UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                        CAMPANELLA, SALUSSOLIA, and FLEMING
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                            Specialist ROBERTO FLORES
                            United States Army, Appellant
                                      ARMY 20160252

              Headquarters, 1st Cavalry Division (Rear)(Provisional)
                       Bernie C. Laforteza, Military Judge
       Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
        Colonel Oren H. McKnelly, Staff Judge Advocate (recommendation)
       Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (addendum)

For Appellant: Colonel Mary J. Bradley, JA; Captain Katherine L. DePaul, JA;
Captain Bryan A. Osterhage, JA (on brief); Lieutenant Colonel Tiffany M. Chapman,
JA; Major Todd W. Simpson, JA; Captain Bryan A. Osterhage, JA (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick,
JA; Captain Joshua B. Banister, JA (on brief).


                                      29 January 2018

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

       In this case, we dismiss a specification of desertion, affirm a finding of guilty
to the lesser-included offense of absence without leave (AWOL) as to a different
desertion specification, and grant relief for delay in post-trial processing. See
United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of desertion in violation of Article 85 of
the Uniform Code of Military Justice, 10 U.S.C. § 885 (2012) [UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge and confinement for nine
months. The convening authority approved only so much of the adjudged sentence
as provided for a bad-conduct discharge and confinement for 120 days, pursuant to a
pretrial agreement.
FLORES—ARMY 20160252

        This case is before us for review pursuant to Article 66, UCMJ. Appellant
initially asserted three assigned errors, one of which challenged the commander’s
authority to take action on appellant’s court-martial. Appellant now agrees this
assignment of error is moot because this court granted the government motions to
attach appellate exhibits that established the commander’s authority. We address the
remaining two assignments of error, which merit discussion and relief. We have
also considered the matter personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find it to be without merit.

                               Providence of Guilty Plea

       Appellant argues the military judge abused his discretion in accepting
appellant’s plea of guilty because he did not resolve inconsistencies about: 1) the
unit from which appellant deserted with respect to Specifications 1 and 2 of The
Charge; and 2) “a factual interruption in [appellant’s] period of absence” with
respect to Specification 1 of The Charge.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will not be
set aside unless we find a substantial basis in law or fact to question the plea.
Inabinette, 66 M.J. at 322. 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 United States v. Weeks, 71
M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse of discretion for a military judge to
accept a guilty plea without an adequate factual basis to support it . . . [or] if the
ruling is based on an erroneous view of the law.”).

                            Appellant’s Unit of Assignment

       Initially, appellant was charged with two specifications of deserting his unit:
“Headquarters and Headquarters Troop [HHT], 3d Squadron, 3d Cavalry Regiment,
III Corps/1st Cavalry Division.” Prior to arraignment, appellant’s unit was amended
in both specifications. Specification 1 was amended to “[HHT], 3d Squadron, 3d
Armored Cavalry Regiment, III Corps.” 1 Specification 2 was amended to “[HHT],
3d Squadron, 3d Cavalry Regiment, 1st Cavalry Division.”

       At trial, the military judge and the parties did not clarify which particular unit
organization or identification code (UIC) was applicable to Specification 1 or 2.
This failure now gives rise to the current appellate controversy. At issue is the unit


1
  During his review of the stipulation of fact, appellant noted a discrepancy and
proactively advised the military judge that the unit listed in Specification 1 “should
read ‘III Corps,’ not ‘1st CAV Division.’”


                                            2
FLORES—ARMY 20160252

from which appellant was charged with deserting in Specifications 1 and 2, and,
depending on that determination, whether appellant was assigned to that unit, and
did he plead guilty to deserting that charged unit during the providence inquiry.

       On appeal, appellant asserts Specifications 1 and 2 were charged as the same
unit defined as “030003ARHHT” (UIC “WG2NT0”) and he only admitted to
deserting a different unit defined as “030003ARSQ REAR (UIC: “WG2NTD”).
After a thorough review of the entire record, to include the stipulation of fact,
appellant’s admitted enlisted record brief (ERB), and his providence inquiry
responses, the court finds appellant was charged with two separate units in
Specifications 1 and 2. 2

       Appellant’s ERB documents his unit organization as “030003ARSQ REAR”
(“WG2NTD”) from 9 November 2010 to 2 March 2014. Specification 1, which was
charged from on or about 10 December 2010 to 15 February 2014, spans this entire
timeframe. Appellant agreed in the stipulation of fact, as to Specification 1, that
“[t]he rear-detachment unit was the HHT.” 3 In his discussion with the military judge
regarding Specification 1, appellant clearly stated, several times, he was assigned to
the rear detachment and he “immediately” intended to remain away from his unit
permanently. Appellant admits he deserted from “[HHT], 3d Squadron, 3d Armored
Cavalry Regiment, III Corps,” the unit charged in Specification 1. The court finds
the stipulation of fact, appellant’s providence inquiry responses, and his ERB all
support a conclusion that the unit charged, and to which appellant plead guilty to
deserting in Specification 1, was “030003ARSQ REAR” (UIC: “WG2NTD”).

       Appellant also asserts the failure to include the language “Rear Detachment”
in the unit description in Specification 1 created a fatal variance. Whether deemed a
mere omission or a variance, this failure was not fatal because appellant was not
mislead or prejudiced by the lack of this language. Appellant clearly understood and
agreed the unit he deserted was the “rear detachment” and that was “HHT, 3d
Squadron, 3d Armored Cavalry Regiment, III Corps.” 4


2
 The two different unit organizations and UIC codes listed in appellant’s ERB, when
combined with the parties’ agreed-upon amendments to the units in both
specifications, undermine appellant’s assertion that the two specifications were
charged as the same unit.
3
 The stipulation of fact did not establish that HHT and the rear-detachment were the
same unit for Specification 2.
4
    Even if the omission could be deemed a variance it was not material and did not

                                                                       (continued . . .)



                                            3
FLORES—ARMY 20160252

       There is, however, a substantial basis in fact to question appellant’s plea to
Specification 2. On or about 16 February 2014, appellant returned to military
control. On 3 March 2014, during appellant’s return, his ERB reflects his
reassignment to “030003ARHHT” (“WG2NT0), which makes no reference to a “rear
detachment.” Approximately two weeks after his reassignment, appellant again left
military control. This departure is the genesis of Specification 2 encompassing the
dates from on or about 18 March 2014 to on or about 17 January 2016.

       As to Specification 2, the stipulation of fact and appellant’s providence
inquiry responses are ambiguous as to whether appellant was pleading guilty to
deserting his newly reassigned unit, “030003ARHHT” (UIC “WG2NT0”), or his old
unit, “030003ARSQ REAR (UIC: “WG2NTD”). As accurately recognized in
appellant’s brief, “[t]he [providence] colloquy for both specifications revolved
around the ‘rear detachment’” unit. (Appellant Br. at 5). When questioned by the
military judge as to his unit in Specification 2, appellant replied “I believed that it
was the same unit that I was attached to when I went AWOL.” A review of the
context of the ongoing discussion with the military judge indicates this statement
appears to reference the unit from Specification 1 and appellant’s first departure
from the Army in December 2010. After a thorough review of the record, we hold
that there is a substantial basis to question the factual basis of appellant’s plea to
Specification 2 because it appears appellant only agreed to departing his “rear
detachment” unit (“030003ARSQ REAR” (“WG2NTD”)) when his ERB reflects his
assignment to a different unit “030003ARHHT” (UIC “WG2NT0”) during the entire
time period charged in Specification 2.

       While the government requests this court accept appellant’s pleas by finding
the existence of an organic relationship between “030003ARHHT” (UIC
“WG2NT0”) and “030003ARSQ REAR (UIC: “WG2NTD”), such relationship is not
established on the record. Ratifying the existence of such relationship, particularly
in light of the divergence in the higher parent echelons of the alleged units, III
Corps (Specification 1), and 1st Cavalry Division (Specification 2), is not justified.




(. . . continued)
prejudice the appellant. See United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014);
United States v. Toth, ARMY 200811, 2009 CCA LEXIS 440 at *8 (Army Ct. Crim.
App. 30 Oct. 2009) (stating “[u]nder some circumstances, a variance in the unit or
organization charged may not be fatal.”). In this case, the inclusion of the language
“Rear Detachment” would not substantially change the nature of the offense or
increase the seriousness or potential punishment of the offense. Appellant is not
prejudiced by this lack of language because he is not at risk of prosecution for the
same conduct and he was not misled as to the unit or denied the opportunity to
defend against the specification.


