UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist ALFREDO I. AGIRRE III 

United States Army, Appellant 

ARMY 20140977 

Headquarters, III Corps and Fort Hood 

Rebecca K. Connally, Military Judge 

Colonel Ian G. Corey, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain 

Payum Doroodian, JA (on brief). 

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

Samuel E. Landes, JA (on brief). 

30 November 2015 

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SUMMARY DISPOSITION 

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CELTNIEKS, Judge: 

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

pursuant to his pleas, of one specification of assault with a dangerous weapon 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 twenty days, and reduction to the grade of E-2. The convening 

authority approved the adjudged sentence. 

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

Appellate counsel raises one assigned error, and appellant personally raises one 

matter pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The 

assigned error warrants discussion and relief; the matter raised pursuant to Grostefon

is without merit. 
AGIRRE—ARMY 20140977 

2 

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 Fort Hood, Texas, 

on or about 30 May 2014, wrongfully communicate to Dr. 

[S.E.] a threat that there would be consequences and he 

was going to get him, or words to that effect, and that said 

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 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: Now, was your communication of this threat either to 

the prejudice of good order and discipline in the armed 

forces or of a nature to bring discredit upon the armed 

forces. [sic]. It could be one or the other or both and if so 

how? 

ACC: Well, Your Honor, there are many people who put 

this uniform on and have done a lot of good in this world 

and they bring honor to this uniform and for me wearing 

the uniform to do such actions it doesn’t convey all that 

honor and discipline that we have worked for. 

MJ: Dr. [S.E.], do you know if he is military or civilian? 

ACC: He is a civilian, Your Honor. 

MJ: Do you think that--and he knows you are a Soldier, 

right? 

ACC: Yes, Your Honor. 

MJ: Do you think that by hearing that from you and as 

you said he is trying to help you and do you think that 

feeling threatened by a service member that might--and 

it’s just a question so it’s either yes or no if you feel this 
AGIRRE—ARMY 20140977 

3 

way, that might bring the reputation of the service to 

civilians because he is a civilian, kind of bring it down a 

notch? 

ACC: Yes, Your Honor. 

There was no additional substantive inquiry between the military judge and appellant 

regarding the prejudice of good order and discipline clause of the terminal element. 

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. 

While this is a close case, the providence inquiry does not adequately show 

how appellant’s conduct caused a “direct and palpable effect on good order and 

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

appellant mentioning the word “discipline,” his dialogue with the military judge did 

not develop any context relative to the offense and its impact on good order and 

discipline. A few extra questions to ensure appellant understood this clause of the 

terminal element would negate the need to extrapolate facts from elsewhere in the 

record. 

Further, 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). Although a sworn statement enclosed with the 

stipulation indicates a non-commissioned officer from appellant’s unit witnessed the 

threat as he escorted appellant to the emergency room at a hospital on-post, the 

evidence in the record did not buttress a prejudicial impact. The NCO reported the 

incident to security officers, his acting first sergeant, and the military police, but he 

did not elaborate on how appellant’s conduct affected him or the unit. Without 

additional evidence, there is not a sufficient basis for accepting the plea under 

Clause 1 of Article 134, UCMJ because the record before us does not clearly 

establish the charged offense was prejudicial to good order and discipline. See 

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Part IV, 

60.c.(1), (2), (3). 
AGIRRE—ARMY 20140977 

4 

There is, however, a factual basis that supports appellant’s conduct was 

service discrediting. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 

2011). Consequently, we will dismiss the language “was to the prejudice of good 

order and discipline in the armed forces and” from the Specification of Charge II. 

CONCLUSION 

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

of Charge II as finds that: 

[Appellant], U.S. Army, did, at or near Fort Hood, Texas, 

on or about 30 May 2014, wrongfully communicate to Dr. 

[S.E.] a threat that there would be consequences and he 

was going to get him, or words to that effect, and that said 

conduct was of a nature to bring discredit upon the armed 

forces. 

The remaining findings of guilty are AFFIRMED. 

Reassessing 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), the court AFFIRMS the sentence. 

Senior Judge TOZZI concurs. 

CAMPANELLA, Judge, dissenting: 

I respectfully disagree with my brethren. My read of the record does not 

establish a substantial basis in law and fact to reject appellant's plea as to the Article 

134, UCMJ, terminal element “prejudicial to good order and discipline.” To the 

contrary, the record reveals that appellant understood the nature of the offense, 

freely admitted the elements of that offense, and pleaded guilty because he was 

guilty. The military judge properly defined the terminal elements prior to engaging 

in the providence inquiry with appellant. Appellant’s responses adequately touched 

on the element of prejudice to good order and discipline as defined under Article 

134, UCMJ. MCM, Part IV, ¶ 60.c.(2)(a). 

The stipulation of fact further discussed the terminal element by providing 

first-hand NCO testimony as to how appellant's acts involved unit intervention - that 

constitutes direct evidence of prejudice to good order and discipline. Appellant’s 

escort and NCO witnessed appellant’s misconduct and provided a sworn statement, 

included as an enclosure to the stipulation of fact and separately entered into 

evidence as a prosecution exhibit. In the NCO’s sworn statement he states that soon 
AGIRRE—ARMY 20140977 

5 

after the incident, “I called... my acting [first sergeant] and the [military police] to 

explain what had happened. Once I finished my [p]hone call I had came back in to 

the hospital to find more security and hospital staff standing around his room.” 

[sic]. The location of appellant’s conduct is also worth recognizing. It is reasonable 

to infer that other soldiers could have witnessed appellant’s misconduct because it 

took place in the emergency room at the on-post hospital. Appellant also expressly 

agreed that the stipulation of fact could be used “on appeal to determine the 

providence of [his] guilty plea.” While this is a close case, in light of the entire 

record, I conclude appellant knowingly, intelligently, and voluntarily entered a plea 

of guilty and the judge did not abuse his discretion in accepting his plea. I would 

affirm the findings of guilty and the sentence as approved by the convening 

authority. 

FOR THE COURT: 

JOHN P. TAITT 

 Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: