UNITED STATES ARMY COURT 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: Lieutenant 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-martial empowered to adjudge a 

bad conduct discharge, convicted appellant, pursuant to his pleas, of one 

specification of absence without leave, one specification of failing to go to 

appointed place of duty, one specification of willfully disobeying a superior 

commissioned officer, and four specifications of wrongful use of cocaine in 

violation of Articles 86, 90, and 112a Uniform Code of Military Justice, 10 U.S.C. 

§§ 886, 890, 912a (2006) [hereinafter UCMJ]. The court-martial sentenced appellant 

to a bad-conduct discharge and confinement for 100 days. In accordance with a 

pretrial agreement, the convening authority approved only 3 months confinement as 

well as the bad conduct discharge and credited appellant a total of 77 days for 

pretrial confinement, conditions of confinement and illegal pretrial punishment. 

This case is before the court for review under Article 66, UCMJ. Appellant 

submitted the case on its merits and personally raised matters pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have considered the record of 

trial and the matters submitted by appellant 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 offense of willfully 

disobeying a superior commissioned officer, despite pleadings suggesting otherwise, 

we find a substantial basis in law and fact to reject 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 guilty to a violation of Article 90 but 

rather merely establish the offense of breaking restriction 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 offense of breaking restriction can no longer be considered 

a lesser included offense of disobeying a superior commissioned 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 military judge treated the 

offense as one of breaking restriction for sentencing purposes, the proper remedy is 

dismissal of the charge under 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 substantial basis in law and fact to reject appellant’s plea 

of guilty to Charge III and its Specification and disapprove the finding of guilty. 

See United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008). 

On consideration of the entire record, including consideration of the issues 

personally raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982), we disapprove the finding of guilty as to Charge II and its 

Specification, and find the remaining findings of guilty correct in law and fact. 

Accordingly, Charge II and its Specification are dismissed; the remaining findings 

of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the 

entire record, and in accordance 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 Judge Baker in his concurring opinion in Moffeit, 

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

Senior Judge JOHNSON and Judge BURTON concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                        

Clerk of Court

FOR THE COURT: