## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class GREGORY L. MCQUEEN, JR. United States Army, Appellant

ARMY 20150166

Headquarters, III Co rps and Fort Hood

Rebecca K. Connally, Military Judge Colonel Ian G. Corey, Staff Judge Advocate (pretrial) Lieutenant Colonel Travis L. Rogers , Staff Judge Advoca te (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA ; Major Andres Vazquez, Jr., JA; Captain Kather ine L. DePaul, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsieh, JA; Lieutenant Colonel Kare n J. Borgerding, JA (on brief).

25 May 2017

---------------------------------- SUMMARY DISPOSITION

----------------------------------

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of four specifications of attempted pandering, one specification of conspira cy to patronize a prostitute, one specification of conspiracy to solicit prostitution, one specification of conspiracy to solicit a prostitute, two specifications of violating a lawful general regulatio n, one specif ication of dereliction of duty, two sp ecifications of maltreatme nt of a subordinate, one specification of adultery, and two specifications of panderi ng in violation of Articles 80, 81, 92, 93, and 134, Uniform Code of M ilitary Justice, 10 U.S.C. §§ 880, 881, 892, 893, 934 (2012) [hereina fter UCMJ]. Additiona lly, the military judge convicted appellant, contra ry to his pleas, of one specifi cation of assault consummated by battery in violation of Article 128, UCMJ. The conveningMCQUEEN—ARMY 20150166

2 authority approved th e adjudged sentence of a dishon orable discharge, confinement for twenty-four months, and re duction to the grade of E-1. 1

This case is before us for review under Article 66, UCMJ. Appellate defense counsel assigns one error to this court, and appellant personally raises matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982). After due consideration, we find the assigned error warrants discussion and relief; the matters
raised under Grostefon are without merit.

BACKGROUND

In Specifications 1 and 2 of Charge III, appellant wa s charged with violating a lawful general regulation in violatio n of Article 92, UCMJ, as follows:

Specification 1: In that [appel lant], U.S. Army, did, at or near Fort Hood, Texas, on di vers occasions, between on or about 1 February 2013 and on or about 25 March 2013, violate a lawful ge neral regulation, to wit: paragraph 3c, III Corps and Fort Hood Regu lation 210-65 , dated 1 May 1995, by wrongfully purchasi ng for, and giving an alcoholic beverage to, Privat e First Class [(PFC) SD], a person under 21 years of age.

Specification 2: In that [appel lant], U.S. Army, did, at or near Fort Hood, Texas, betw een on or about 1 February
2013 and on or about 25 Ma rch 2013, violate a lawful general regulation, to wit: paragraph 3c, III Corps and Fort Hood Regulation 210 -65, dated 1 May 1995, by wrongfully purchasing for, and giving an alcoholic beverage to, Private [(PV2) AG], a person under 21 years of age.

At trial, the milit ary judge recited the elements for these specifications:

(1) That there was in existe nce a certain lawful general regulation . . . ;

(2) That you had a duty to obey such regu lation; and

(3) That on divers occasions, between on or about 1 February 2013 an d on or about 25 March 2013, at or

1 Prior to action, the convening authority deferred automatic forfeitures of all pay
and allowances and reduction in grade, effective 26 Marc h 2015 until 13 June 2015.MCQUEEN—ARMY 20150166

3 near Fort Hood, Texa s, you violated this lawful regulation by wrongfully giving an alco holic beverage to PFC [SW], a person under 21 years of age.

. . . .
(3) That between on or about 1 Febr uary 2013 and on or about 25 March 2013, at or near Fort Hood, Texas, you
violated this lawful regulation by wr ongfully giving an alcoholic beverage to [PV2 AG], a person under 21 years of age.

The military judge did not define “wrongfully” in the context of the Article 92, UCMJ, violations . During the providence inquiry regarding these specifications, the military judge asked appellant:

MJ: How old was PFC [SW]?

ACC: At the time, I believe, she was 19 or 20, ma’am.

MJ: And how do you know her age?

ACC: I just foun d out subsequently.

MJ: But you know now that sh e was under 21 years of age?

ACC: Yes, ma’am.

. . . .
MJ: Okay. How old is [PV2 AG]? [sic] Was she between February, 2013 and 25 March 2013?

ACC: I believe at the time she was 20.

MJ: So, she was under 21?

ACC: Yes, ma’am.

There was no further discussi on about the respec tive ages of PFC SW and PV2 AG in the colloquy. The military judge found appellant’s pl eas provident and accepted
them. 2

2 Appellant pleaded guilty ex cept the words, “purchas ing for, and” to both specifications. Additionally , the military judge found ap pellant not guilty of the
words “on divers occasions” in Specification 1 of Charge III.MCQUEEN—ARMY 20150166

4 LAW AND DISCUSSION

Appellant now alleges there is a substantial basis in law or fact to question the providency of his pleas of guilty to violating a lawful general regulation under Article 92, UCMJ. Specif ically, appe llant cites United States v. Gifford , 75 M.J. 140 (C.A.A.F. 2016), a case decided by ou r superior court afte r appellant’s courtmartial that directs the military judge to address the unstated mens rea required for a
conviction of an Article 92 , UCMJ, offense. Appellant argues his pleas were improvident because the providency inquiry failed to establish he knew or was
reckless as to whet her PFC SW and PV2 AG were unde r age twenty-one at the time he provided them with alcohol.

While there was no abuse of discretion by the milit ary judge at the time, appellant is nonetheless entitled to avai l himself of a “new rule” when the law changes while his case is on direct appeal. See United States v. Harcrow , 66 M.J. 154, 160-61 (C.A.A.F. 20 08) (Ryan, J., concur ring). Here, the m ilitary judge did not
have the benefit of our su perior court’ s opinion in Gifford during appellant’s providence inquiry. As a result, the providence inquiry was not sufficient to
establish the mens rea required to make appellant’s violation of the lawful general regulation wrongful. We wi ll take appropriate action in our decretal paragraph.

CONCLUSION

The findings of guilty of Sp ecifications 1 and 2 of Charge III are set aside and DISMISSED. The remaining findings of guilty are AFFI RMED. We are able to
reassess the sentence on the basis of the error noted a nd do so after conducting a thorough analysis of the tota lity of circumstances presente d by appellant’s case and in accordance with the principles ar ticulated by our su perior 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, 307-08 (C.M.A. 1986) . Based on the entire reco rd and appellant’s course of conduct, we are conf ident the military judge would ha ve imposed a sentence of at least that which was adju dged, and accordingly we AFFIRM the sentence.

We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are
ordered restored. See UCMJ arts. 58a(b), 75(a).

FOR THE COURT:

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