UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Staff Sergeant ALLEN D. CHESTNUT

United States Army, Appellant

ARMY 20120612

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill

Gregory A. Gross, Military Judge

Colonel Jeffery D. Pedersen, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Captain Robert Feldmeier, JA (on 

brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).

31 October 2013

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SUMMARY DISPOSITION

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Per Curiam:

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

consistent with his pleas, of one specification of assault with a dangerous weapon, 

thirteen specifications of bribery, six specifications of making a false official 

statement, and two specifications of attempted bribery in violation of Articles 80, 

107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 907, 928

and 934 (2006) [hereinafter UCMJ]. The convening authority approved the adjudged 

sentence of a bad-conduct discharge, confinement for forty-four months, forfeiture 

of all pay and allowances, reduction to the grade of E-1, and a fine of $2500.00. 

The convening authority awarded appellant 138 days of confinement credit. 

The case is now before this court for review under Article 66, UCMJ. 

Appellant submitted a merits pleading to this court and personally raised matters 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find those 

matters raised by appellant are without merit. However, one issue warrants 

discussion but no relief.
CHESTNUT—ARMY 20120612

2

LAW AND DISCUSSION

Appellant was charged with fifteen specifications of asking for and receiving 

bribes under Article 134, UCMJ.1 Consistent with Rule for Court-Martial 307(c)(3), 

each of these specifications contained a brief statement of the essential facts 

constituting the respective offense and expressly alleged every element. However, 

when drafting the specifications, the government elected to use the following 

language to address the terminal element for each specification: “such conduct being 

to the prejudice of good order and discipline in the armed forces and/or of a nature 

to bring discredit upon the armed forces.” (emphasis added.)

Pursuant to a pretrial agreement, appellant pleaded guilty to thirteen of the 

fifteen bribery specifications. At the outset of the providence inquiry, the military 

judge listed the elements of bribery, including that “under the circumstances, your 

conduct was to the prejudice of good order and discipline in the armed forces and or

of a nature to bring discredit upon the armed forces. ” (emphasis added). A 

stipulation of fact addressed both theories of the terminal element and established 

that appellant’s conduct giving rise to the bribery offenses was both prejudicial to 

good order and discipline and service discrediting. This stipulation of fact and the 

colloquy with the military judge satisfied the providency requirement. See United 

States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

The government’s use of “and/or” in the Article 134, UCMJ, specifications 

appears to be a combination of a disjunctive and conjunctive pleading. This court, 

among others, has highlighted the inherent problems in the use of disjunctive 

pleadings. See United States v. Crane, ARMY 20080469, 2009 WL 6832590 at *1 

(Army Ct. Crim. App. 18 Aug. 2009) (mem. op.) (disjunctive pleadings are “strongly 

discourage[d]” and “serve no discernible purpose and unnecessarily create avoidable 

appellate issues”); United States v. Woode, 18 M.J. 640, 642 (N.M.C.M.R. 1984) 

(alleging an intent to use “and/or” distribute cocaine was fatally defective); United 

States v. Autrey, 30 C.M.R. 252, 254 (C.M.A. 1961) (use of “and/or” is an 

“abominable combination of a conjunctive and a disjunctive [which] means either 

‘and’ or ‘or’. . . [and] [i]ts use has led to judicial lament ove r the inability of 

drafters to state the terms of legal documents in plain English”).

However, despite this problematic pleading, under the unique facts of this 

case the error is not fatal, and appellant is entitled to no relief. First, in the case of 

a guilty plea, we will “view the specification with maximum liberality.” United 

1

Each specification was modeled largely after the example provided in the Manual 

for Courts-Martial. Manual for Courts-Martial, United States (2012 ed.)

[hereinafter MCM], pt. IV, ¶66.b. However, the sample specification in the MCM 

does not include the terminal element.
CHESTNUT—ARMY 20120612

3

States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (internal quotations and citation 

omitted). “A counseled plea of guilty is an admission of factual guilt so reliable 

that, where voluntary and intelligent, it quite validly removes the issue of factual 

guilt from the case.” Id. at 33 (quoting Menna v. New York, 423 U.S. 61, 62 n. 2 

(1975)). Further, while charging in the disjunctive is disfavored, it does not render a 

specification under Article 134 fatally defective. See United States v. Miles, 71 M.J. 

671, 673 (N.M. Ct. Crim. App. 2012). It has been exhaustively clarified that the 

phrase “prejudicial to good order and discipline or of a service-discrediting nature” 

merely pleads two different theories of liability for a singular terminal element 

under which an accused can be found guilty of but one offense. See United States v. 

Medina, 66 M.J. 21 (C.A.A.F. 2006).

Here, appellant was apprised of the elements of the offense of bribery by the 

military judge, including the definitions and explanation of the terminal element. 

Appellant freely admitted that his conduct satisfied the terminal element. Also, the 

stipulation of fact thoroughly addressed both Clauses 1 and 2 and plainly established 

that his conduct satisfied both. 

CONCLUSION

On consideration of the entire record and submissions of the parties, we hold 

the findings of guilty and the sentence as approved by the convening authority are 

correct in law and fact. Accordingly, the findings of guilty and the sentence are 

AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: