UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            HAIGHT, PENLAND, and WOLFE
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Sergeant KENDRELL J. MARSHALL
                          United States Army, Appellant

                                   ARMY 20131026

                     Headquarters, United States Army South
                          Randall Fluke, Military Judge
            Lieutenant Colonel Daniel P. Saumur, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major Daniel
D. Derner, JA; Major Daniel M. Goldberg, JA (on brief).


                                   5 November 2015

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

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of aggravated sexual assault of a child on divers occasions,
indecent liberties with a child, aggravated sexual abuse of a child, and indecent
language communicated to a child under sixteen years, in violation of Articles 120
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2006 &
Supps. I-V) [hereinafter UCMJ]. The military judge sentenced appellant to a
dishonorable discharge, confinement for 296 months, and reduction to the grade of
E-1. In accordance with a pretrial agreement, the convening authority approved
three years of confinement and the remainder of the adjudged sentence.

      We review this case under Article 66, UCMJ. Appellant raises one
assignment of error, which the government concedes, and we grant relief thereon.
Moreover, we grant additional relief based on a matter not raised by the parties. We
MARSHALL — ARMY 20131026

have also considered the matter personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); it lacks merit.

                                     DISCUSSION

       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)). 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 UCMJ art. 45(a); Rule for Courts-Martial
[hereinafter R.C.M.] 910(e).

                              A. Specification 2, Charge I

       Appellant argues, and the government concedes, the military judge elicited
insufficient facts in support of appellant’s plea of guilty to Specification 2 of Charge
I, indecent liberties with a child, in violation of Article 120, UCMJ. This
specification charged appellant with tickling his stepdaughter, TG, “over her shirt
and taking her pants off, with the intent to arouse [his] sexual desire . . . .” It is
apparent from the stipulation of fact that this charged offense arose from an incident
in November 2009, and that appellant desisted from his lewd conduct that night after
his wife called to him from another room and unwittingly interrupted his advances.
However, during the providence inquiry into this offense, appellant described a
separate incident, one in December 2009, which began with his prurient tickling of
TG and ended with him sexually assaulting her. Plainly put, appellant’s providence
inquiry included no meaningful discussion of the specific misconduct charged in
Specification 2 of Charge I; nonetheless, he was convicted of that offense by the
military judge.

                          B. The Specification of Charge III

       Though not raised by the parties, we also note error with respect to Charge III
and its Specification. This specification alleges appellant communicated indecent
language to TG. The language was inarguably indecent under the law. However,
while appellant adequately described the discredit it tended to bring upon the armed
forces, he wholly failed to describe how it was prejudicial to good order and
discipline in the armed forces. We recognize the significant extent to which
appellant’s indecent language may have prejudiced the well-being and readiness in
an Army family. But appellate review is not the phase at which such prejudice may
be first identified. In a guilty plea, an appellant must recognize and describe it at
trial.




                                            2
MARSHALL — ARMY 20131026

                                    CONCLUSION

       The finding of guilty of Specification 2 of Charge I is set aside and that
specification is DISMISSED. Further, we dismiss the language “to the prejudice of
good order and discipline in the armed forces and” from the Specification of Charge
III. The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors 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, 308 (C.M.A. 1986), the sentence is AFFIRMED.
The gravamen of the case—appellant’s serial child sex abuse—and the aggravation
evidence remain unchanged, and we are confident that absent the errors, the military
judge’s sentence would have been at least as severe as that which the convening
authority approved.

       All rights, privileges, and property, of which appellant has been deprived by
virtue of the portions of the findings set aside by this decision are ordered restored.

      Senior Judge HAIGHT and Judge WOLFE concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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