UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             JOHNSON, KRAUSS, and BURTON
                                 Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                 Private First Class MICHAEL S. JORGENSEN
                         United States Army, Appellant

                                       ARMY 20111094

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
           Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).

                                          27 July 2012
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                   SUMMARY DISPOSITION ON RECONSIDERATION
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KRAUSS, Judge:

       A military judge, sitting as a special court-martial empowered to adjudge a
bad conduct discharge, convicted appellant, pursuant to his pleas, of one
specification of absence without leave, one specification of failing to go to
appointed place of duty, one specification of willfully disobeying a superior
commissioned officer, and four specifications of wrongful use of cocaine in
violation of Articles 86, 90, and 112a Uniform Code of Military Justice, 10 U.S.C.
§§ 886, 890, 912a (2006) [hereinafter UCMJ]. The court-martial sentenced appellant
to a bad-conduct discharge and confinement for 100 days. In accordance with a
pretrial agreement, the convening authority approved only 3 months confinement as
well as the bad conduct discharge and credited appellant a total of 77 days for
pretrial confinement, conditions of confinement and illegal pretrial punishment.

        This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits and personally raised matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have considered the record of
trial and the matters submitted by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
JORGENSEN—ARMY 20111094

       Pursuant to the ultimate offense doctrine and in light of the fact that breaking
restriction can no longer be considered a lesser included offense of willfully
disobeying a superior commissioned officer, despite pleadings suggesting otherwise,
we find a substantial basis in law and fact to reject appellant’s plea to Charge II and
its Specification.

       Neither the stipulation of fact nor the providence inquiry at trial developed or
established sufficient facts to support a plea of guilty to a violation of Article 90 but
rather merely establish the offense of breaking restriction in violation of Article 134.
See United States v. Traxler, 39 M.J. 476 (C.M.A. 1994); United States v. Peaches,
25 M.J. 364 (C.M.A. 1987); United States v. Bratcher, 39 C.M.R. 125 (C.M.A.
1969); United States v. Loos, 4 U.S.C.M.A. 478, 480–81, 16 C.M.R. 52, 54–55
(1954). In addition, the offense of breaking restriction can no longer be considered
a lesser included offense of disobeying a superior commissioned officer so this court
is not free to substitute the former for the latter. See generally United States v.
Jones, 68 M.J. 465, 472 (C.A.A.F. 2010). Though the military judge treated the
offense as one of breaking restriction for sentencing purposes, the proper remedy is
dismissal of the charge under the circumstances. See Id. at 472-73 and see, e.g.,
United States v. Peaches, 25 M.J. 364 (C.M.A. 1987).

        Therefore we find a substantial basis in law and fact to reject appellant’s plea
of guilty to Charge III and its Specification and disapprove the finding of guilty.
See United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

       On consideration of the entire record, including consideration of the issues
personally raised by the appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), we disapprove the finding of guilty as to Charge II and its
Specification, and find the remaining findings of guilty correct in law and fact.
Accordingly, Charge II and its Specification are dismissed; the remaining findings
of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the
entire record, and in accordance with the principles of United States v. Sales, 22
M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
to include the factors identified by Judge Baker in his concurring opinion in Moffeit,
the court affirms the sentence as approved by the convening authority.

      Senior Judge JOHNSON and Judge BURTON concur.

                                         FOR THE COURT:
                                         FOR THE COURT: 




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


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