## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class MICHAEL S. JORGENSEN United States Army, Appellant

ARMY 20111094

Headquarters, Fort Riley Jeffery R. Nance, Military Judge
Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

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

27 July 2012

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SUMMARY DISPOSITION ON RECONSIDERATION

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KRAUSS, Judge:

A military judge, sitting as a special court-martia l empowered to adjudge a bad conduct discharge, convicted appellant, pursuant to his pleas, of one specification of absence wit hout leave, one specificati on of failing to go to appointed place of duty, on e specification of willfully disobeying a superior commissioned officer, and four specifications of wro ngful use of cocaine in violation of Articles 86, 90, and 112a Uniform Code of Mi litary Justice, 10 U.S.C. §§ 886, 890, 912a (2006 ) [hereinafter UCMJ]. The court-martial sentenced appellant
to a bad-conduct disc harge and confinement for 100 days. In accordance with a pretrial agreement, the convening authorit y approved only 3 mont hs confinement as well as the bad conduct discharge and cr edited appellant a total of 77 days for pretrial confinement, condi tions of confinement and illeg al pretrial punishment.

This case is before the court for review under Article 66, UC MJ. Appellant
submitted the case on it s merits and personally ra ised matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We have considered the record of
trial and the matter s submitted by appe llant pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982).JORGENSEN—ARMY 20111094

2 Pursuant to the ultimate offense doctrine and in light of the fact that breaking restriction can no longer be considered a lesser included o ffense of willfully disobeying a superior commissioned officer, despite pleadings sugg esting otherwise,
we find a substantial basis in law and fact to reje ct appellant’s plea to Charge II and its Specification.

Neither the stipulation of fact nor the providence inquiry at trial developed or
established sufficient facts to support a plea of gu ilty to a violation of Article 90 but rather merely establish the offe nse of breaking rest riction in violation of Article 134.
See United States v. Traxler , 39 M.J. 476 (C.M.A. 1994); United States v. Peaches

, 25 M.J. 364 (C.M.A. 1987); United States v. Bratcher , 39 C.M.R. 125 (C.M.A. 1969); United States v. Loos, 4 U.S.C.M.A. 478, 480–81, 16 C.M.R. 52, 54–55 (1954). In addition, the offe nse of breaking restriction can no longer be considered
a lesser included offense of disobeying a superior commissi oned officer so this court
is not free to substitute the former for the latter. See generally United States v.
Jones , 68 M.J. 465, 472 (C.A.A .F. 2010). Though the mi litary judge treated the offense as one of breaking restriction for sentencing pur poses, the prop er remedy is dismissal of the charge u nder the circumstances. See Id. at 472-73 and see, e.g. , United States v. Peaches , 25 M.J. 364 (C.M.A. 1987).

Therefore we find a substant ial basis in law and fact to reject appellant’s plea of guilty to Charge III a nd its Specification and disappr ove the finding of guilty.
See United States v. Inabinette , 66 M.J. 320 (C .A.A.F. 2008).

On consideration of the entire recor d, including considerat ion of the issues personally raised by th e appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we disapp rove the finding of guilty as to Charge II and its Specification, and find the re maining findings of guilty correct in la w and fact. Accordingly, Charge II and its Specificatio n are dismissed; the remaining findings of guilty are affirmed. Reas sessing the sentence on the basis of the error noted, the entire record, and in accordan ce with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A .A.F. 2006), to include the factors identified by Judg e Baker in his conc urring op inion in Moffeit

, the court affirms the sentence as approved by the convening authority.

Senior Judge JOHNSON an d Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: