UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Private E1 CHASE A. FROSETH

United States Army, Appellant

ARMY 20120851

Headquarters, I Corps

Stefan R. Wolfe, Military Judge (arraignment)

E. Bradford Bales, Military Judge (trial)

Lieutenant Colonel John T. Rothwell, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr. 

JA; Major Vincent T. Shuler, JA; Captain Patrick A. Crocker, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Captain Sean Fitzgibbon, JA; Captain Jaclyn E. Shea, JA (on brief).

8 April 2014

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SUMMARY DISPOSITION

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Per Curiam:

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

pursuant to his pleas, of larceny of military property and removal of property to 

prevent seizure in violation of Articles 121 and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 921, 934 [hereinafter UCMJ]. The military judge sentenced 

appellant to a bad-conduct discharge and confinement for four months. Pursuant to 

a pretrial agreement, the convening authority approved only so much of the sentence 

as provided for a bad-conduct discharge and confinement for 90 days. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one assignment of error. We find this issue without merit, but address an

additional issue which warrants discussion and relief. 
FROSETH—ARMY 20120851

2

BACKGROUND

Appellant was originally charged with and pleaded guilty to a violation of 

Article 134, UCMJ, as follows: 

[Appellant], U.S. Army, did at or near Joint Base LewisMcChord, Washington, between on or about 10 February 

2012 and on or about 25 April 2012, with intent to prevent 

its seizure, remove a night vision device, property which, 

as [appellant] then knew, persons authorized to make 

searches and seizures were endeavoring to seize, which 

conduct was to the prejudice of good order and discipline 

in the armed forces and was 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 this Article 134, UCMJ, offense in the conjunctive, as it was

charged. The military judge asked appellant if his conduct satisfied both of these 

clauses. Appellant said “yes, your honor.” The military judge asked “[d]o you also 

admit that this, in fact, did affect your unit, since they had to go into lock -down and 

a search?” Appellant responded “yes, I do your honor.” The providence inquiry was 

concluded with no additional inquiry into either clause of the terminal element. 

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. Inabinette, 66 M.J. at 322.

To be service discrediting, appellant's conduct must “tend to bring the service 

into disrepute if it were known.” United States v. Phillips, 70 M.J. 161, 166 

(C.A.A.F. 2011). In this case, the military judge did not elicit an adequate factual 

basis during the colloquy with appellant to support his plea that his conduct was 

service discrediting. Additionally, the stipulation of fact does not provide an 

additional factual basis upon which to satisfy the providency requirement for this 

clause of the terminal element. See United States v. Care, 18 U.S.C.M.A. 535, 40 

C.M.R. 247 (C.M.A.). 

The stipulation of fact and the providence inquiry do, however, adequately 

establish appellant's conduct caused a “direct and palpable effect on good order and 

discipline.” See United States v. Erickson, 61 M.J. 230, 233 (C.A.A.F. 2005). 
FROSETH—ARMY 20120851

3

Consequently, on the record before us, we will dismiss the language “and was of a 

nature to bring discredit upon the armed forces” from the Specification of Charge II. 

CONCLUSION

On consideration of the entire record and the noted error, we AFFIRM the 

finding of guilty to Charge I and its Specification. We further affirm only so much 

of the finding of guilty of Charge II and its Specification as finds that: 

[Appellant], U.S. Army, did at or near Joint Base LewisMcChord, Washington, between on or about 10 February 

2012 and on or about 25 April 2012, with intent to prevent 

its seizure, remove a night vision device, property which, 

as [appellant] then knew, persons authorized to make 

searches and seizures were endeavoring to seize, which 

conduct was to the prejudice of good order and discipline 

in the armed forces. 

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 the 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). 

Reassessing the sentence based on the noted error, we AFFIRM the approved 

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.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: