## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant MARTIN R. DURAN, JR. United States Army, Appellant

ARMY 20120049

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

For Appellant: Major Jacob D. Bashore, JA ; Captain Ian M. Guy, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain T. Campbell Warner, JA (on brief).

8 March 2013

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

--------------------------------

Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one specificat ion of failing to report to his appointed place of duty, one specification of failing to obey a lawful order, one specification of wrongfully distributing a controlled substance, and three specifications of wrongfully using a controlled substance, in violation of Arti cles 86, 92 , and 112a, Uniform Code of Military Just ice, 10 U.S.C. §§ 886, 892, 912a (200 6) [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge, confinement for thirty days, and reductio n to the grade of E-1. The convening authority approved the adjudged sentence.

In a footnote to hi s submission, appellant argues this court should disapprove the finding of guilty of the Specification of Addition al Charge III and Additional Charge III because the military judge failed to explain the elem ents of the charged offense, a violation of Ar ticle 92, UCMJ. Instead, th e military judge listed the elements of Article 91, UCMJ, disobeying an order from a noncom missioned officer. The government, in a footnote to its submission to this court, concedes the militaryDURAN—ARMY 20120049

2 judge, during the providence inquiry, listed the elements for Article 91, UCMJ, but argues such an erro r does not require reversal of Additional Char ge III and its Specification.

For this Court to find a pl ea of guilty to be knowin g and voluntar y, the record
of trial “must reflect” that the elements of “each offense charged have been explained to the accused” by the military judge. United States v. Care , 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247 (1969). If the military judge fails to do so, he commits reversible error, unless “it is cl ear from the entire reco rd that the accused knew the elements, admitted them freely, an d pleaded guilty because he was guilty.”
United States v. Redlinski , 58 M.J. 117, 119 (C.A .A.F. 2003) (quoting United States v. Jones, 34 M.J. 270, 272 (C.M.A . 1992)). Rather than focusing on a technical listing of the elements of an offense, this court looks at the co ntext of the entire
record to determine whether an accused is aware of the elements, either explicitly or inferentially. Jones , 34 M.J. at 272; United States v. Pretlow , 13 M.J. 85, 88 (C.M.A.1982); United States v. Kilgore , 21 U.S.C.M.A. 35, 44 C. M.R. 89 (1971). In considering the adequacy of appellant’s gu ilty plea, we are char ged with reviewing
the entire record and “will not overturn th e acceptance of a gui lty plea unless there
is a ‘substantial basis in law and fact for’ doing so.” United States v. Barton , 60 M.J. 62, 64 (C.A.A .F. 2004) (quoting United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991).

In reviewing the entire record, it is clear the mi litary judge explained the elements of an Article 92, UCMJ, offense. In explaining the elements of an Article 91, UCMJ, violation, the military judge me rely added additional elements to appellant’s charged violation of Article 92, UCMJ. This eventuality is expected because failure to obey a lawful order is a lesser-included offe nse of disobeying a
noncommissioned officer. See United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010);
United States v. Rauscher , 71 M.J. 225 (C.A.A.F. 2012); United States v. Alston , 69 M.J. 214 (C.A.A.F. 2010). Consequently, it is clear appellant un derstood the elements of the charged offense and the mi litary judge ensured an adequate factual predicate was established to support appellant’s plea of gu ilty to Additional Charge III and its specification.

Other than alleging the mi litary judge failed to corre ctly advise appellant of an Article 92, UCMJ, violatio n, a proposition we have rejected, ap pellant does not otherwise allege error. We ultimately find there is not a subs tantial basis in law and fact to question appellant’s plea of guil ty to an Article 9 2, UCMJ, violation in Additional Charge III and its specification. See Prater , 32 M.J. at 4 36.

CONCLUSION

On consideration of the entire record and the submissions of the parties, we hold the findings of gu ilty and the sentence, as approv ed by the conv ening authorityDURAN—ARMY 20120049

3 are correct in law and fact. Accordingly, the findings of gu ilty and sentence are
AFFIRMED.

FOR THE COURT:

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

Clerk of Court FOR THE COURT: