UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          LIND, KRAUSS, and BORGERDING
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                     Sergeant MATTHEW B. PFRENGER II
                         United States Army, Appellant

                                   ARMY 20121105

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
             Lieutenant Colonel John A. Hamner, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain A. Jason Nef, JA; Captain Robert A. Feldmeier, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Jaclyn E. Shea, JA (on brief).


                                     24 April 2014

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                               SUMMARY DISPOSITION
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KRAUSS, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of ten specifications of cruelty and maltreatment in violation
of Article 93, Uniform Code of Military Justice, 10 U.S.C. § 893 (2006) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad conduct
discharge, confinement for four months, and reduction to the grade of E-3.

       This case is before the court for review under Article 66, UCMJ. Appellant
assigns one error and raises another pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). Appellant’s assignment of error warrants brief discussion, but
no relief.

      Of the ten specifications of cruelty and maltreatment, five were based on
physical maltreatment, one was based purely on the use of “racially insensitive
PFRENGER — ARMY 20121105

language,” and four were based both on physical maltreatment and the use of
“racially insensitive language towards” the alleged victims.

       The necessity to maintain and enforce an environment free of racially
offensive behavior and discrimination is paramount and beyond dispute. See, e.g.,
Army Reg. 600-20, Army Command Policy, paras. 4-12, 6-2 (18 Mar. 2008) (RAR,
30 Nov. 2009; 27 Apr. 2010; and 4 Aug. 2011). The necessity to establish an
objective record of facts sufficient to support an accused’s plea of guilty before
approving a criminal conviction is an equally paramount concern and dispositive in
the process of military justice. See UCMJ art. 45; United States v. Care,
18 U.S.C.M.A. 535, 541-42, 40 C.M.R. 247, 253-54 (1969); Rule for Courts-Martial
910(e).

       Appellant asserts that the military judge erred by failing to establish that
appellant’s speech was not constitutionally protected. We find this case a close one,
but for more prosaic reasons: the military judge never elicited, and the appellant
never articulated, the exact or particular content and specific context of the alleged
“racially insensitive language.”

       The appellant did admit, however, that in relation to each of the specifications
concerned, he “made racially insensitive jokes and made [each of the alleged
victims] cover their ears so they wouldn’t have to hear it;” that each of the victims
“knew in each occasion that [appellant was] making a racially oriented joke;” and
that he was “making fun of somebody who might be a different race than [appellant]
because of their race.” This is sufficient to establish patently offensive and
prohibited behavior. In view of the entire inquiry and the stipulation of fact, we find
that appellant’s use of this language and direction that each of the victims should
cover their ears while he uttered these “racially oriented joke[s]” amounted to the
sort of humiliating and degrading treatment and abuse of authority contemplated by
Article 93, UCMJ, and sufficient to accept the pleas of guilty at issue. Appellant
admitted as much and the record discloses nothing inconsistent with those pleas.
See United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002); United States v.
Harman, 66 M.J. 710, 716-19 (Army Ct. Crim. App. 2008). See generally Manual
for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 17.c(2); 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)).

      On consideration of the entire record, including the parties’ briefs and those
matters raised by appellant pursuant to Grostefon, the findings of guilty and the
sentence are AFFIRMED.

      Senior Judge LIND and Judge BORGERDING concur.




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PFRENGER — ARMY 20121105
                           FOR
                            FORTHE
                                THECOURT:
                                    COURT:



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




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