UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and SCHASBERGER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant ELI R. VICK 

United States Army, Appellant 

ARMY 20180530 

Headquarters, I Corps 

Timothy P. Hayes, Jr. and Lanny J. Acosta, Jr., Military Judges 

Colonel Oren H. Mcknelly, Staff Judge Advocate 

For Appellant: Major Julie L. Borchers, JA; Captain Steven J. Dray, JA. 

For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed. 

11 April 2019 

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SUMMARY DISPOSITION 

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Per Curiam: 

 Appellant has not raised any assignments of error and has submitted his case 

for our review “on its merits.” We find it has merit indeed. Our review of this case 

reveals one clear error requiring correction. 

We set aside appellant’s conviction for a specification alleging appellant was 

derelict in his duties. Appellant’s plea colloquy with the military judge did not 

establish his guilt, much less his providence thereto. Moreover, the stipulation of 

fact—mutually agreed to by appellant and the government—directly refutes the 

substance of appellant’s alleged dereliction. 

 

BACKGROUND 

Appellant was a Unit Prevention Leader (UPL), a position dedicated to 

preventing the abuse of controlled substances in appellant’s unit. He was also a 

drug dealer. More precisely, appellant was already engaged in the manufacture, 

transportation, and distribution of controlled substances when he was given duties as 

a UPL. Appellant’s new duties did not deter him from his nefarious activities. 
VICK—ARMY 20180530 

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One of appellant’s duties as a UPL was to conduct training on the dangers of 

illicit substances and to help prevent the use of such substances within his unit. Not 

shy of contradictions, appellant simultaneously possessed, used, manufactured, or 

distributed a variety of controlled substances, including marijuana, cocaine, MDMA, 

and psilocybin mushrooms. Unfortunately for appellant, his double life was soon 

discovered, and his tenure as both UPL and drug-dealer came to an ignominious end. 

Charged with a cavalcade of misconduct, appellant offered to plead guilty to 

his pharmacological misdeeds in exchange for dismissal of one charge and assurance 

that he would serve no more than twenty months of confinement. The convening 

authority accepted appellant’s offer, and the parties entered into a pretrial agreement 

accordingly. 

One of the specifications to which appellant agreed to plead guilty alleged he 

was derelict in his duties as a UPL because, “he willfully failed to deliver informed 

prevention education and training to all Soldiers assigned to [appellant’s unit].” 

Inexplicably, appellant and the government also agreed to a stipulation of fact that 

stated: “During his time as UPL, [appellant] would continue to provide training 

commensurate with his position as UPL, but he would also use, manufacture, and 

distribute controlled substances in his personal capacity.” (emphasis added). 

At appellant’s guilty plea, he dutifully explained his nefarious enterprises 

manufacturing, distributing, and personally using various controlled substances. 

When appellant’s providence inquiry turned to the subject of dereliction, however, 

his explanation was convoluted. Appellant’s initial explanation was that he was 

derelict as a UPL because he “didn’t prevent anything from happening” and “didn’t 

inform the chain of command of any drug-related incidents happening in the unit.” 

The military judge pointed out that appellant was charged with dereliction for 

failing to provide training, not for failing to notify the chain of command about drug 

use in the unit. The military judge asked appellant if he had provided the training a 

UPL was required to provide. Appellant responded, “I did, your Honor.” The 

military judge asked why appellant was derelict if he provided the training. 

Appellant responded that, while he provided the training, he also provided drugs to 

members of his unit and “failed to inform the leadership of the consequences.” 

While appellant briefly suggested that he might not have provided as many 

quarterly training sessions as were required of a UPL, further discussion with the 

military judge demonstrated he most likely provided the required quarterly training. 

Eventually, appellant suggested that he was derelict because he “failed to provide 

education and training when [he] handed out the drugs to soldiers.” Eventually, the 

military judge appeared to accept this theory, coupled with the explanation from 

defense counsel that appellant’s “UPL duties were essentially 24/7, so if he saw 

someone using drugs it was his duty at that time to inform them, or to prevent that 
VICK—ARMY 20180530 

3 

from happening.” The trial counsel agreed. The military judge ultimately accepted 

appellant’s plea, but did not resolve the contradiction between appellant’s theory of 

his own guilt and the stipulation of fact. 

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

pursuant to his pleas, of one specification under Article 92 and nine specifications 

under Article 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 112a 

[UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, three 

years of confinement, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. Pursuant to the pretrial agreement, the convening authority approved 

appellant’s sentence only insofar as it provided for a bad-conduct discharge, twenty 

months of confinement, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. Appellant’s case is now before us for review under Article 66, UCMJ. 

LAW AND DISCUSSION 

A military judge’s decision to accept a guilty plea is reviewed for an abuse of 

discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be 

set aside if we find a substantial basis in law or fact to question the plea. Id. (citing 

Inabinette, 66 M.J. at 322). While a stipulation of fact can support the providence 

of a guilty plea, it can also introduce matters inconsistent with a guilty plea and 

render such a plea improvident. See United States v. Simpson, 77 M.J. 279, 283 

(C.A.A.F. 2018). 

We find the military judge abused his discretion by accepting appellant’s plea 

to the dereliction of duty specification. Appellant’s colloquy with the military judge 

was insufficient to establish that appellant “willfully failed to deliver informed 

prevention education and training.” Further, the stipulation of fact explicitly stated: 

“During his time as UPL, [appellant] would continue to provide training 

commensurate with his position as UPL . . . .” The stipulation of fact is therefore 

plainly inconsistent with the language of the specification alleging dereliction. It is 

our duty to correct this error. 

CONCLUSION 

Appellant’s conviction of The Specification of Charge III and Charge III are 

SET ASIDE and both The Specification of Charge III and Charge III are 

DISMISSED. The remaining findings of Guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and in accordance with the principles of United States v. Sales, 22 M.J. 305, 308 

(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 

2013), appellant’s sentence is AFFIRMED. 
VICK—ARMY 20180530 

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FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: