## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s ALVIN J. FOGLE United States Army, Appellant

ARMY 20140534

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill Rebecca K. Connally, Military Judge Colonel Mark W. Seitsing er, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Payum Doroodia n, JA (on brief).

For Appellee: Li eutenant Colonel A.G. Courie III , JA; Major Scott L. Goble, JA; Captain John Gardella, JA (on brief).

11 August 2016

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

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CAMPANELLA, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of conspira cy to obstruct justice, fa lse official statement, and

sexual assault in vi olation of Articles 81, 107, an d 134, Uniform Co de of Military Justice, 10 U.S.C. §§ 881, 907, 934 (2 012) [hereinafter UCMJ]. The military judge sentenced appellant to be discharged with a dishonorable discharge, to be confined for six years, and to be re duced to the grade of E-1. The conven ing authority approved only so much of the adjudged sentence as provides for a dishonorable discharge, confinement for twenty-three m onths and fifteen days , and reduction to the grade of E-1. *

* The pretrial agreement ca pped confinement to two ye ars, however, the convening authority provided appellant fifteen days confinement relief for dilatory post-trial processing.FOGLE—ARMY 20140534

2 This case is before us for review under Article 66, UCMJ. Appe llant raises one assignment of error that we find has no me rit. Appellant raises two matters

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), one of which

merits discussion and relief.

BACKGROUND

In the Specification of Charge I, ap pellant was charged wi th conspiring to obstruct justice in vi olation of Article 81, UCMJ. The specification alleged:

In that [appellant], did, at or near Fort Sill, Oklahoma, between 8 February 2013 and about 15 February 2013, conspire with PV2 Jonathan M. Bears and SPC Josbel M.

Herrera to commit an offense under the Uniform Code of Military Justice, to wit: obstructing ju stice in violation of Article 134, and in order to effect the object of the conspiracy the said PFC Alvi n J. Fogle, PV2 Jonathon M. Bears, and SPC Josbel M. Herrera did knowingly give

false statements to Criminal Investigation Command, Fort Sill, Oklahoma.

Prior to trial, appellant entered into a pretrial agreement wherein he agreed to plead guilty to certain offenses , including the Spec ification of Charge I, in exchange for a cap on his sentence to confinement. In acco rdance with this pretrial agreement, appellant entered into a stipulation of fact.

During the providence in quiry, the military judge advised appellant of the elements for the Specification of Charge I, including the unde rlying elements of

Article 134 offense of obstruction of justice, to includ e the terminal elements that the conduct was to the prejud ice of good order and disciplin e or was of a nature to bring discredit upon the armed forces.

The military judge qu estioned appellant re garding this conduct:

MJ: So, at this time . . . I want you to tell me why you are guilty of the offense in The Sp ecification of Charge I, and that is, the offense ofconspiracy. . .

ACC: Ma’am, on or about 10 February 2013, on Fort Sill where I was assigned to the 15 th Transportation Company,

100 th BSB, 75 Fires Brigade, I talked to PV2 Bears and Specialist Herrera regarding what we did with Ms. [LG] on or about February 8th 2013. We knew that something had been reported an d we expected an in vestigation. WeFOGLE—ARMY 20140534

3 agreed to tell the investigator s that we never had sex with Ms. [LG], there was [sic] no videos that were made, and

that we were all in separate places at that time. I knew

that if I lied I would be— it would be prej udicial to good order and discipline because I was misleading so that a crime would go unsolved . When I was interviewed by CID, I lied to the investigat or because that was the plan we had came up with.

Following appellant’s unsolved crime comment, the military judge did not seek any additional informat ion relating to why appell ant believed his conduct was

of a nature to bring discredit upon the armed forc es or was service discrediting.

The stipulation of fact in this case is conclusory with rega rds to the terminal element of the underlying Ar ticle 134, UCMJ, offense of obstruction of justice.

Based on the military ju dge’s questions and the appellant’s responses, the military judge found appellant’s plea to th is offense provident a nd accepted it. We

find a substantial basi s in law and fact to question the plea and take appropriate action in our decretal paragr aph to correct this issue.

LAW AND DISCUSSION

In his Grostefon matters, appellant a lleges there is a subs tantial basis in law and fact to question the pr ovidence of his pl ea of guilty to th e Specification of Charge I. Specifically, appellant argues the military judge fail ed to establish an adequate factual predicate to support the terminal element in this case.

We review a military judge’s acceptanc e of an accused’s guilty plea for an

abuse of discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply the substantial basis test, looking at whether there is something in the record of trial, with rega rd to the factual basis or the law, that

would raise a substa ntial question regard ing the appellant' s guilty plea.” Id

.

“The military judge shall not accept a plea of gu ilty without making such inquiry of the accused as shall satisfy the m ilitary judge that there is a factual basis for the plea.” In order to establish an adequate factual predic ate for a guilty plea, the military judge must elic it “factual circumstances as revealed by the accused himself [that] objectivel y support that plea[.]” United States v. Davenport , 9 M.J. 364, 367 (C.M.A. 1980). It is not enough to el icit legal conclusi ons; the military judge must elicit facts to support the plea of guilty. United States v. Outhier , 45 M.J. 326, 331 (C.A.A.F. 1996). The record of trial mu st reflect not only that the elements of each offense charged have been explained to the accused, but also “make clear the basis for a determination by the mili tary trial judge . . . whether the acts orFOGLE—ARMY 20140534

4 the omissions of the accused constitute th e offense or offenses to which he is pleading guilty.” United States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). The fu ndamental requirement of a plea inquiry under Care and Rule for Courts-Martial (R.C.M.) 910 “involves a di alogue in which the m ilitary judge poses questions about th e nature of the offense and the accused provides answers that describe his personal underst anding of the criminality of his or her conduct.” United

States v. Medina , 72 M.J. 148, 149 (C .A.A.F. 2013) (interna l citations omitted).

“‘To the prejudice of good order and discipline’ re fers only to acts directly prejudicial to go od order and discipline and not to ac ts which are prejudicial only in

a remote or indirect sense. . . this article does not include distant effects.” Manual for Courts-Martial

, United States (2012 ed.)[hereinafter MCM ], pt. IV, ¶ 60.c.2.a. “The prejudice must be reason ably direct and palpable.” Id

. See also United States

v. Perez , 33 M.J. 1050, 1 054 (C.M.R. 1991).

As a matter of law, conspi racy to obstruct justice could very well constitute an offense amounting to conduct prejudicial to go od order and discip line and of such a nature to bring di scredit upon the armed forces. Based on the totality of the providence inquiry, ho wever, we are not confident the exchange with appellant established a person al understanding of how he believed his acti ons met these elements. This court, therefore, concludes appellant’s plea of gu ilty to this offense was improvident.

CONCLUSION

The finding of guilty to the Specificati on of Charge I is set aside. We AFFIRM the remaining findings of guilty.

In determining whether we can reassess the sent ence, we apply several nonexhaustive factors provided by our superior count in United States v.

Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations omitted). Applying these factors to th is case, we are confiden t that reassessment is appropriate. First we look to the penalty landscape. The maximum punishment is reduced from forty years to thirty-five ye ars. Second, appella nt was tried by a military judge and we have experience dealing with simila r cases. We are confident we can discern what punishment a military ju dge would have adjudg ed in this case. Third, the gravamen of the criminal conduct included wi thin the origin al offenses remains substantially the sa me. Neither the penalty la ndscape nor th e admissible aggravation evidence has si gnificantly changed.

Reassessing the sentence based on the noted error and the remaining findings of guilty, we AFFIRM the se ntence approved by the conv ening authorit y. We find

this reassessed se ntence is not only purged of any er ror but is also appropriate. All rights, privileges, and property, of which appellant has been deprived by virtue ofFOGLE—ARMY 20140534

5 that portion of the findings set aside by this decision, are ordered restored. See Articles 58b(c) & 75(a), UCMJ.

Judge HERRING and Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: