UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             COOK, YOB, and GALLAGHER
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Private E2 BRANDON M. DEWEY
                          United States Army, Appellant

                                   ARMY 20110983

                             Headquarters, Fort Carson
                    Mark A. Bridges, Military Judge (arraignment)
                          Kurt Bohn, Military Judge (trial)
              Lieutenant Colonel Steven P. Haight, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA (on
brief); Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA;
Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA (on brief in response to
specified issue).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief); Lieutenant
Colonel Amber J. Roach, JA; Captain Stephen E. Latino, JA (on brief in response to
specified issue).


                                    15 October 2012
                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A military judge, sitting as a special court–martial, convicted appellant,
consistent with his plea, of desertion in violation of Article 85, Uniform Code of
Military Justice, 10 U.S.C. § 885 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad–conduct discharge, confinement for five months, and
reduction to the grade of E–1. The convening authority approved the adjudged
sentence.

       Appellant submitted his case to our court upon its merits. Upon review, we
specified the following issue:
DEWEY—ARMY 20110983

             WHETHER THE MILITARY JUDGE ABUSED HIS
             DISCRETION IN ACCEPTING APPELLANT’S PLEA OF
             GUILTY TO THE CHARGE AND ITS SPECIFICATION.

      We conclude that the military judge abused his discretion in accepting
appellant’s plea to The Charge and its Specification and will grant relief in our
decretal paragraph.

                                       FACTS

      On 15 February 2011, the government preferred the following Charge and its
Specification against appellant:

             In that Private (E-2) Brandon M. Dewey, U.S. Army, did,
             on or about 16 February 2007, without authority and with
             intent to remain away therefrom permanently, absent
             himself from his unit, to wit: Headquarters and
             Headquarters Company, 4th Infantry Brigade Combat
             Team, 4th Infantry Division (Mechanized), located at or
             near Fort Carson, Colorado, and did remain so until he
             was apprehended on or about 11 November 2010.

       Prior to trial, appellant offered to plead guilty to The Charge and its
Specification and entered into a stipulation of fact. The stipulation of fact contained
the following information:

             . . . Prior to deserting the accused was assigned to Rear
             Detachment, 1st Battalion-9th Infantry Regiment, 2d
             Brigade Combat Team, 2d Infantry Division, Fort Carson,
             Colorado. Since his return from AWOL, the Accused has
             been assigned to Headquarters and Headquarters
             Company, 4th Infantry Brigade Combat Team, 4th Infantry
             Division (Mechanized), Fort Carson, Colorado. 1-9
             Infantry Regiment reflagged to 1-12 Infantry Regiment on
             8 April 2008.

             ...

             In May/June 2009, the Accused’s unit, 1-12 Infantry, 4th
             Brigade Combat Team (reflagged from 1-9 Infantry in
             2008) deployed to Afghanistan in support of Operation
             Enduring Freedom. . . .




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DEWEY—ARMY 20110983

       During the providence inquiry, appellant told the military judge his present
unit was “HHC, Brigade, 4th Brigade.” Appellant then informed the military judge
that on 16 February 2007, his unit was “1/9 Infantry, 2nd Brigade, 2nd ID.” The
following exchange also took place during the providence inquiry:

             MJ: Do you believe and do you admit that on or about 16
             February 2007, with the intent to remain permanently
             absent, you quit your unit, that is—well now, let me ask
             you this, was [sic] is your current unit?

             Acc: Current unit is, HHC Brigade, 4th Brigade, sir.

             MJ: That you quit your unit identified in The
             Specification as Headquarters and Headquarters Company,
             4th Infantry Brigade Combat Team, located at Fort
             Carson, Colorado, and you did so and remained absent in
             desertion until on or about 11 November 2010?

             Acc: Yes, sir.

      Later on, appellant had the following discussion with the military judge
during the providence inquiry:

             MJ: Do you agree that the unit you absented, 1/9 Infantry,
             was your unit of assignment at the time on 16 February
             2007, at Fort Carson, Colorado?

             Acc: Yes, sir.

             MJ: And that your current unit, Headquarters and
             Headquarters Company, is the unit that you have been
             attached to upon your return?

             Acc: Yes, sir.

                              LAW AND DISCUSSION

      A military judge’s acceptance of an appellant’s guilty plea is reviewed for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
“A military judge abuses this discretion if he fails to obtain from the accused an
adequate factual basis to support the plea—an area in which we afford significant
deference.” Id. (citing United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)).
Ultimately, this court applies the “substantial basis” test: “Does the record as a




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DEWEY—ARMY 20110983

whole show a substantial basis in law and fact for questioning the guilty plea.” Id.
(quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

       “Under military law, the Government must establish not only that an accused
[deserted,] but also the organization from which he [deserted].” United States v.
Bowman, 21 U.S.C.M.A. 48, 50, 44 C.M.R. 102, 104 (1971) (citations omitted). In
pleading a desertion offense, “the naming of a particular organization as the
accused’s unit of assignment serves both to identify and limit the offense charged.”
United States v. Walls, 1 M.J. 734, 737 (A.F.C.M.R. 1975) (citation omitted). The
government charged appellant with deserting “Headquarters and Headquarters
Company, 4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized).”
However, appellant actually stated he was assigned to Rear Detachment, “1/9
Infantry, 2nd Brigade, 2nd ID” when he absented himself from the unit and that after
a couple of years he formed the intent to never return. The stipulation of fact also
stated that appellant left this same unit. Therefore, the information provided during
the providence inquiry and the information contained in the stipulation of fact shows
that appellant deserted an entirely different unit than that alleged.

       Stated differently, the facts provided during the providence inquiry and in the
stipulation of fact fail to establish that appellant deserted “Headquarters and
Headquarters Company, 4th Infantry Brigade Combat Team, 4th Infantry Division
(Mechanized)” as charged. See United States v. Murrell, 50 C.M.R. 793, 795
(A.C.M.R. 1975) (dismissing an unauthorized absence charge from “US Army
Company C, 7th Battalion, 2d Basic Combat Training Brigade, US Army Training
Center Armor, Fort Knox, Kentucky” because the proof showed appellant absented
himself from “Company C, 7th Battalion, 2d Combat Support Training Brigade (IA),
SATC Armor, First US Army, Fort Knox, Kentucky” and refusing to “speculate the
unit is the same and the differences are descriptive only.”); United States v. Holmes,
43 C.M.R. 446, 447 (A.C.M.R. 1970) (setting aside an unauthorized absence offense
because the military judge convicted appellant of leaving “Company E, 3d Battalion,
1st Advanced Individual Training Brigade, located at Fort Huachuca, Arizona”
where the proof demonstrated appellant absented himself from “Company B, 3d
Battalion, 1st Combat Support Training Brigade, Fort Huachuca, Arizona”).

       The facts elicited with regard to “Headquarters and Headquarters Company,
4th Infantry Brigade Combat Team, 4th Infantry Division (Mechanized)” only show
that appellant was assigned to this unit both upon his return to the Army and at the
time of his court-martial. Although the facts arguably establish continuity between
Rear Detachment, “1/9 Infantry, 2nd Brigade, 2nd ID,” and “1-12 Infantry, 4th
Brigade Combat Team,” no link was factually provided between those units and
“Headquarters and Headquarters Company, 4th Infantry Brigade Combat Team, 4th
Infantry Division (Mechanized).”




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DEWEY—ARMY 20110983

       The military judge should have identified and resolved the apparent
inconsistency as to the unit the government alleged appellant deserted and the unit
appellant actually deserted. However, the military judge failed to do so. Thus, the
military judge abused his discretion in accepting appellant’s plea without
establishing a sufficient factual predicate. See United States v. Toth, ARMY
20081016, 2009 WL 6835718, at *4 (Army Ct. Crim. App. 30 Oct. 2009) (mem. op.)
(finding that a military judge abused his discretion in accepting appellant’s plea to
unauthorized absences because “he failed to establish a sufficient factual basis to
support a required element of the offense of AWOL, that is, the accused’s actual unit
of assignment”). We will not speculate at this level as to whether there is a requisite
link between the unit that appellant deserted and the unit he was charged with
deserting. A required element of desertion is that an accused must have absented
himself from his unit. Manual for Courts-Martial, United States (2012 ed.), pt. IV,
¶ 9.b.(1)(a). The military judge abused his discretion in this case by accepting a
guilty plea to desertion from a unit appellant never left.

       As a result, we must set aside and dismiss without prejudice The Charge and
its Specification. However, a new trial upon another desertion charge involving the
same period of time but alleging appellant’s correct unit or organization would not
be barred. See Walls, 1 M.J. at 737; Holmes, 43 C.M.R. at 447.

                                   CONCLUSION

      The finding of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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