UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant VICTOR M. LOPEZ 

United States Army, Appellant 

ARMY 20140891 

Headquarters, United States Army South 

Wade N. Faulkner, Military Judge 

Lieutenant Colonel James S. Tripp, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. 

Inkenbrandt, JA; Captain Jennifer K. Beerman, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain 

Samuel E. Landes, JA (on brief). 

21 January 2016 

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SUMMARY DISPOSITION 

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Judge BURTON: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of possessing child pornography, one 

specification of distributing child pornography, and one specification of adultery1

 in 

violation of Articles 134, Uniform Code of Military Justice, 10 U.S.C. §934 (2012) 

[hereinafter UCMJ]. The court sentenced appellant to be discharged from the service 

with a dishonorable discharge, to be confined for twenty-three months and to be 

reduced to the grade of E-1. The convening authority approved the sentence as 

adjudged. 

Appellant’s case is before this court for review under Article 66, UCMJ. 

Appellant counsel raises two errors, one of which merits discussion and relief. 

 

1

 Appellant was found guilty of adultery, except the words, “was to the prejudice of good order and 

discipline in the armed forces”. 
LOPEZ—ARMY 20140891 

2 

BACKGROUND 

Appellant was charged with and pleaded guilty to Specification 1 of The 

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

 [Appellant], U.S. Army, did, at or near Bogota, Columbia, 

between 15 January 2014 and about 29 January 2014, knowingly 

and wrongfully possess child pornography, to wit: 

approximately three2 images and 28 videos of a minor, or 

what appears to be a minor, engaging in sexually explicit 

conduct, and that said conduct was 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 offenses in the conjunctive, as they were 

charged. Appellant admitted in his own words: 

 It’s prejudicial against good order and discipline, 

sir, um, because, us, not only did the people I work 

with had to find someone else immediately while I was 

removed from my position; they also have to feel and do 

everything that I have done for almost an entire an year 

which is very difficult. Not only did I have to be in 

different groups but also different entities. And in turn 

it took—it takes time for the government to find someone 

to replace me which means that they would have to do your 

job plus their job. 

When asked by the military judge, “[W]hen it was discovered that you had this 

child pornography were you suspended from your duties at all?” Appellant responded: 

“I was told to go into my office and wait there and not go nowhere. And then my 

supervisor was told the same thing not to leave me to go nowhere and I was in my 

office still working because I didn’t know why at that time.” 

The providence inquiry concluded with no additional inquiry into prejudicial to 

good order and discipline. 

Appellant was charged with and pleaded guilty to specification 2 of the Charge, 

in violation of Article 134, UCMJ, as follows: 

[Appellant], U.S. Army, did, at or near Bogota, Columbia, 

on or about 22 January 2014, knowingly and wrongfully 

 

2

 The charges was amended after pleas and before findings to two images. 
LOPEZ—ARMY 20140891 

3 

distribute child pornography, to wit: approximately six 

videos of a minor, or what appears to be a minor, engaging 

in sexually explicit conduct, to another person via a 

Peer-to-Peer Network called Shareaza, and that said conduct 

was 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 for this specification, the military judge again 

described the two clauses of the terminal element of Article 134, UCMJ offenses in 

the conjunctive, as they were charged. When asked why his conduct was prejudicial 

to good order and discipline, Appellant stated: 

 Um, I was- - I was stating earlier as far as my 

position, not only I was gone now that somebody 

has to replace me and learn everything that I had 

to do in a short period of time which is not really 

- - it’s not possible to do. You have to be there 

for some amount of time. 

The providence inquiry for this specification concluded with no additional 

inquiry into prejudicial to good order and discipline. 

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 to question 

the plea. Inabinette, 66 M.J. at 322. 

In this case, the providence inquiry does not adequately establish how 

appellant's conduct caused a “’direct and palpable prejudice’ to good order and 

discipline.” United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005). The 

investigation into appellant’s possession of child pornography or the command’s 

response after the investigation are not a legitimate basis for accepting the plea 

because it does not demonstrate how the charged offense had an effect on good 

order and discipline. Additionally, the stipulation of fact does not provide an 

additional factual basis upon which to satisfy this requirement. See United States v. 

Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). 
LOPEZ—ARMY 20140891 

4 

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, we will dismiss the language “to the prejudice of good 

order and discipline in the armed forces” from Specification 1 and 

Specification 2 of The Charge. 

CONCLUSION 

The court affirms only so much of the finding of guilty of Specification 1 of 

The Charge as finds that: 

[Appellant], U.S. Army, did, at or near Bogota, Columbia, 

between 15 January 2014 and about 29 January 2014, knowingly 

and wrongfully possess child pornography, to wit: 

approximately two images and 28 videos of a minor, or 

what appears to be a minor, engaging in sexually explicit 

conduct, and that said conduct was of a nature to bring 

discredit upon the armed forces. 

The court affirms only so much of the finding of guilty of Specification 2 of 

The Charge as finds that: 

[Appellant], U.S. Army, did, at or near Bogota, Columbia, 

on or about 22 January 2014, knowingly and wrongfully 

distribute child pornography, to wit: approximately six 

videos of a minor, or what appears to be a minor, engaging 

in sexually explicit conduct, to another person via a 

Peer-to-Peer Network called Shareaza, and that said conduct 

was 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 and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on 

the entire record and appellant’s course of conduct, the panel would have imposed a 

sentence of at least that which was adjudged, and accordingly we AFFIRM the 

sentence. 

We find this reassessed sentence is not only purged of any error but is also 

appropriate. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings set aside by our decision, are 

ordered restored. 
LOPEZ—ARMY 20140891 

5 

Senior Judge MULLIGAN and Judge HERRING concur. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: