UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                               Before the Court Sitting En Banc 1

                             UNITED STATES, Appellee
                                         v.
                          Private E1 BRYCE M. PHILLIPS
                           United States Army, Appellant

                                       ARMY 20120585

                            Headquarters, Fort Carson
                   Mark A. Bridges, Military Judge (arraignment)
                      Craig S. Denney, Military Judge (trial)
                   Colonel John S. Irgens, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Robert N. Michaels, JA (on brief) .

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA;
Captain Jessica J. Morales, JA (on brief).


                                       31 January 2014

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                   OPINION OF THE COURT ON RECONSIDERATION
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LIND, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave, one
specification of willfully disobeying a superior commissioned officer, and one
specification of wrongful use of cocaine, in violation of Articles 86, 90, and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890, and 912a [hereinafter
UCMJ]. Appellant was sentenced to a bad-conduct discharge and confinement for
nine months. The convening authority approved the sentence adjudged and credited
appellant with sixty-two days of confinement credit for pretrial confinement.




1
  Senior Judge YOB took action in this case prior to his permanent change of duty
station.
PHILLIPS—ARMY 20120585

      Appellant’s case is now pending review before this Court pursuant to Article
66, UCMJ. 2 Appellant’s sole assignment of error is that the military judge erred by
not applying the “ultimate offense” doctrine , and, therefore, improperly convicted
him of the Additional Charge and its Specification, willful disobedience of an order.
We disagree.

                                       FACTS

       Appellant was absent without leave (AWOL) from his Fort Carson unit from
on or about 8 November 2010 until on or about 2 March 2012, when he was sent
back to Fort Carson following incarceration due to civilian convictions. When
appellant went AWOL, he was pending trial by court-martial scheduled to be held on
8 November 2010. In his stipulation of fact, appellant admits that o ne reason he left
was to impede those criminal proceedings. On 14 March 2012, ap pellant’s company
commander, Captain (CPT) PE, ordered appellant to remain on the Fort Carson
installation. Captain PE personally conveyed this order to appellant in the form of a
written counseling statement. Appellant acknowledged his understanding of the
order with his signature. On or about 11 Apr il 2012, appellant disobeyed CPT PE’s
order by driving off the Fort Carson installation to visit his girlfriend. 3 At his
subsequent court-martial, appellant was charged with willfully disobeying an order
for this misconduct (The Additional Charge and its Specification).

                                    DISCUSSION

       Appellant pleaded guilty at trial to the Additional Charge and its Specification
as a violation of Article 90, UCMJ . Appellant now argues this was in error because
the ultimate offense for this misconduct was breaking restriction. Appellant further
contends that the government’s decision to charge this offense as willfully
disobeying a superior commissioned officer exaggerated his criminality. 4 Article 90,
UCMJ, carries a maximum sentence of a dishonorable discharge, confinement for

2
 An appellate panel initially rendered a decision in this case, however, upon motion
of the government, this court granted both the motion for reconsideration and the
suggestion for en banc consideration.
3
  In the stipulation of fact, appellant admits to persistently and willfully disobeying
CPT PE’s lawful command not only by leaving post on several occasions but also by
residing off-post.
4
  This was a special court-martial in which the jurisdictional maximum punishment
was reached by other offenses to which appellant pleaded guilty. Appellant
recognizes the Article 90, UCMJ, charge did not increase his maximum punishment
exposure, but argues it exaggerated his criminality thereby enabling trial counsel to
argue for a harsher sentence.


                                           2
PHILLIPS—ARMY 20120585

five years, total forfeiture of all pay and allowances , and a reduction to the grade of
E-1. 5 Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt.
IV, ¶ 14.e(2); Rule for Courts-Martial [hereinafter R.C.M.] 1003(b)(4). Breaking
restriction is an offense under Article 134, UCMJ , and it carries a maximum
sentence of confinement of one month, forfeiture of two-thirds pay per month for
one month, and reduction to the grade of E-1. MCM, pt. IV, ¶ 102.e; R.C.M.
1003(b)(4).

