UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist BRAEDEN J. TORGENSEN 

United States Army, Appellant 

ARMY 20150356 

Headquarters, I Corps 

Samuel A. Schubert, Military Judge 

Colonel Randall J. Bagwell, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez, 

Jr., JA; Captain John L. Schriver, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief). 

22 June 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge: 

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

pursuant to his pleas, of one specification of possession of a controlled substance 

and one specification of assaulting a military police officer, in violation of Articles 

112a and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 928 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge and six months confinement and granted appellant seven days of pretrial 

confinement credit. Pursuant to a pretrial agreement, the convening authority 

approved only so much of the sentence as provided for a bad-conduct discharge and 

ninety days confinement. He also credited him with seven days of confinement 

credit. 
TORGENSEN —ARMY 20150356 

2

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

raises one assignment of error which requires discussion and relief. Specifically, we 

find that the military judge abused his discretion by not inquiring into the possibility 

the accused lacked mental responsibility following evidence that raised a potential 

defense, and by accepting appellant’s plea without the accused affirmatively 

negating the defense. 

BACKGROUND 

In December 2014, during a command health and welfare inspection, 

appellant’s command found a small vial containing anabolic steroids in appellant’s 

barracks room among his belongings. Appellant was relieved from his team leader 

position in his unit and an investigation ensued. While under investigation for 

possessing steroids, appellant went to an on-post recreation establishment and drank 

heavily into the morning hours until he was extremely intoxicated – so much so that 

appellant had no recollection of the events that follow herein. 

At around 0030, when appellant and his friend, Specialist (SPC) W, left the 

drinking establishment, appellant became emotional and upset over his work 

situation. They returned to their barracks at the Ranger compound and parted ways. 

Around 0330, inebriated, appellant telephoned SPC W and said “it all doesn’t matter 

now.” Appellant’s comments, combined with his earlier emotional state, led SPC W 

to think appellant was having suicidal ideations. After two more similar calls, due 

to his concern, SPC W approached the staff duty officer to report appellant’s 

behavior. Then, a gunshot rang out from the parking lot. They ran to the parking lot 

and saw appellant exiting his vehicle and pointing a gun to his head. 

The military police (MP) responded to the parking lot immediately. Five 

patrol cars formed a perimeter around appellant. An MP approached appellant and 

tried to calm him. Appellant put the gun to his own head and said “why am I too 

much of a pussy to pull the trigger?” Appellant asked the MP if they would shoot 

him if he fired his gun towards the range. The MP said “no,” and appellant said 

“let’s test that” and fired a shot towards the range. 

The MP continued to talk to appellant to calm him and offered him a 

cigarette. As appellant smoked the cigarette, appellant surprised the MPs by firing 

another round towards the range. He then asked to speak with his father on a cell 

phone. While talking to his father, appellant fired another round from his gun to 

prove to his father that he was not lying about being surrounded by police with a gun 

to his head. 

Appellant then asked the MP, “If I point my gun at you or the building will 

you shoot me?” The MP asked appellant not to do that – but appellant waved his 

gun in the direction of several MPs anyway. The entire event lasted about forty 
TORGENSEN —ARMY 20150356 

3

minutes, culminating with appellant placing his gun on the ground and surrendering 

to the Special Weapons and Tactics (SWAT) team that responded to the scene. 

At his court-martial, appellant described the aforementioned events, not based 

on his own independent recollection, but rather based on the account of others. 

Appellant did state that while he did not recall the events, he believed he was trying 

to harm himself. The military judge accepted appellant’s plea. 

During his sentencing case, appellant described spending thirty days in an 

inpatient facility after the aforementioned attempted suicide incident. He also 

described being diagnosed with post-traumatic stress disorder (PTSD), manic 

depressive disorder, and a chemical dependency. He stated that he attended alcohol 

and substance abuse and behavioral health counseling multiple times per week. 

Appellant also described an extremely abusive childhood which included physical, 

emotional, and sexual abuse. Lastly, appellant described undergoing a medical 

procedure for PTSD to block the Stellate Ganglion nerves in an attempt to reduce 

appellant’s fight or flight response in the brain as well as reducing his hyperarousal, 

anxiety, and aggression. A letter from a behavioral health specialist that confirmed 

appellant underwent this medical procedure and outlined his ongoing mental health 

care was entered into evidence at sentencing. 

On appeal, appellant calls into question the providency of his guilty plea. 

Appellant asserts the military judge erred by not resolving a matter inconsistent with 

his plea where the record and the providence inquiry reveal evidence of a possible 

lack of mental responsibility defense. 

LAW AND DISCUSSION 

This court reviews a military judge’s decision to accept a plea for an abuse of 

discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A 

decision to accept a guilty plea will be set aside only where the record of trial shows 

a substantial basis in law or fact for questioning the plea. Id. Should an appellant 

establish facts that raise a possible defense, the military judge must inquire further 

and resolve the matters inconsistent with the plea, or reject the plea. United States 

v. Phillippe, 63 M.J. 307, 310-11 (C.A.A.F. 2006). When conducting this inquiry, 

“[a] military judge can presume, in the absence of contrary circumstances, that the 

accused is sane.” United States v. Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009). 

However, if “the accused's statements or other material in the record indicate a 

history of mental disease or defect on the part of the accused, the military judge 

must determine whether that information raises either a conflict with the plea and 

thus the possibility of a defense or only the ‘mere possibility’ of a conflict,” as 

“[t]he former requires further inquiry on the part of the military judge, the latter 

does not.” Id (citations omitted). A failure to do so constitutes a substantial basis 

in law or fact for questioning the guilty plea. Id. 
TORGENSEN —ARMY 20150356 

4

In this case, the military judge reviewed in detail the defense of voluntary 

intoxication with appellant. He neglected, however, to inquire into a potential 

defense of lack of mental responsibility despite appellant’s discussion of various 

troubling mental diagnoses, his personal behavioral health history, and the facts on 

the record regarding the incident forming the basis of the charge in this case. This is 

of particular concern in this case where appellant has no recollection of the events 

that form the basis of the charged offense. 

While the allied documents in the record of trial indicate appellant underwent 

a Rule for Courts-Martial 706 sanity board prior to his court-martial, the courtmarital record and the colloquy contain no reference to it. We also find no 

indication in the court-martial record that the military judge was aware appellant 

underwent a sanity board or its results. We will neither impute such knowledge to 

the military judge, nor will we presume the matter of mental responsibility was 

discussed thoroughly with defense counsel and appellant. 

The stipulation of fact in this case contains a general defense disclaimer but 

does not specifically include mental responsibility. Additionally, the military judge 

did not cover the defense disclaimer paragraph in any detail with appellant on the 

record. In short, the defense of mental responsibility is not mentioned on the record. 

These facts lead this court to conclude the military judge erred by not 

inquiring into the accused’s possible lack of mental responsibility defense which 

was reasonably raised by the evidence – and by accepting appellant’s plea without 

the accused affirmatively negating this potential defense. 

CONCLUSION 

On consideration of the entire record, the findings of guilty and the sentence 

are set aside. A rehearing is authorized. All rights, privileges, and property, of 

which the appellant has been deprived by virtue of the findings and sentence hereby 

set aside by this decision, and are ordered restored. See UCMJ arts. 58b(c) and 

75(a). 

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: