UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                            Specialist JOSH HARRIS
                          United States Army, Appellant

                                   ARMY 20120922

                  Headquarters, III Corps and Fort Hood (pretrial)
                       Headquarters, Fort Hood (post-trial)
                         Gregory A. Gross, Military Judge
    Colonel Stuart W. Risch, Staff Judge Advocate (advice and recommendation)
         Colonel Richard W. Rousseau, Staff Judge Advocate (addendum)


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Major Jaired D. Stallard, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Carling M. Dunham, JA (on brief).


                                    28 August 2014

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

Per curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit robbery, two
specifications of robbery, one specification of forcible sodomy, one specification of
assault, and one specification of kidnapping, in violation of Articles 81, 122, 125,
and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 922, 925, 928, 934
(2006). The military judge sentenced appellant to a dishonorable discharge,
confinement for fifty-two years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority approved nine years of confinement
and the remainder of the sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Although not
raised by the parties, we find that appellant improvidently entered a guilty plea to
HARRIS—ARMY 20120922

kidnapping in violation of Article 134, UCMJ, under a Clause 1 theory of liability.
We affirm that conviction solely on the basis of service-discrediting conduct under
Clause 2. Additionally, appellant, in his sole assignment of error, asks this court to
provide appropriate relief to remedy the dilatory post-trial processing of his case. 1
We agree that relief is appropriate in this case and grant 30 days confinement credit.

                               LAW AND DISCUSSION

     A. Appellant’s Guilty Plea to Kidnapping under a Clause 1 Theory of
        Liability.

       “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).

       Appellant pleaded guilty, among other offenses, to kidnapping and “said
conduct was to the prejudice of good order and discipline in the armed forces and
was of a nature to bring discredit upon the armed forces,” a violation of Clauses 1
and 2 of Article 134, UCMJ. 2 See Manual for Courts–Martial, United States (2008
ed.) [hereinafter MCM], pt. IV, ¶¶ 60.c.(2), (3). As our superior court recently
reiterated, “[t]he . . . clauses of Article 134 constitute ‘. . . distinct and separate
parts.’” United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United
States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). It follows, then
that “[v]iolation of one clause does not necessarily lead to a violation of the other . .
. .” Id. More pertinent to the case before us, the court in Fosler went on to state
that “disorders and neglects to the prejudice of good order and discipline” are not
synonymous with “conduct of a nature to bring discredit upon the armed forces . . .
.” Id. Thus, if a specification alleges both Clause 1 and 2, then there must be a
substantial basis in fact in the record to support a finding of guilty as to both.

        Here, the military judge properly defined prejudicial to good order and
discipline as “conduct which causes a reasonably direct and obvious injury to good
order and discipline.” See also MCM, Part IV, ¶ 60.c.(2)(a). The stipulation of fact
is silent as to how appellant’s conduct violated either Clause 1 or Clause 2. When

1
 The matters personally submitted by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit.
2
    This offense constituted Specification 1 of Charge VI.


                                            2
HARRIS—ARMY 20120922

asked why his conduct violated Clause 1, appellant answered, “Because I know what
I did was wrong.” Immediately thereafter, the military judge replied, “I think
probably here what would be most appropriate would be the ‘discredit upon the
armed forces.’” When asked why his conduct was service-discrediting, appellant
responded that it could “make people afraid of [s]oldiers . . .” and might hurt the
reputation of the service. The military judge found appellant guilty of kidnapping
under both Clause 1 and Clause 2 theories of liability.

       Given this providence inquiry and stipulation of fact, we find a substantial
basis in fact to question the providence of appellant’s guilty plea to kidnapping
under a Clause 1 theory of liability. Appellant’s statement “I know what I did was
wrong” does not establish a reasonably direct and obvious injury to good order and
discipline. On the other hand, the record establishes the providence of his guilty
plea to kidnapping under a Clause 2 theory of liability, and we accordingly affirm
his conviction on those grounds.

   B. Dilatory Post-Trial Processing

       The convening authority took action 380 days after the sentence was
adjudged. The record in this case consists of one volume, and the trial transcript is
113 pages. Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the unjustified dilatory post-trial processing. UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sentence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post-trial delay.”). See generally United States v.
Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613,
617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army
Ct. Crim. App. 2000). It took 226 days to transcribe the record in this case.
Appellant requested speedy post-trial processing, and the convening authority took
action over six months later. Furthermore, it took nearly two months after action to
mail the record to this court. While the government has explained the reasons for
delay, we find that these reasons are unreasonable under the totality of
circumstances.

                                   CONCLUSION

      Upon consideration of the entire record, including the matters submitted
pursuant to Grostefon, we affirm only so much of Specification 1 of Charge VI as
follows:

             In that [appellant], U.S. Army, did, at or near Killeen,
             Texas, between on or about 3 August 2012 and 4 August



                                          3
HARRIS—ARMY 20120922

             2012, willfully and wrongfully seize, confine, and hold
             Ms. [MM], a person not a minor, against her will, and that
             said conduct was of a nature to bring discredit upon the
             armed forces.

The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the amended findings, and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we first find no change in the penalty
landscape or the gravamen of appellant’s criminal conduct. Second, appellant
pleaded guilty in a judge-alone court-martial. Ultimately, we are convinced that the
military judge would have adjudged the same sentence had he only convicted
appellant of kidnapping under a Clause 2 theory of criminality.

       However, given the dilatory post-trial processing, we affirm only so much of
the sentence as extends to a dishonorable discharge, confinement for eight years and
eleven months, total forfeiture of all pay and allowances, and reduction to the grade
of E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of this decision setting aside portions of the findings and sentence are ordered
restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:



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




                                           4