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FLORES—ARMY 20160252

                       Factual Interruption in Specification 1

       The military judge and the parties failed to recognize or address
inconsistencies raised in the stipulation of fact and on the record to appellant
pleading guilty to desertion from on or about 10 December 2010 to on or about 15
February 2014 in Specification 1. Appellant was arrested and held in confinement
pursuant to his “military misconduct” from 14 January 2011 to 21 January 2011.
(Pros. Ex. 1 at 4). This eight-day confinement was a factual interruption in
appellant’s continuous desertion. The inconsistency is further exacerbated by
appellant’s statement that he formed the intent “immediately” to remain away
permanently from his unit. Appellant’s similar intent was not established after 22
January 2011 as required to support a desertion specification after 22 January 2011.
Based on these issues, after omitting the eight days of appellant’s confinement, this
court will only affirm a finding of guilty to the lesser-included offense of AWOL
under Article 86, UCMJ.

       The Manual for Courts-Martial, United States [MCM] authorizes the court to
divide one longer period of absence in an AWOL specification into two or more
separate, shorter AWOLs under that same single specification. MCM, part IV, ¶
10.c.(11) 5. See United States v. Scott, 59 M.J. 718 (Army Ct. Crim. App. 2004). To
resolve the issue raised by appellant, we will modify Specification 1 to account for
the termination date of 13 January 2011. We will indicate a second absence in
Specification 1, beginning 22 January 2011, when appellant left confinement, to the
end-date originally charged.

                                  Post-Trial Delay

       Appellant complains he suffered an undue, post-trial delay because 235 days
elapsed between his court-martial and the convening authority’s action, less five
additional days requested by defense counsel to submit appellant’s clemency matters
pursuant to Rule for Courts-Martial 1105. While we find no due process violation
under Barker v. Wingo, 407 U.S. 514 (1972), we also find no reasonable explanation
for the delay and processing errors in this case and accordingly provide relief in our
decretal paragraph. See Collazo, 53 M.J. at 727.



5
  The MCM states “[a]n accused may properly be found guilty of two or more
separate unauthorized absences under one specification, provided that each absence
is included within the period alleged in the specification and provided that the
accused was not misled. If an accused is found guilty of two or more unauthorized
absences under a single specification, the maximum authorized punishment shall not
exceed that authorized if the accused had been found guilty as charged in the
specification.” MCM, part IV, ¶ 10.c.(11).



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FLORES—ARMY 20160252

                                Sentence Reassessment

       We are able to reassess the sentence in this case, and do so after a thorough
analysis and in accordance with the principles articulated by our superior court 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, 307-08 (C.M.A. 1986). A Court of Criminal Appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “If the court can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of at least
a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.

       Affirming a conviction for two periods of AWOL in Specification 1 and
dismissing Specification 2 reduces appellant’s exposure from ten years of
confinement to eighteen months of confinement. This change in the maximum
sentence, however, is inconsequential in this case because, as a special court-
martial, the sentence was already capped at twelve months of confinement. Despite
the dismissal of Specification 2, appellant stipulated that he absented himself from
the Army for over forty-nine months, which is clearly aggravating evidence. 6
Appellant remains convicted of AWOL, a type of offense with which this court has
experience and familiarity, and can reliably determine what sentence would have
been imposed at trial. We are confident that based on the entire record and
appellant’s conduct, the military judge sitting alone as a special court-martial, would
have imposed a sentence of at least a bad-conduct discharge and confinement for 120
days.

                                   CONCLUSION

       The court affirms only so much of the finding of guilty of Specification 1 as
finds that:

             appellant did, on or about 10 December 2010, without
             authority, absent himself from his unit, to wit:
             Headquarters and Headquarters Troop, 3d Squadron, 3d
             Armored Cavalry Regiment, III Corps, located at Fort
             Hood, Texas, and did remain so absent until he was
             apprehended on or about 13 January 2011; and that

6
 The stipulation of fact between the government and appellant agrees “for the
purposes of this or any subsequent appeal, re-hearing, or re-trial—that the facts
contained in [the] stipulation are true and are admissible [in evidence].” (Pros. Ex.
1 at 1).


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FLORES—ARMY 20160252

             appellant did, on or about 22 January 2011, without
             authority, absent himself from his unit, to wit:
             Headquarters and Headquarters Troop, 3d Squadron, 3d
             Armored Cavalry Regiment, III Corps, located at Fort
             Hood, Texas, and did remain so absent until he was
             apprehended on or about 15 February 2014, in violation of
             Article 86, UCMJ.

       The finding of guilty as to Specification 2 is set aside and that specification is
DISMISSED. After considering the entire record and the post-trial delay, the court
AFFIRMS only so much of the sentence as provides for a bad-conduct discharge and
confinement for ninety days. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of the findings and sentence set aside by
this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                         FOR THE
                                         FOR THE COURT:
                                                 COURT:




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




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