       We do not find issue with either the charging decision or the plea. There is
nothing in the record that gives any indication the commander’s intent in giving this
order was to escalate the criminal liability of appellant. See United States v.
Landwehr, 18 M.J. 355, 356-57 (C.M.A. 1984) (“[A]n order given solely for the
purpose of increasing the punishment for not performing a pre -existing duty should
not be made the grounds of an Article 90 violation . . . .”) . To the contrary, it
appears prudent for CPT PE to have issued such an order given appellant’s prior
history of absenting himself while pending disciplinary action . Under the facts of
this case, either Article 90, UCMJ, or Article 134, UCMJ (breaking restriction) ,
were viable offenses properly chargeable by the government, assuming the
government had evidence of the terminal element (conduct prejudicial to good order
and discipline in the armed forces or of a nature to bring discredit upon the armed
forces) for a breaking restriction charge. This Court may not prescribe which one
the government should charge when there is a legal and factual basis for both. 6 See
United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (“This Court has long
recognized that when an act violates more than one criminal statute, the Government
may prosecute under either so long as it does not discriminate against any class of
defendants.”).

5
 Here, at a special court-martial, for a violation of Article 90, UCMJ, the most
severe punitive discharge appellant could have received was a bad -conduct
discharge, the maximum sentence to confinement was one year, and adjudged
forfeitures could not have exceeded two -thirds pay per month for twelve months.
R.C.M. 201(f)(2)(B)(i).
6
  We note that had the government decided not to prosecute this conduct under a
theory of willful disobedience, there would have been no legal obstacle to charging
this under the lesser-included offense of failure to obey an order, Article 92, UCMJ.
See United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009). In other words, we do
not believe that the Presidentially-defined offense of breaking restriction under
Article 134, UCMJ, somehow preempts the statutory offenses of disobedience found
in Articles 90, 91, and 92, UCMJ. MCM, pt. IV, ¶ 60.c(5)(a); Landwehr, 18 M.J.
355. The appropriate maximum punishment in those cases of disobedience that also
satisfy other offenses is an altogether different question. See United States v.
Quarles, 1 M.J. 231 (C.M.A. 1975). See also United States v. Hargrove, 51 M.J.
408, 409 n.2 (C.A.A.F. 1999).


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PHILLIPS—ARMY 20120585

       During the providence inquiry, the military judge correctly advised appellant
of the elements of the offense of willful ly disobeying an order of a superior
commissioned officer, and that “willful disobedience” means an intentional defiance
of authority. Appellant admitted that the elements and definitions described what he
did. In particular, he admitted that he was given a lawful command from CPT PE,
his superior commissioned officer, that he understood the command, and that he
made the decision to violate the command knowingl y and voluntarily. Furthermore,
when asked by the military judge why he was guilty of the offense, appellant stated:
“Because I was residing off post when I was clearly given a command to stay on
post and not break restriction.” (emphasis added).

        The providence inquiry and the stipulation of fact establish that CPT PE
exercised the full authority of his office when issuing the order. Unlike in
Hargrove, 51 M.J. 408, where the company commander informed the appellant of his
restriction, but left the scope of the restriction to subordinates, here CPT PE
personally conveyed the order to appellant in writing and had appellant sign an
acknowledgement. Although the military judge did not expressly ask appellant
whether CPT PE gave the order with “the full authority of his office” intending to
“lift [the duty to remain within certain limits] above the common ruck,” United
States v. Loos, 4 U.S.C.M.A. 478, 480-81, 16 C.M.R. 52, 54-55 (1954), the facts
admitted by appellant in his providence inquiry and stipulation of fact demonstrate
CPT PE gave the order “with the full authority of his office.” Appellant knew this
and intentionally defied CPT PE’s authority. Because the elements were met for
willful disobedience under Article 90, UCMJ, this charge was not preempted by
Article 134, UCMJ (breaking restriction), nor was there a requirement during the
providence inquiry to distinguish between the se two offenses. 7

       We find the record as a whole does not provide a substantial basis in law and
fact to reject appellant’s plea of guilty to willful ly disobeying an order of a superior
commissioned officer, in violation of Article 90, UCMJ. See United States v.
Inabinette, 66 M.J. 320 (C.A.A.F. 2008).




7
  The dissenting opinions insist that we are either abolishing or ignoring any
distinction between willful disobedience and breaking restriction. We do neither.
The distinction is elemental. Willful disobedience requires an intentional defiance of
authority while breaking restriction merely requires going beyond the limits of the
restriction before being released therefrom by proper authority. MCM, pt. IV, ¶
102.b(5). We find the facts of this case, as admitted to by appellant, meet the
elements of willful disobedience. That the same facts may also satisfy the elements
of breaking restriction is irrelevant to the sufficiency of appellant’s plea.


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PHILLIPS—ARMY 20120585

                                   CONCLUSION

      On consideration of the entire record, we hold the findings of guilty and
sentence as approved by the convening authority correct in law and fact.
Accordingly, those findings of guilty and the sentence ar e AFFIRMED.

      Chief Judge PEDE, Senior Judge KERN, Senior Judge COOK, Judge
CAMPANELLA, Judge ALDYKIEWICZ, Judge MARTIN, and Judge HAIGHT
concur.

YOB, Senior Judge, concurring in part and dissenting in part:

      I also concur in part and dissent in part with the majority opinion, for reasons
consistent with those expressed in Judge Krauss’s opinion.

       As the majority opinion acknowledges by favorably citing the standard
articulated in United States v. Loos, 4 U.S.C.M.A. 478, 16 C.M.R. 52 (1954),
military courts have long recognized a distinction between the offenses of breaking
restriction, a violation of Article 134, UCMJ, and willful disobedience of a superior
commissioned officer, which falls under Article 90, UCMJ. Both offenses have
elements requiring proof that the accused violated an order from a person who was
authorized to issue that order. However, in cases where the order directs a soldier to
remain within certain limits, a violation of the order would constitute the offense of
breaking restriction, unless there is some form of proof or admission that the order
was given with the “full authority of [the commander’s] office” intending to “lift
[the duty to remain within certain limits] above the common ruck.” Id. at 54, 16
C.M.R. at 480.

       Willful disobedience and breaking restriction are qualitatively different
crimes within the spectrum of military offenses. Willful disobedience carries a
possible maximum punishment of confinement that is sixty times greater than the
maximum punishment of confinement under breaking restriction. Manual for
Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶¶ 14.e(2),
102.e. On top of that, willful disobedience offenses can result in the impos ition of
a punitive discharge, while breaking restriction does not authorize any such
punishment. MCM, pt. IV, ¶¶ 14.e(2), 102.e. The punishment that could result
from a conviction for willful disobedience is far more severe even than the
punishment authorized for escape from pretrial confinement (charged pursuant to
Article 95, UCMJ, when a person who is lawfully ordered into pretrial confinement
violates that order by escaping from the physical restraint imposed). MCM, pt. IV,
¶19.e(4). In escalating conduct that amounts to breaking restriction to the offense
of willful disobedience the majority opinion would allow the absurd effect of
transforming a breaking restriction offense into an offense that is a far more serious
offense than escaping from confinement.



                                           5
PHILLIPS—ARMY 20120585

      In this case, the facts developed indicated appellant’s commander considered
placing him in pretrial confinement as a result of appellant’s past behavioral issues
and lack of accountability. It is not unusual for commanders to impose rest riction in
such circumstances, as a lesser form of restraint than pretrial confinement. None of
the admissions by appellant in the stipulation of fact or during his providence
inquiry indicated that the order he received from his commander was to be anyth ing
more than this typical situation in which a commander imposes restriction following
some misconduct the unit is attempting to address.

       The providence inquiry in this case was factually and legally inadequate to
support a finding of guilty to a violation of Article 90, UCMJ, for willful
disobedience of a superior commissioned officer as it raised a substantial basis in
law and fact to question appellant’s plea. United States v. Inabinette, 66 M.J. 320
(C.A.A.F. 2008). Our superior court has held that “[t]he providence of a plea is
based not only on the accused’s understanding and recitation of the factual history of
the crime, but also on an understanding of how the law relates to those facts.”
United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v.
Care, 18 U.S.C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969)).

       As noted above, the facts indicated nothing lifting the commander’s order
above anything more than the simple imposition of restriction. Even if the factual
admissions of the appellant during his providence inquiry could be interpreted by a
military judge to constitute the rare case in which the restriction is “lifted above the
common ruck,” in the context of a guilty plea it would also be incumbent on the
military judge to ensure the appellant understood the legal distinction between a
violation of an order constituting willful disobedience and one that would result only
in the offense of breaking restriction. Such an explanation would meet the
requirements set forth in Care and Medina that a military judge conducting a
providence inquiry is to ensure that an accused understands how his factual
admissions support a finding that he committed a willful disobedience offense in a
legal sense as opposed to constituting a violation of breaking restriction.

       The precedent set by the majority opinion would render any distinction
between breaking restriction and willful disobedience meaningless. This is contrary
to the intent of the legislature and President in defini ng these as two separate
offenses with vastly different sentencing implications.

       For these reasons, I would set aside appellant’s conviction for willful
disobedience of a superior commissioned officer as being improvident, but would
affirm the remaining findings of guilty and the sentence as adjudged and approved
by the convening authority.




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PHILLIPS—ARMY 20120585

KRAUSS, Judge, concurring in part and dissenting in part:

      I join fully with Senior Judge Yob’s dissent and offer this separate dissent.

        By accepting appellant’s plea under Article 90, UCMJ, in this case, the
majority effectively endorses the abolition of any meaningful distinction between
the offenses of willful disobedience and breaking restriction. The decision conflates
the two types of “ultimate offense” sit uations that arise and exaggerates criminal
liability for what has always been understood as a minor offense under Article 134,
UCMJ, breaking restriction. In so doing, the majority allows commanders a degree
of prosecutorial discretion that undermines th e scheme of crime and punishment as
defined by Congress and the President under Articles 95 and 134, UCMJ, and runs
afoul of an essential corollary to the rule of lenity by favoring the general over the
specific criminal provision. Therefore I respectfull y dissent.

        The facts established by the record are these: On 14 March 2012, appellant
received a written counseling statement, originating with and signed by his company
commander, restricting appellant to Fort Carson, Colorado. This restriction was
imposed as a form of pretrial restraint under Rule for Courts -Martial [hereinafter
R.C.M.] 304(a)(2). The government charged appellant with willfully disobeying a
lawful command “to be restricted to Fort Carson, Colorado, or words to that effect
. . . on or about 11 April 2012,” in violation of Article 90, UCMJ. Appellant broke
that restriction on the day alleged and admitted to doing so.

       Of course, when a soldier breaks restriction he disobeys an order. That
disobedience is a minor offense to be prosecuted under Article 134, UCMJ. An
order whose sole purpose is to effect pretrial restraint should not be charged under
Article 90, UCMJ. See United States v. Nixon, 21 U.S.C.M.A. 480, 485, 45 C.M.R.
254, 258 (1972); United States v. Jessie, 2 M.J. 573, 575-76 (A.C.M.R. 1977); see
also United States v. Mack, 65 M.J. 108, 110 (C.A.A.F. 2007); United States v.
Hargrove, 51 M.J. 408 (C.A.A.F. 1999); United States v. Haynes, 15 U.S.C.M.A.
122, 35 C.M.R. 94 (1964).

       The first two essential elements of proof o f the offense of breaking restriction
under Article 134, UCMJ, are: “That a certain person ordered the accused to be
restricted to certain limits” and “that said person was authorized to order said
restriction.” Manual for Courts-Martial, United States (2012 ed.) [hereinafter
MCM, 2012], pt. IV, ¶¶ 102.b(1), (2).

       “Restriction is the moral restraint of a person imposed by an order directing a
person to remain within certain specified limits. ‘Restriction’ includes restriction
under R.C.M. 304(a)(2) . . . .” MCM, 2012, pt. IV, ¶ 102.c. “Restriction in lieu of
arrest is the restraint of a person by oral or written orders directing the person to
remain within specified limits.” R.C.M. 304(a)(2). “Any commissioned officer may



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PHILLIPS—ARMY 20120585

order pretrial restraint of any enlisted person. . . .” R.C.M. 304(b)(2). This is an
authority that “a commanding officer may delegate to warrant, petty, and
noncommissioned officers.” R.C.M. 304(b)(3). Under “ [p]rocedures for ordering
pretrial restraint,” “[p]retrial restraint other than confinement is imposed by
notifying the person orally or in writing of the restraint, including its terms or
limits. The order to an enlisted person shall be delivered personally by the authority
who issues it or through other persons subject to the code.” R.C.M. 304(d).

       The discussion to R.C.M. 304 in the MCM, 2012, provides that “[b]reach of
arrest or restriction in lieu of arrest or violation of conditions on liberty are offenses
under the code” and it references paragraphs 16, 19, and 10 2, of Part IV of the
MCM, 2012 (i.e., the “Punitive Articles”). R.C.M. 304 discussion. That is Articles
92, 95, and 134, UCMJ. Under paragraph 16 (Article 92, UCMJ, Failure to obey
other lawful order), the severe punishment otherwise permitted for faili ng to obey an
order does not apply “if the violation or failure to obey is a breach of restraint
imposed as a result of an order. In these instances, the maximum punishment is that
specifically prescribed elsewhere for that particular offense.” Manual for Courts-
Martial, United States (2008 ed.) [hereinafter MCM, 2008], pt. IV, ¶ 16.e(2) (note). 8
In other words, a bad-conduct discharge, total forfeiture of all pay and allowances,
and six months confinement is not permitted for violating an order to remain within
specified limits imposed as pretrial restraint, but, rather, only one month
confinement and forfeiture of two-thirds pay per month for one month is the
maximum allowed. MCM, 2012, pt. IV, ¶¶ 16.e(2), 102.e.

       The discussion and explanations in the MCM comport with the scheme of
crime and punishment defined by Congress and the President as well as the history
and common law of military justice under the UCMJ. Indeed, the 1968 Manual for
Courts-Martial explicitly provided that violations of such restric tion were punishable
as violations of Article 134. Manual for Courts-Martial, United States (1968 ed.)
[hereinafter MCM, 1968] ¶ 20b. In reference to footnote 5 of the 1968 MCM’s table
for Maximum Punishment (still found in the latest table of maximum pu nishments
and found also under pt. IV, ¶ 16.e in the MCM applicable in this case) the analysis
to the 1968 MCM states that:

                     (1) If an offense exists without an order being given
             it falls within fn. 5. Fn. 5 is intended to prevent an
             increase of punishment for an offense already prescribed



8
 It appears that the Note to ¶¶ 16.e(1) and (2) was inadvertently omitted from the
2012 edition of the Manual for Courts-Martial. See Exec. Order No. 13,468, 73 Fed.
Reg. 43827 (28 July 2008); Exec. Order No. 13,552, 75 Fed. Reg. 54263 (3 Sep.
2010); Exec. Order No. 13,593, 76 Fed. Reg. 78451 (16 Dec. 2011); MCM, 2012,
Appendix 12 (Maximum Punishment Chart).


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PHILLIPS—ARMY 20120585

             by the issuance of an order so as to lay the charge under
             Art. 92.

                    (2) The limitation for violation of conditions of
             restraint imposed as a result of an order was added
             because restraint is always imposed by some type o f order
             and hence is an exception to the first limitation in that
             punishments for these violations are prescribed elsewhere
             in the table.”

Draft Analysis of Contents, Manual for Courts-Martial, 1968 ed., Punitive Articles,
Defenses and Punishments, pp. 3-4. 9

       Our superior court has most recently reiterated this principle in Hargrove, 51
M.J. 408. The court in Hargrove framed the matter as a question of proper charging
and proof recognizing that a charge under Article 90 or Article 92, UCMJ, should
not be sustained when the offense committed was either breaking restriction or
failure to go to one’s appointed place of duty, for example. Id. at 408; See also
United States v. Henderson, 44 M.J. 232, 233-34 (C.A.A.F. 1996); cf. United States
v. Quarles, 1 M.J. 231, 232 (C.M.A. 1975) (Article 92, UCMJ, conviction sustained
as long as limited to Article 86, UCMJ —failure to go to appointed place of duty—
maximum punishment); United States v. Burroughs, 49 C.M.R. 404, 405 (A.C.M.R.
1974) (affirming Article 90, UCMJ, conviction, but limiting punishment to that
under Article 95, UCMJ—resisting apprehension).

       The court in Hargrove may have contributed some confusion on the matter by
declaring in the body of the opinion that “[m]ilitary law has long held that m inor
offenses may not be escalated in severity by charging them as violations of orders or
the willful disobedience of superiors” while including in a footnote reference to the
punishment limitation described above and implicitly extending that limit to Ar ticle
90 offenses. Hargrove, 51 M.J. at 409 n.2.

      Indeed, at this court we see cases where military judges accept pleas of guilty
under Article 90, UCMJ, only to declare, sua sponte, that because the disobedience

9
  The Preface of the Analysis of Contents Manual for Courts-Martial, 1969, Revised
Edition recognizes that it is a replacement for the “unofficial draft analysis of
contents, Manual for Courts-Martial United States 1968 . . . which [was] printed in
limited quantities and distributed on a special pin point distribution . . . .” Dep’t of
Army, Pam. 27-2, Analysis of Contents for Courts-Martial, United States 1969,
Revised Edition (July 1970) [hereinafter DA Pam. 27 -2, 1969]. Nonetheless, the
specific language cited above from the 1968 analysis was adopted and incorporated
into the officially published 1969 Analysis of the Manual for Courts -Martial, revised
edition. DA Pam 27-2, 1969, pp. 25—9 – 25—11 (July 1970).


                                           9
PHILLIPS—ARMY 20120585

amounted to nothing other than breaking restriction they would apply the maximum
punishment for the latter offense. We have also seen cases where prior to a plea
under Article 90, UCMJ, military judges declare that the willful disobedience
alleged amounts to breaking restriction, and though the n accepting the plea under
Article 90, UCMJ, apply the Article 134, UCMJ, maximum for breaking restriction.
Nothing significantly distinguishes these cases on the facts. All involve the
imposition of a restriction and its breach. The good majority of pl eas similar to
these are like this case where the military judge and parties are silent as to the
apparent issue. 10

       Clarification is worthwhile and the straightforward enforcement of the law as
defined is the better approach. When a soldier breaks restr iction he should be
charged and punished for the offense of breaking restriction. Otherwise, we face
what amounts to a continued arbitrary application of a rather dubious sentence
limitation to Article 90, UCMJ, convictions.

       Turning to the facts of this case, the majority’s reliance on United States v.
Landwehr, 18 M.J. 355 (C.M.A. 1984), is misplaced. The first type of “ultimate
offense” situation occurs when a soldier is ordered to fulfill or complete a
preexisting duty; for example, an order to repo rt to a certain place for duty when
that place of duty had already been defined by previous order; or, in a circumstance
such as this, where a commander who has imposed restriction subsequently orders
the restricted soldier not to break restriction. 11 It is then that inquiry into whether
the officer issuing the order was doing so simply to increase the potential penalty is
necessary. See, e.g., United States v. Pettersen , 17 M.J. 69 (C.M.A. 1983).

       It must also be stated that lack of improper intent on t he part of an issuing
officer does not resolve the matter against an accused soldier. Whether malicious or
innocent, it is improper to escalate the severity of a minor offense by charging it as a

10
  These cases include some that are currently pending before this court, as well as
others we have recently decided. See, e.g., United States v. Bartsh, ARMY
20111104, 2013 WL 6913002 (Army Ct. Crim. App. 31 Dec. 2013); United States v.
Anderson, ARMY 20120503, 2013 WL 5609356 (Army Ct. Crim. App. 27 Sep.
2013); United States v. Gillum, ARMY 20111156, 2012 WL 3150409 (Army Ct.
Crim. App. 27 July 2012).
11
  The majority does not rely on appellant’s statement during the providence inquiry
that he was ordered not to break restriction. There is good reason, appellant was not
charged with violating an order not to break restriction and neither the stipulation of
fact nor the record as a whole demonstrate such order was rendered. Instead the
record establishes that appellant received an order imposing restriction as described
above.



                                           10
PHILLIPS—ARMY 20120585

more serious offense under these circumstances. See United States v. Bratcher, 18
U.S.C.M.A. 125, 39 C.M.R. 125 (1969); see also United States v. Battle, 27 M.J. 781
(A.F.C.M.R. 1988).

       In any event, we here face the second type of ultimate offense, that involving
an order to be restrained in some fashion defin ed under the UCMJ. See, e.g., Nixon,
21 U.S.C.M.A. 480, 45 C.M.R. 254. Absent facts to establish that the order
imposing restriction amounts to something more than the means by which restraint is
imposed, it is improper to affix liability offered under A rticle 90, UCMJ. See
United States v. Porter, 11 U.S.C.M.A. 170, 28 C.M.R. 394 (1960); Nixon, 21
U.S.C.M.A. 480, 45 C.M.R. 254; Jessie, 2 M.J. 573. Here, there is nothing in the
record to suggest that appellant’s company commander was personally reinforc ing a
previous order imposing restriction delivered by subordinates or that the commander
endeavored to impress upon the appellant that he was not merely imposing
restriction, but rather that he was elevating the importance of the order sufficient to
appropriately permit prosecution and punishment under Article 90, UCMJ. The fact
that legitimate reasons existed to warrant imposition of pretrial restraint does not
equate to facts establishing the order imposing restriction with an order properly
subject to enforcement under Article 90, UCMJ.

       An example of the consequence of the majority opinion is to elevate the
offense of breaking restriction over that of the more serious offenses of breach of
arrest and escape from pretrial confinement. Each a more res trictive means of
pretrial restraint than mere restriction to geographic limits. To take one example, an
officer orders a soldier into pretrial confinement. If a soldier disobeys that order
and escapes from pretrial confinement he is not properly subject to prosecution and
conviction under Article 90, UCMJ. Rather, proper prosecution and punishment lies
under Article 95, UCMJ. The maximum punishment permitted for escape from
pretrial confinement is one year confinement and a dishonorable discharge. With
this decision, the majority effectively endorses a maximum punishment of a
dishonorable discharge and five years confinement 12 (death in time of war) for an act
significantly less serious than escape from pretrial confinement and patently
contrary to the scheme of liability defined by Congress and the President. MCM,
2012, pt. IV, ¶ 19, 102, and R.C.M. 304 discussion (signifying the propriety of
prosecuting restraint violations under Articles 95 and 134); see also, United States v.
Miller, 47 M.J. 352, 356-57 (C.A.A.F. 1997).

       Finally, recognition of the disagreement between the majority’s approach and
the UCMJ and MCM is also revealed by applying an essential corollary to the rule of
lenity requiring enforcement of a specific criminal provision over a general
provision in circumstances where both apparently apply. See Busic v. United States,
446 U.S. 398, 406 (1980); United States v. Cotoia, 785 F.2d 497 (2d Cir. 1986);

12
     Both Articles 90 and 95, UCMJ, also authorize total forfeitures.


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PHILLIPS—ARMY 20120585

United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); See also United States v.
LaPorta, 46 F.3d 152, 156-57 (2d Cir. 1994). The majority’s reading of willful
disobedience requires nothing more than an intentional violation of restriction that
renders breaking restriction, as an offense, essentially superfluous or, at least
relegates it to instances of unintentional breach or, perhaps, where a commanding
officer has delegated authority to noncommissi oned officers to impose restriction.
These scenarios are, however, at odds with our practice to this point. 13

       This departure from the rule of law as defined by Congress and the President
is neither necessary nor justified. While a commander’s prosecutor ial discretion and
ability to enforce orders with criminal sanction are fundamental, they are limited by
the law. The rule of law exists as much as a check upon the authority of those in
power as it does as a tool for the enforcement of that authority. H ere, appellant’s
commander imposed pretrial restriction in a routine fashion 14 and appellant broke
that restriction as alleged by visiting his girlfriend off post. Because there is
nothing in either appellant’s admissions or the stipulation of fact to esta blish that the
order issued was anything more or anything other than an order restricting appellant
to the limits of Fort Carson, let alone sufficient to establish an intentional defiance
of authority rather than a simple breaking restriction, the plea sho uld be rejected.
Hargrove, 51 M.J. 408; Bratcher, 18 U.S.C.M.A. 125, 39 C.M.R. 125.

      I concur in the remainder of the majority’s opinion.
                                          FOR THE COURT:



                                          MALCOLM H. SQUIRES, JR.
                                          Clerk of Court

13
  Statute, executive order, and our common law reinforce the conclusion that the
majority’s take on willful disobedience guts the historic distinction between a
general and the specific crime applicable in this instance in circumstances that
warrant enforcement of the specific over the general. See, e.g., Nixon, 21
U.S.C.M.A. 480, 45 C.M.R. 254; Jessie, 2 M.J. 573; see also Cotoia, 785 F.2d 497;
Olinger, 759 F.2d 1293; LaPorta, 46 F.3d 152; Miller, 47 M.J. 352; cf. Bobb v.
Attorney General of the United States, 458 F.3d 213, 224 (3d Cir. 2006) .
14
  The majority makes reference to the commander personally conveying the order
imposing restriction. However, personal conveyance of such ord ers is, as in this
case, routine. See, e.g., R.C.M. 304(d); see also, Army Reg. 27-10, Legal Services:
Military Justice, para. 3-19.b(3) (indeed there is little more personal than a
commander’s imposition of restriction as punishment under Article 15, ye t violation
of that order is also understood as constituting the offense of breaking restriction);
MCM, 2012, pt. IV, ¶ 102.c.


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