UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            HAIGHT, PENLAND, and WOLFE
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                    Private First Class KYLE A. PICCIRILLO
                          United States Army, Appellant

                                   ARMY 20140897

                        Headquarters, 7th Infantry Division
                         Jeffery D. Lippert, Military Judge
                  Colonel Robert F. Resnick, Staff Judge Advocate


For Appellant: Captain Heather L. Tregle, JA (argued); Major Aaron R. Inkenbrandt,
JA; Captain Heather L. Tregle, JA (on brief); Colonel Mary J. Bradley, JA; Captain
Heather L. Tregle, JA (on brief on specified issue).

For Appellee: Captain Robyn M. Chatwood, JA (argued); Colonel Mark H.
Sydenham, JA; Major John K. Choike, JA; Captain Robyn M. Chatwood, JA (on
brief); Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain Robyn
M. Chatwood, JA (on brief on specified issue).


                                   29 January 2016

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

PENLAND, Judge:

       A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of three specifications of conspiracy, larceny, simple
arson, and receiving stolen property, in violation of Articles 81, 121, 126, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 926, and 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for 350 days, and reduction to the grade of E-1. The
convening authority approved only 300 days of the confinement term and the
remainder of the adjudged sentence.

      We review appellant’s case pursuant to Article 66, UCMJ. We have considered
matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J.
PICCIRILLO—ARMY 20140897

431 (C.M.A. 1982); they lack merit. Appellant assigns one error which warrants
discussion but no relief. We specified an additional issue for briefing and argument
and, finding it constitutes legal error, grant relief in our decretal paragraph.

             1. Terminal Element of Receiving Stolen Military Property

      Appellant pleaded guilty to and was convicted of, inter alia, receiving stolen
property, 1 “such conduct being to the prejudice of good order and discipline in the
armed forces.” The providence inquiry on the terminal element follows:

             MJ: Can you tell me why you believe your involvement in
             receiving the property, along with Sergeant Serini, from
             Specialist Scott, is prejudicial to good order and
             discipline.

             ACC: Because we cannot have Soldiers . . . stealing
             things in the military, Your Honor.

             MJ: Why not?

             ACC: It’s part of the Army values, Your Honor, Integrity.
             It’s as simple as that.

             MJ: It goes to discipline, correct?

             ACC: Yes, Your Honor.

             MJ: The Army provides that stuff for you and for all the
             other people in your unit to use as part of your training
             and preparations for winning our nation’s wars, correct?

             ACC: Yes, Your Honor.

             MJ: And if you convert it to your own use, or someone
             steals it and then gives it to you, what does that do to
             discipline?

             ACC: It ruins it, Your Honor.

       In his assigned error, appellant contends “the military judge failed to elicit a
factual basis to support that [appellant’s] conduct was prejudicial to good order and


1
 The items were advanced military thermal imaging devices, worth approximately
$10,000 each.
                                           2
PICCIRILLO—ARMY 20140897

discipline . . . .” We review a military judge’s decision to accept a guilty plea for an
abuse of discretion. 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)). A guilty plea
will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We
apply this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
910(e).

        Appellant relies on United States v. Caldwell, 72 M.J. 137, 140-42 (C.A.A.F.
2013) and United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006) (“Conduct
that is prejudicial to good order and discipline is ‘conduct that causes a reasonably
direct and palpable injury to good order and discipline.’”). Those cases recite the
correct legal standard, but their facts are significantly different from those before us
now. Appellant admitted that he knew he was receiving advanced tactical optics
from a fellow soldier who stole them from another company in his battalion, and that
their purpose was for use in combat. We find no substantial basis to question
appellant’s providency to committing conduct prejudicial to good order and
discipline. See also United States v. Nance, 67 M.J. 362 (C.A.A.F. 2009).

                          2. Aiding and Abetting Simple Arson

        Appellant was also convicted of, inter alia, conspiring with Specialist (SPC)
KD to commit simple arson 2 and the actual commission of that offense. By way of
background, SPC KD was a fellow soldier who owned a car which had broken down.
To avoid paying for repairs or the car itself, SPC KD hatched a plan to burn it and
file a claim against his insurance policy. He asked appellant for help, which
appellant rendered by purchasing lighter fluid and helping tow the car to a location
which they assessed as suitable to the purpose. During the providence inquiry,
appellant testified that SPC KD sprayed lighter fluid into the car, let it soak in, and
then ignited it with a piece of paper he grabbed from the backseat of appellant’s
vehicle and lit a flame.



2
    The elements of simple arson are as follows:

     (a) That the accused burned or set fire to certain property of another;

     (b) That the property was of a certain value; and

     (c) That the act was willful and malicious.

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 52.b.(2).
                                             3
PICCIRILLO—ARMY 20140897

       The military judge briefly discussed criminal liability concepts found in
Article 77, UCMJ (Principals), and appellant admitted, “I aided and abetted [SPC
KD], Your Honor.” However, neither the military judge nor the parties tackled the
fundamental legal problem with appellant’s culpability for simple arson: appellant
helped SPC KD burn his own car. We find, as a matter of law, that appellant cannot
be guilty of simple arson or conspiracy to commit that offense under these facts. “If
the owner in possession is not guilty of arson in burning his own property, then one
who assists the owner in burning it or who burns it at the owner’s request is not
guilty of arson, for the agent’s guilt can only be coextensive with that of the
principal.” United States v. Banta, 26 M.J. 109, 113 (C.M.A. 1988) (Everett, C.J.
concurring) (quoting 5 Am. Jur. 2d Arson § 23 (1962)).

      The government argues that the majority opinion in Banta controls the result
here. We disagree. The Banta majority focused not on the elemental question of
whether petitioner burned the property “of another,” but instead, if he did so
maliciously—a completely different element under Article 126. Banta, 26 M.J. at
112.

                                   CONCLUSION

       The findings of guilty of Specification 3 of Charge I, and the Specification of
Charge III and Charge III are set aside and DISMISSED. The remaining findings of
guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we are confident the military judge would have adjudged at least as severe a
sentence as that which the convening authority ultimately approved. The approved
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of those findings set aside and dismissed by this decision
are ordered restored.

      Senior Judge HAIGHT and Judge WOLFE concur.

                                        FOR THE COURT:




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




                                          4
