## UNITED STATES ARMY COUR T 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 Co rps and Fort Hood

Rebecca K. Connally, Military Judge Colonel Ian G. Corey, Staff Judge Advocate

For Appellant: Colonel Ke vin Boyle, JA; Ma jor 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 a ssault with a dang erous weapon and one specification of communica ting a threat in violati on of Articles 128 and 134,

Uniform Code of Milit ary Justice, 10 U.S.C. §§ 92 8 and 934 (2012) [hereinafter UCMJ]. The military judg e 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 befo re this court for review under Article 66, UCMJ. Appellate counsel raises one assigned er ror, and appellant pe rsonally 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 ra ised 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 Articl e 134, UCMJ, as follows:

[Appellant], U.S. Army, did, at or near Fort Hood, Texas, on or about 30 May 2014, wrongfully co mmunicate to Dr. [S.E.] a threat that there wo uld be consequences and he was going to get him, or words to that e ffect, and that said

conduct was to the prejudice of good or der and discipline

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

During the providence inqu iry, the military judge desc ribed the two clauses of

the terminal elem ent of Article 134, UCMJ , in the disjunctive, despite the fact the clauses were charged in th e conjunctive. The followi ng colloquy occurred between the military judg e and appellant:

MJ: Now, was your communication of this thr eat either to the prejudice of g ood order and discip line in the armed

forces or of a nature to br ing discredit upon the armed forces. [sic]. It could be one or the other or both and if so

how?

ACC: Well, Your Honor, ther e are many pe ople 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 action s it doesn’t convey all that honor and discipline that we have worked for.

MJ: Dr. [S.E.], do y ou know if he is mi litary 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 he aring that from you and as you said he is trying to he lp you and do y ou think that feeling threatened by a serv ice member that might--and it’s just a question so it’s either yes or no if you feel thisAGIRRE—ARMY 20140977

3 way, that might brin g 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 inquir y between the military judge and appellant regarding the prej udice of good order and discipline clause of the terminal element.

LAW AND DISCUSSION

“During a guilty plea inquir y the military judge is ch arged with determining whether there is an adequa te basis in law and fact to support th e 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 discre tion by determining

whether the record as a whole shows a substant ial basis in law or fact to question the plea. Inabinette , 66 M.J. at 322.

While this is a close ca se, the providence inquiry does not adequately show how appellant’s cond uct caused a “direct and palpab le 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 th e military judge did not develop any contex t relative to the offense and its impact on good order and discipline. A few extr a questions to ensure appellant understood this clause of the

terminal element woul d negate the need to extrapol ate 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 st atement enclosed with the stipulation indicates a non-commissioned o fficer from appellant’s unit witnessed the threat as he escorted appellant to the em ergency room at a ho spital on-post, the

evidence in the record did not buttress a prejudicial impact. The NCO reported the incident to security officers , his acting first se rgeant, and the milita ry police, but he did not elaborate on how ap pellant’s conduct affected him or the unit. Without additional evidence, there is not a sufficient basis fo r accepting the plea under Clause 1 of Article 134, UC MJ because the re cord before us does not clearly establish the charged offense was prejud icial to good orde r 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 th at supports appella nt’s conduct was service discrediting. See United States v. Phillips , 70 M.J. 161, 166 (C.A.A.F. 2011). Consequently, we w ill dismiss the langu age “was to the prejudice of good order and discipline in the armed forces an d” from the Specifi cation of Charge II.

CONCLUSION

The court affirms only so much of the finding of gu ilty 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 co mmunicate to Dr. [S.E.] a threat that there wo uld be consequences and he was going to get him, or words to that e ffect, 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 th e 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 cour t AFFIRMS the sentence.

Senior Judge TOZZI concurs.

CAMPANELLA, Judge, dissenting:

I respectfully disagr ee with my brethren. My re ad of the reco rd does not

establish a substantial basis in law and fact to reject appellant's plea as to the Article 134, UCMJ, terminal el ement “prejudicial to good or der and discipline.” To the contrary, the record reveals that appellan t understood the nature of the offense, freely admitted the elements of that offense, and plea ded guilty because he was guilty. The military judge properly define d the terminal elemen ts prior to engaging in the providence inquiry with appellant. Appellant’s re sponses adequately touched on the element of prej udice to good order an d discipline as de fined under Article 134, UCMJ. MCM , Part IV, ¶ 60.c.(2)(a).

The stipulation of fact further discus sed the terminal el ement by providing first-hand NCO testimony as to how appellant's acts involve d unit intervention - that constitutes direct evidence of prejudice to good order and discipline. Appellant’s escort and NCO witnessed ap pellant’s misconduct and prov ided a sworn statement, included as an enclosure to the stipulat ion of fact and sepa rately entered into evidence as a prosecution exhibit. In the NCO’s sworn statement he states that soonAGIRRE—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 ha d came back in to the hospital to find more se curity and hospital staff st anding around his room.” [sic]. The location of appell ant’s conduct is also worth re cognizing. It is reasonable

to infer that other soldiers could have witnessed appell ant’s misconduct because it took place in the emergency room at the on -post hospital. Appe llant also expressly agreed that the stipulation of fact could be used “ on appeal to determine the providence of [his] guil ty plea.” While this is a cl ose case, in light of the entire record, I conclu de appellant knowi ngly, 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 gu ilty and the sentence as approved by th e convening authority.

FOR THE COURT:

JOHN P. TAITT Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: