UNITED STATES ARMY COURT 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: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain T. Campbell Warner, JA (on brief). 

 

8 March 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

A military judge sitting as a special court-martial convicted appellant, 

pursuant to his pleas, of one specification 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 Articles 86, 92, and 112a, 

Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892, 912a (2006) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for thirty days, and reduction to the grade of E-1. The convening 

authority approved the adjudged sentence. 

In a footnote to his submission, appellant argues this court should disapprove 

the finding of guilty of the Specification of Additional Charge III and Additional 

Charge III because the military judge failed to explain the elements of the charged 

offense, a violation of Article 92, UCMJ. Instead, the military judge listed the 

elements of Article 91, UCMJ, disobeying an order from a noncommissioned officer. 

The government, in a footnote to its submission to this court, concedes the military 
DURAN—ARMY 20120049 

2 

judge, during the providence inquiry, listed the elements for Article 91, UCMJ, but 

argues such an error does not require reversal of Additional Charge III and its 

Specification. 

 

For this Court to find a plea of guilty to be knowing and voluntary, 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 clear from the entire record that the accused 

knew the elements, admitted them freely, and 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 context 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 guilty plea, we are charged with reviewing 

the entire record and “will not overturn the acceptance of a guilty 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 military judge explained the 

elements of an Article 92, UCMJ, offense. In explaining the elements of an Article 

91, UCMJ, violation, the military judge merely 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 offense 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 understood the 

elements of the charged offense and the military judge ensured an adequate factual 

predicate was established to support appellant’s plea of guilty to Additional Charge 

III and its specification. 

 

 Other than alleging the military judge failed to correctly advise appellant of 

an Article 92, UCMJ, violation, a proposition we have rejected, appellant does not 

otherwise allege error. We ultimately find there is not a substantial basis in law and 

fact to question appellant’s plea of guilty to an Article 92, UCMJ, violation in 

Additional Charge III and its specification. See Prater, 32 M.J. at 436. 

CONCLUSION 

On consideration of the entire record and the submissions of the parties, we 

hold the findings of guilty and the sentence, as approved by the convening authority 
DURAN—ARMY 20120049 

3 

are correct in law and fact. Accordingly, the findings of guilty and sentence are 

AFFIRMED. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                          

Clerk of Court

FOR THE COURT: