## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, TELLITOCCI, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

S ergeant TIMOTHY J. RODRIGUEZ, SR.

United States Army, Appellant

ARMY 201 40466

Headquarte rs, 1st Infantry Division and Fort Riley

Jeffery Nance , Military Judge

Colonel Craig E. Merutka

, Staff Judge Advocate

For Appellant: Major M. Patrick Gordon, JA; Captain Heather L. Tregle , JA (on

brief).

For Appellee: Colonel John P. Carre l l, JA; Major A.G. Courie, III, JA; Captain

Janae M. Lepir , JA ; Captain Carrie L. Ward, JA (on brief).

30 April 2015

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

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

HAIGHT , Judge:

A military judge sitting as a general court

- martial convicted appellant,

pursuant to his pleas

, of one specifi cation of knowingly and wrongfully distributing

child pornography and one specification of knowingly and wrongfully possessing

child pornography, in violation of Article 134, Uniform Code of Military Justice, 10

U.S.C. § 934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad

conduct discharge, confinement for three years , and reduction to the grade of E

- 1.

The convening authority approved the sentence as adjudged.

This case is before us for rev iew pursuant to Article 66, UCMJ

. Appellant

raises one assignment of error which meri ts discussion and relief.RODRIGUEZ

— ARMY 20140466

2 Discussion

Appellant claims the military judge failed to elicit a sufficient factual basis to establish that appellant’s misconduct was prejudicial to good order and discipline in

the armed forces. We agree.

During the providence inquiry, when asked by the military judge how his

actions were prejudicial to good order and discipline, appellant responded that

military members should ac t with honor and integrity and should always do what is

right. While this nonresponsive answer may be laudable and accurate, it does not
indicate how appellant’s particular behavior caused a “ reasonably direct and

palpable injury to good order and discipl ine. ” United States v. Cendejas , 62 M.J.

334, 340 (C.A.A.F. 2005). Nor does the stipulation of fact, which, in relevant part,
merely states appellant believed the “morally repugnant nature of [appellant’s]

conduct would incite anger and physical violence amongst members of his unit.”

There was no discussion as to wh ether these possible reactions actually occurred.

C onclusion

We

, therefore, dismiss the language “ to the prejudice of good order and
discipline in the armed forces and” from both specifications. The findings of guilty

of Specifications 1 and 2 (as modified) and The Charge are AFFIRMED. After

consideration of the principles set forth by our superior c ourt in United States v.

Winckelmann , 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305

(C.M.A. 1986), we are able to reassess the sentence and the approved sentence is

AFFIRMED. All rights, privileges, and property of which appellant has been

deprived by virtue of those findings set aside by this decision are hereby ordered

restored.

Senior Judge COOK and Judge TELLITOCCI concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR. FOR THE COURT: