UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              MULLIGAN, FEBBO, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E1 ADEN J. SCHRADER
                            United States Army, Appellant

                                      ARMY 20150744

   Defense Language Institute Foreign Language Center and Presidio of Monterey
                  Jeffery Lippert, Military Judge (arraignment)
                     James Arguelles, Military Judge (trial)
        Lieutenant Colonel Tiernan Dolan, Staff Judge Advocate (pretrial)
      Lieutenant Colonel Daniel A. Tanabe, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA;
Captain Linda Chavez, JA (on brief).


                                         16 June 2017
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       In this appeal we address what happens when an accused is convicted of an
offense that everyone—the accused, the defense counsel, the trial counsel, the
military judge, and the staff judge advocate—believe he did not in fact commit.
The unsurprising answer is that we overturn the conviction for those offenses.

                                      BACKGROUND

       While appellant was assigned to the Presidio of Monterey, he used and
distributed a range of drugs to fellow soldiers and airmen to include marijuana,
cocaine, 3-4 methylenedioxymethamphetamine (“ecstasy”), amphetamine, and
SCHRADER—ARMY 20150744

hydromorphone. Among other charges, 1 appellant was charged with distributing
amphetamine and introducing amphetamine onto the Presidio of Monterey with the
intent to distribute. And, indeed, appellant thought he possessed amphetamine.
However, in fact, what he possessed was not amphetamine, but instead alprazolam, a
fact that became known to all parties by the time of trial. Nonetheless, appellant
pleaded guilty and was convicted of introducing and distributing amphetamine.

       Appellant’s belief was based on assurances of his drug dealer, “Ricky,” who
told appellant and another soldier that they were buying “Adderall.” 2 Adderall is
one of the brand names for the drug amphetamine. During an ensuing investigation,
appellant told an agent from the U.S. Army Criminal Investigation Division (CID)
that he bought Adderall pills from “Ricky,” brought them onto a military
installation, and distributed them. CID confiscated the remaining pills appellant
purchased from “Ricky.” A subsequent analysis by U.S. Army Criminal
Investigation Laboratory (USACIL) revealed the pills were not amphetamine, but
were actually alprazolam, a fact known by everybody well in advance of trial. 3

      Appellant, as a condition of his pretrial agreement with the convening
authority to plead guilty, entered into a stipulation of fact with the government. The
USACIL lab report identifying the pills seized by CID from appellant as alprazolam
was included as an attachment to the stipulation of fact admitted at trial.

       Throughout trial everyone acknowledged that appellant did not, in fact,
introduce or distribute amphetamine. During the providence inquiry, the military
judge questioned appellant extensively on the appellant’s actual knowledge
concerning the difference in the charged drug, amphetamine, and the drug identified
in the USACIL report, alprazolam. Based on the USACIL report, appellant

1
 A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of conspiracy to distribute a controlled substance; two specifications of
violation of a lawful general order; six specifications of use of a controlled
substance; three specifications of distribution of a controlled substance; and two
specifications of introduction of a controlled substance with intent to distribute in
violation of Articles 81, 92, and 112a of the Uniform Code of Military Justice, 10
U.S.C. §§ 881, 892 and 912a (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for forty-two months,
forfeiture of all pay and allowances, and a reduction to the grade of E-1. The
convening authority, in accordance with a pretrial agreement approved the adjudged
sentence except that portion of confinement exceeding twelve months.
2
    Amphetamine is a Schedule II controlled substance.
3
    Alprazolam is a Schedule IV controlled substance.

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SCHRADER—ARMY 20150744

acknowledged he actually purchased, distributed, and introduced alprazolam, even
though he initially thought he had acquired amphetamine from “Ricky.” However,
no one moved to amend the charges to conform them to the evidence or the
accused’s providence plea. Similarly, no one suggested that appellant may have
been guilty of attempted distribution of amphetamine and attempted introduction of
amphetamine with intent to distribute. Instead, appellant was convicted of the
introduction and distribution of a drug, amphetamine, which everybody agreed he
never possessed.

       Importantly, this is a distinction with a difference. The maximum sentence to
confinement for distribution or introduction of amphetamine with intent to distribute
was fifteen years. By contrast, the maximum sentence to confinement for
introduction and distribution of alprazolam, as a schedule IV controlled substance,
was ten years. Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 37e.
For appellant, the difference in the penalty landscape was a total of fifteen years
confinement. 4

                             LAW AND DISCUSSION

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
asserts that the Article 112a, UCMJ specifications charging distribution and
introduction of amphetamine are legally and factually insufficient. 5 Since appellant

4
 At trial, the government calculated 118 years as the maximum confinement
punishment.
5
  Appellant’s other assignment of error involves the dilatory post-trial processing of
appellant’s case. It took 239 days to complete a 215 page record of trial. Appellant
complained of excessive post-trial delay in his Rule for Courts-Martial 1105
[hereinafter R.C.M.] submissions. The post-trial processing included 123 days for
the military judge to authenticate the record of trial. The record contains no
explanation for the delay in authentication. However, we find no prejudice or due
process violation because of the delay. We find the sentence appropriate
notwithstanding the unjustified dilatory post-trial processing. UCMJ art. 66(c). See
generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); Moreno, 63
M.J. at 143; United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United
States v. Garman, 59 M.J. 677 (Army Cr. Crim. App. 2003). We have also
considered the matters personally asserted by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and conclude they do not warrant relief.
Among other matters raised in Grostefon, appellant asserts that his defense counsel
was ineffective by requesting a punitive discharge during sentencing. We do not

                                                                       (continued. . .)

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SCHRADER—ARMY 20150744

pleaded guilty to the specifications, we disagree with how the appellant framed the
legal issues on appeal.

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
However, since this was a guilty plea, the appellant has already admitted that he is in
fact guilty of the offenses. Therefore, the correct standard of review is actually
whether the military judge’s decision to accept appellant’s guilty plea was an abuse
of discretion. See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)
(citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). “[I]n reviewing a
military judge's acceptance of a plea for an abuse of discretion appellate courts apply
a substantial basis test: Does the record as a whole show “‘a substantial basis’ in law
and fact for questioning the guilty plea.” Id. (citing United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991)); see also UCMJ art. 45(a); Rule for Court-Martial
[hereinafter R.C.M.] 910(e). The basis for the rejection of a guilty plea must be
sufficient to overcome the notion that the plea waives any objection as to the factual
issue of guilt concerning the offense in question. R.C.M. 910(j).

       While we disagree with appellant’s framing of the issue on appeal, the result
is nonetheless the same. We agree there is a substantial basis in fact and law to
question appellant’s plea of guilty and set aside and dismiss those three
specifications. Inabinette, 66 M.J. at 322 (C.A.A.F. 2008). Simply put, as appellant
never agreed that he actually possessed amphetamine, and indeed he did not, he
cannot be guilty of that offense.

       The court-martial’s confusion likely stems from a misunderstanding of a
provision of the Dep’t of Army Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook] (10 Sep. 2014). As the military judge explained
and the government argues on appeal, it was not necessary that appellant “know the
exact identity of the controlled substance” as long as he knew the substance was
prohibited. See Benchbook, paras. 3-37-3d. n.3, 3-37-4d. n.5.

       As the Benchbook provides, an accused can possess contraband substance ‘A’,
incorrectly believing it to be contraband substance ‘B’ and still be found guilty of
possessing contraband substance ‘A.’ Id. However, in such a case the accused
actually possessed the substance he was charged with possessing. This instruction,


(. . . continued)
agree with appellant’s conclusion that the defense counsel actually or by implication
requested a punitive discharge. Furthermore, we note that appellant did not submit a
sworn affidavit or a declaration made under penalty of perjury for this court to
consider on appeal the statement that his defense counsel was ineffective. United
States v. Cade, 75 M.J. 923, 929 (Army Ct. Crim. App. 2016).

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SCHRADER—ARMY 20150744

however, does not apply to the facts of appellant’s case. Inexplicably, appellant
pleaded guilty to a drug he never actually possessed.

       We note that the government has not requested that we affirm a lesser-
included offense of an attempt to distribute and introduce amphetamine under
Article 80, UCMJ, with respect to Specifications 7, 9, and 11 of Charge IV. See
UCMJ art. 59(b); United States v. King, 71 M.J. 50, 51-53 (C.A.A.F. 2012); United
States v. LaFontant, 16 M.J. 236, 237-38 (C.M.A. 1983). In reviewing a finding of
guilty, the court “may approve or affirm, instead, so much of the finding as includes
a lesser included offense.” UCMJ art. 59(b) (emphasis added). However, given the
lack of a specific request by the government to correct the record and the many
missed opportunities to correct a known inconsistency before appeal, we are not
inclined to consider whether we could affirm the lesser-included offense of attempt
to distribute and introduce amphetamine on appeal.

                                  CONCLUSION
      Specifications 7, 9, and 11 of Charge IV are SET ASIDE and DISMISSED.
The remaining findings of guilty are AFFIRMED.
       Reassessing the sentence on the basis of the errors noted, the remaining
findings of guilty, and the aggravation evidence, which included two records of non-
judicial punishment imposed under Article 15, we are confident the military judge
would have sentenced appellant to no less than the convening authority’s approved
sentence of dishonorable discharge, confinement for twelve months, forfeiture of all
pay and allowances, and a reduction to the grade of E-1. See United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2014); United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986). The sentence is AFFIRMED. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are ordered restored.
      Senior Judge MULLIGAN and Judge WOLFE concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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