain Jennifer A. Parker, JA; Captain Meghan M. Poirier, JA (on brief).

For Appellee:  Major Amber Williams, JA; Major Ellen S. Jennings, JA; Captain Nathan S. Mammen, JA (on brief).

18 October 2011

----------------------------------

SUMMARY DISPOSITION

----------------------------------

Per Curiam:

A military judge, sitting as a special court-martial, convicted appellant, pursuant to his pleas, of failure to go to his appointed place of duty, absence without leave [hereinafter AWOL], disrespect toward a noncommissioned officer, violation of a lawful general regulation, false official statement, and wrongful use of cocaine and marijuana, in violation of Articles 86, 91, 92, 107, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 892, 907 and 912a [hereinafter UCMJ].  Appellant was sentenced to a bad-conduct discharge, and confinement for seven months.  Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence to confinement as provided for four months confinement and otherwise approved the adjudged sentence.  This case is before us for review pursuant to Article 66, UCMJ.

Appellant alleges that the military judge abused his discretion by accepting his guilty plea to both specifications of Charge III, where the cited regulation did not prohibit the charged conduct.  We agree.

**LAW AND DISCUSSION**

We review a military judge’s acceptance of an accused’s guilty plea for an abuse of discretion.  *United States v. Inabinette*, 66 M.J. 320, 322 (C.A.A.F. 2008);*United States v. Eberle*, 44 M.J. 374, 375 (C.A.A.F. 1996).  “The providence of a plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts.”  *United States v. Medina*, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing *United States v. Care*, 18 C.M.A., 535, 538-39, 40 C.M.R. 247, 250-51 (1969)).  

Specifications 1 and 2 of Charge III allege that appellant, on two occasions in August 2010, violated paragraph 13 of U.S. Army Signal Center and Fort Gordon Regulation Number 210-3, dated 7 September 2001 [hereinafter Reg. 210-3] by wrongfully driving a motor vehicle on Fort Gordon while his post driving privileges were revoked.  In paragraph 13 of Reg. 210-3, the Installation Commander authorizes the Director of Public Safety [hereinafter DPS] to suspend the driving privileges of, *inter alia*, those who have driven a motor vehicle with a blood alcohol content of 0.08 grams percent or higher.  During the providency inquiry, appellant told the military judge that he received a letter from the Military Police [hereinafter MPs] which notified him that his post driving privileges were revoked for one year based on his previous arrest for DUI on Fort Gordon, Georgia.  Appellant explained to the military judge that appellant believed he violated paragraph 13 of Reg. 210-3 by driving on post after his post driving privileges were revoked.   The military judge accepted appellant’s conclusory statement that by driving on post after receiving the letter from the MPs, he therefore violated paragraph 13 of Reg. 210-3. However, paragraph 13 of Reg. 210-3 did not itself prohibit appellant from driving on post, but rather authorized the DPS to suspend appellant’s on-post driving privileges because he had driven a motor vehicle when his blood alcohol content was 0.08 grams percent or higher.  

**CONCLUSION**

We have considered the matters personally raised by appellant pursuant to *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit.

The findings of guilty of the Specifications of Charge III and Charge III are set aside and dismissed.  The remaining findings of guilty are affirmed.  The dismissal of Charge III does not dramatically change the sentencing landscape.  Reassessing the sentence on the basis of the errors 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 Baker in his concurring opinion, the court affirms the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court

3