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

                            UNITED STATES, Appellee
                                         v.
                            Sergeant DONALD S. HALE
                           United States Army, Appellant

                                   ARMY 20121020

              Headquarters, 19th Expeditionary Sustainment Command
                         Wendy P. Daknis, Military Judge
               Major Joseph P. Gross, Deputy Staff Judge Advocate 1


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Major
Candace N. White Halverson, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Major
Matthew A. Kopetski, JA (on brief).


                                   13 February 2015

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

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of larceny of military property of a value
over $500, one specification of assault consummated by a battery, one specification
of making a false and fraudulent claim in an amount over $500, and one
specification of wrongfully communicating a threat, in violation of Articles 121,
128, 132, and 134, UCMJ, 10 U.S.C. §§ 921, 928, 932, 934 (2006). The military
judge sentenced appellant to a bad-conduct discharge, confinement for nine months,
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

1
  Article 34, Uniform Code of Military Justice [hereinafter UCMJ], requires that the
convening authority’s “staff judge advocate” provide pre-trial advice before any

                                                                       (continued . . .)
HALE—ARMY 20121020

       This case is before the court for review under Article 66, UCMJ. Appellant
raises one assignment of error asserting that the military judge elicited insufficient
facts to support his plea of guilty to communicating a threat. We agree and hold the
military judge abused her discretion by accepting appellant’s plea of guilty to
communicating a threat, which was prejudicial to good order and discipline, where
appellant provided insufficient facts to establish such prejudice.

      Appellant was convicted of, inter alia, Charge V and its Specification, which
alleged:

             In that [appellant], did, at or near Camp Stanley, Republic
             of Korea, on or about 1 October 2011, wrongfully
             communicate to Ms. [CG] a threat “I’m going to make
             sure you are dead” or words to that effect, and that
             conduct was to the prejudice of good order and discipline
             in the armed forces.

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies 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 UCMJ art. 45(a); R.C.M. 910(e).

       During the providence inquiry regarding the affected specification, the
military judge asked appellant to explain why his threat was prejudicial to good
order and discipline. Appellant responded: “As a Soldier I’m supposed to have



(. . . continued)
specification under a charge is referred to a general court-martial. “Another person
may prepare the advice, but the staff judge advocate is, unless disqualified,
responsible for it and must sign it personally.” Rule for Courts-Martial [hereinafter
R.C.M.] 406(b) discussion; see also United States v. Hayes, 24 M.J. 786, 788
(A.C.M.R. 1987) (“The pretrial advice must be signed by the staff judge advocate or
the acting staff judge advocate . . . .”). Upon our review of the record, there is no
evidence that the Deputy Staff Judge Advocate was the “Acting Staff Judge
Advocate” when he signed the pretrial advice. However, any defect in the pretrial
advice is not jurisdictional and is waived if not raised by motion prior to entry of
pleas. See R.C.M. 905(b)(1), (e); R.C.M. 406(b) discussion; see generally United
States v. Murray, 25 M.J. 445 (C.M.A. 1988); United States v. Corcoran, 40 M.J.
478, 484 (C.M.A. 1994).



                                            2
HALE—ARMY 20121020

better control of my feelings and at that time I showed a total lack of control, Your
Honor.” The stipulation of fact offered little more on this question:

             Threatening Ms. [CG] is conduct that was to the prejudice
             of good order and discipline in the armed forces because
             he knew that making a threat to kill Ms. [CG] was a cause
             against public peace and sensibilities.      Additionally,
             threatening to kill a civilian is conduct likely to bring
             discredit upon the armed forces. [2]

      Article 134, UCMJ, contains the general article:

             Though not specifically mentioned in this chapter, all
             disorders and neglects to the prejudice of good order and
             discipline in the armed forces, all conduct of a nature to
             bring discredit upon the armed forces, and crimes and
             offenses not capital, of which persons subject to this
             chapter may be guilty, shall be taken cognizance of by a
             general, special, or summary court-martial, according to
             the nature and degree of the offense, and shall be punished
             at the discretion of that court.

10 U.S.C. § 934.

      Before criminal liability may be affixed to an appellant under clause one, he
must admit facts in the providence inquiry that evidence the conduct “cause[d] a
reasonably direct and palpable injury to good order and discipline.” United States v.
Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006).

             “To the prejudice of good order and discipline” refers only
             to acts directly prejudicial to good order and discipline
             and not to acts which are prejudicial only in a remote or
             indirect sense. Almost any irregular or improper act on
             the part of a member of the military service could be
             regarded as prejudicial in some indirect or remote sense;
             however, this article does not include these distant effects.
             It is confined to cases in which the prejudice is reasonably
             direct and palpable.



2
  The government did not allege that appellant’s communication of the threat was
conduct of a nature to bring discredit upon the armed forces.




                                           3
HALE—ARMY 20121020

Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 60.c.(2)(a).

       Military judges frequently confront difficult providence inquiries where, as
here, accused soldiers tend to minimally describe misconduct, and counsel for both
sides do less than required to facilitate a legally adequate exchange. While we
recognize that challenge—and appellant’s inarguably improper conduct in the
affected specification—we may only affirm the findings to the extent the law allows.

                                  CONCLUSION

      The findings of guilty of Charge V and its Specification are set aside and that
charge and its specification are dismissed. The remaining findings of guilty are
AFFIRMED.

       Reassessing the sentence on the basis of the error and in accordance with the
principles of 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), 3 the sentence is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of the portion of the findings set aside by this decision, are
ordered restored.

      Senior Judge LIND and Judge KRAUSS concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




3
  The gravamen of the case—appellant’s fraudulent and violent behavior—remains
unchanged, and we are confident that absent the error, the military judge would have
adjudged the same sentence.




                                          4
