UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, HERRING, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class 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. Seitsinger, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Payum Doroodian, JA (on brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Scott L. Goble, JA; 

Captain John Gardella, JA (on brief). 

11 August 2016 

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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 conspiracy to obstruct justice, false official statement, and 

sexual assault in violation of Articles 81, 107, and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 881, 907, 934 (2012) [hereinafter UCMJ]. The military judge 

sentenced appellant to be discharged with a dishonorable discharge, to be confined 

for six years, and to be reduced to the grade of E-1. The convening authority 

approved only so much of the adjudged sentence as provides for a dishonorable 

discharge, confinement for twenty-three months and fifteen days, and reduction to 

the grade of E-1.*

 

*

 The pretrial agreement capped confinement to two years, 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. Appellant raises 

one assignment of error that we find has no merit. 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, appellant was charged with conspiring to 

obstruct justice in violation 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 justice in violation of 

Article 134, and in order to effect the object of the 

conspiracy the said PFC Alvin 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 Specification of Charge I, in exchange 

for a cap on his sentence to confinement. In accordance with this pretrial 

agreement, appellant entered into a stipulation of fact. 

During the providence inquiry, the military judge advised appellant of the 

elements for the Specification of Charge I, including the underlying elements of 

Article 134 offense of obstruction of justice, to include the terminal elements that 

the conduct was to the prejudice of good order and discipline or was of a nature to 

bring discredit upon the armed forces. 

The military judge questioned appellant regarding this conduct: 

MJ: So, at this time . . . I want you to tell me why you are 

guilty of the offense in The Specification of Charge I, and 

that is, the offense of conspiracy. . . 

ACC: Ma’am, on or about 10 February 2013, on Fort Sill 

where I was assigned to the 15th Transportation Company, 

100th 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 and we expected an investigation. We 
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agreed to tell the investigators 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 prejudicial 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 investigator because that was the plan 

we had came up with. 

 Following appellant’s unsolved crime comment, the military judge did not 

seek any additional information relating to why appellant believed his conduct was 

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

 The stipulation of fact in this case is conclusory with regards to the terminal 

element of the underlying Article 134, UCMJ, offense of obstruction of justice. 

 Based on the military judge’s questions and the appellant’s responses, the 

military judge found appellant’s plea to this offense provident and accepted it. We 

find a substantial basis in law and fact to question the plea and take appropriate 

action in our decretal paragraph to correct this issue. 

LAW AND DISCUSSION 

In his Grostefon matters, appellant alleges there is a substantial basis in law 

and fact to question the providence of his plea of guilty to the Specification of 

Charge I. Specifically, appellant argues the military judge failed to establish an 

adequate factual predicate to support the terminal element in this case. 

We review a military judge’s acceptance 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 regard to the factual basis or the law, that 

would raise a substantial question regarding the appellant's guilty plea.” Id. 

“The military judge shall not accept a plea of guilty without making such 

inquiry of the accused as shall satisfy the military judge that there is a factual basis 

for the plea.” In order to establish an adequate factual predicate for a guilty plea, 

the military judge must elicit “factual circumstances as revealed by the accused 

himself [that] objectively support that plea[.]” United States v. Davenport, 9 M.J. 

364, 367 (C.M.A. 1980). It is not enough to elicit legal conclusions; 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 must 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 military trial judge . . . whether the acts or 
FOGLE—ARMY 20140534 

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the omissions of the accused constitute the 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 fundamental requirement of a plea inquiry under Care and Rule for 

Courts-Martial (R.C.M.) 910 “involves a dialogue in which the military judge poses 

questions about the nature of the offense and the accused provides answers that 

describe his personal understanding of the criminality of his or her conduct.” United 

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

“‘To the prejudice of good order and discipline’ refers only to acts directly 

prejudicial to good order and discipline and not to acts 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 reasonably direct and palpable.” Id. See also United States 

v. Perez, 33 M.J. 1050, 1054 (C.M.R. 1991). 

As a matter of law, conspiracy to obstruct justice could very well constitute 

an offense amounting to conduct prejudicial to good order and discipline and of such 

a nature to bring discredit upon the armed forces. Based on the totality of the 

providence inquiry, however, we are not confident the exchange with appellant 

established a personal understanding of how he believed his actions met these 

elements. This court, therefore, concludes appellant’s plea of guilty to this offense 

was improvident. 

CONCLUSION

The finding of guilty to the Specification of Charge I is set aside. We 

AFFIRM the remaining findings of guilty. 

In determining whether we can reassess the sentence, 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 this case, we are confident that reassessment is 

appropriate. First we look to the penalty landscape. The maximum punishment is 

reduced from forty years to thirty-five years. Second, appellant was tried by a 

military judge and we have experience dealing with similar cases. We are confident 

we can discern what punishment a military judge would have adjudged in this case. 

Third, the gravamen of the criminal conduct included within the original offenses 

remains substantially the same. Neither the penalty landscape nor the admissible 

aggravation evidence has significantly changed. 

 Reassessing the sentence based on the noted error and the remaining findings 

of guilty, we AFFIRM the sentence approved by the convening authority. We find 

this reassessed sentence is not only purged of any error but is also appropriate. All 

rights, privileges, and property, of which appellant has been deprived by virtue of 
FOGLE—ARMY 20140534 

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that portion of the findings set aside by this decision, are ordered restored. See 

Articles 58b(c) & 75(a), UCMJ. 

Judge HERRING and Judge PENLAND concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: