         UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                       UNITED STATES

                                                   v.

                           Senior Airman BRITTNEY L. HALL
                                  United States Air Force

                                       ACM 38241 (recon)

                                          ____ M.J. ____

                                          1 August 2014

        Sentence adjudged 16 October 2012 by GCM convened at Minot Air Force
        Base, North Dakota. Military Judge: Michael A. Lewis (sitting alone).

        Approved Sentence: Dishonorable discharge, confinement for 30 months,
        forfeiture of all pay and allowances, reduction to E-1, and a reprimand.

        Appellate Counsel for the Appellant: Major Matthew T. King.

        Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
        Smith; Major Jason S. Osborne; Captain Matthew J. Neil; and Gerald R.
        Bruce, Esquire.

                                               En Banc

           ALLRED, MARKSTEINER, HECKER, MITCHELL, and WEBER
                         Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                This opinion is subject to editorial correction before final publication.



MARKSTEINER, S.J., delivered the opinion of the Court, in which ALLRED, C.J.,
HECKER, S.J., MITCHELL, J., and WEBER, J., join. WEBER, J., filed a concurring
opinion.
MARKSTEINER, Senior Judge:

       A general court-martial composed of a military judge sitting alone convicted the
appellant, consistent with her pleas, of violating a lawful order on divers occasions;
larceny of military property of a value of over $500; aggravated assault with a loaded
firearm; and obstructing justice, in violation of Articles 92, 121, 128, and 134, UCMJ,
10 U.S.C. §§ 892, 921, 928, 934. The adjudged sentence consisted of a dishonorable
discharge, confinement for 42 months, forfeiture of all pay and allowances, reduction to
E-1, and a reprimand. Pursuant to a pretrial agreement, the convening authority approved
only 30 months of confinement. He approved the remainder of the sentence as adjudged.

       The appellant did not raise any issues on appeal, but this Court specified the
following issue pertaining to the appellant’s larceny conviction, which involved her
entering into a marriage for the purpose of obtaining basic allowance for housing (BAH):

       Whether the appellant’s plea of guilty to larceny was rendered improvident
       by the appellant’s providency inquiry statements that “a few days, a week, a
       week and a half” after the marriage ceremony the appellant and her
       purported husband “decided to give [the marriage] a try.”

       In addition to the specified issue, we also examined the providence of the
appellant’s plea to the larceny charge with respect to whether BAH is “military property.”
After evaluating those issues, we found the appellant’s plea provident, and affirmed the
conviction with the exception of the words “military property.” United States v. Hall,
73 M.J. 645 (A.F. Ct. Crim. App. 2014).

       On 6 June 2014 we granted the Government’s motion for en banc reconsideration,
thereby vacating our previous decision, in order to correct that portion of the decision that
conflicts with our superior court’s precedent regarding the status of BAH as military
property. Having now so reconsidered, we affirm.

                                        Background

       The appellant was an Airman First Class (A1C) assigned to her first duty station at
Minot Air Force Base (AFB), North Dakota. Unmarried enlisted military members
assigned to Minot AFB were required to live in the on-base dormitories until they
reached the rank of Senior Airman (SrA) and had over three years of service. As of
September 2010, the appellant was unmarried, had not attained the rank of Senior
Airman, and had less than three years of service. Thus, she was required to live in the
dormitories and was not entitled to BAH.

      Desiring to live off base, the appellant engaged in a practice known as “ghosting.”
Ghosting is a term used to describe an Airman who maintains a dormitory room on base


                                              2                             ACM 38241 (recon)
but actually lives off base. Airmen who ghost pay for their off-base residences out of
pocket. While ghosting, the appellant actually lived in a two-bedroom apartment in the
city of Minot. She shared the apartment with a male, A1C JY, whom she had previously
dated, and a female, SrA NK, with whom she had, at the time, a romantic relationship.
Like the appellant, A1C JY and SrA NK were also ghosting.

       In September 2010, the three engaged in a conversation with SrA CB who also
lived in their apartment complex. The appellant and her roommates discussed the
financial hardships they were enduring because they were paying for the apartment out of
their own pockets. SrA CB suggested that if the appellant and A1C JY got married, they
could both receive BAH and be better able to afford living off base.

        Over the next week or so, the appellant and A1C JY discussed the idea of getting
married in order to receive BAH. They decided to do so and on 28 September 2010 were
married in a civil ceremony. On the day of the marriage, the appellant provided a copy of
the marriage certificate to the Minot AFB finance office and began receiving BAH with
an effective date of 28 September 2010. Both the appellant and A1C JY continued to
receive BAH until A1C JY separated from active duty on 14 May 2011. On
5 December 2011, the appellant returned to the finance office to update her status to
reflect that her husband had separated from active duty. She then started to receive BAH
at the increased “with dependent” rate. Additionally, she received back-dated “with
dependent” rate BAH retroactively starting on the date A1C JY left active duty.

       It is undisputed that on 28 September 2010, when the appellant and A1C JY were
married, they had no intention of establishing a life as husband and wife. However,
during the Care1 inquiry, the appellant made various statements indicating that at some
point after the marriage began they did attempt to live as husband and wife.

        The military judge noted that she appeared to be qualifying her answers to his
questions about the marriage, and he inquired further about it. The appellant reaffirmed
that at the time of the marriage ceremony she did not intend to live as husband and wife
with A1C JY. She said, however, that they “actually decided to give it a try” a “few days
. . . a week, week and a half” after they were married because they had been living
together and they “felt like [they] could make it work.” In response to a question from
the military judge, the appellant stated she thought she was really married and she and
A1C JY acted like a married couple by doing the things married couples do. She said she
and A1C JY would go out, share money, spend time together, and be intimate, “the things
that anybody in a . . . committed relationship would do except for the fact that we were
legally married.”


1
    United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).



                                                          3              ACM 38241 (recon)
       The court-martial recessed overnight. The next day, the military judge asked the
appellant if she thought the marriage was a sham marriage. The appellant agreed it was a
sham marriage. The military judge concluded the marriage was a sham, articulated his
basis for doing so, and found the plea to larceny to be provident. He then entered
findings of guilty in accordance with the appellant’s pleas.

        Despite the appellant’s vacillation during the Care inquiry, we find nothing in the
record before us, considered in its entirety, presenting a substantial basis in law or fact
causing us to question the providence of the appellant’s guilty plea. We hold that a
marriage that is a sham at its inception remains a sham for purposes of acquiring housing
allowances to which one or both parties to that sham marriage would not otherwise be
entitled.

                                  Providency of the Plea

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and review questions of law arising from the guilty plea de novo. See United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we apply the
substantial basis test, looking at whether there is something in the record of trial, with
regard to the factual basis or the law, that would raise a substantial question regarding the
appellant’s guilty plea.” Id.; see also United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991) (A plea of guilty should not be overturned as improvident unless the
record reveals a substantial basis in law or fact to question the plea.).

       “In reviewing the providence of Appellant’s guilty pleas, we consider his colloquy
with the military judge, as well any inferences that may reasonably be drawn from it.”
United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (citing United States v. Hardeman,
59 M.J. 389, 391 (C.A.A.F. 2004)). At trial, the military judge must (1) have ensured the
appellant understood the facts supporting her guilty plea (“what” she did); (2) have
ensured the appellant understood how the law applies to those facts (“why” she is guilty);
and (3) be satisfied that the appellant is actually guilty. See United States v. Medina, 66
M.J. 21, 26 (C.A.A.F. 2008) (citing Care, 40 C.M.R. at 250-51); United States v. Jordan,
57 M.J. 236, 238 (C.A.A.F. 2002). A military judge abuses his discretion when accepting
a plea if he does not ensure the accused provides an adequate factual basis to support the
plea during the providency inquiry. See United States v. Care, 40 C.M.R. 247, 250-51
(C.M.A. 1969). This is an area in which the military judge is entitled to significant
deference. Inabinette, 66 M.J. at 322.

                               BAH as “Military Property”

      The appellant was charged with stealing military property in the form of BAH.
BAH is “military property” of the United States. United States v. Dailey, 37 M.J. 463,
464 (C.M.A. 1993) (“[BAH] funds are appropriated by Congress; their defined purpose is


                                              4                             ACM 38241 (recon)
to boost morale and to ensure subsistence of servicemembers and their families. They are
‘clearly distinguishable from salary’ and, when improperly made, do not transform into
the individual’s property. These appropriated funds are surely military property.”
(citations omitted)).2 Having reviewed the record and applied the appropriate legal tests
as described above, we find no error in the military judge’s conclusion as to the nature of
BAH as military property.

                         Nature and Legal Status of the Appellant’s Marriage

      We reject the proposition that the appellant was ever in a valid marriage for
purposes of being entitled to military benefits flowing from that marriage. Although the
validity of a marriage is ordinarily a question of fact to be decided in accordance with
state law, state law is not determinative where a service member enters into a sham
marriage to fraudulently obtain government benefits or to commit immigration fraud.
Lutwak v. United States, 344 U.S. 604, 611 (1953); United States v. Bolden, 28 M.J. 127,
130 (C.M.A. 1989). As noted in Bolden:

          Perhaps under that [state] law—which, according to accepted principles of
          conflict of laws, would govern the validity of the marriage—participation
          in a marriage ceremony is insufficient to create a valid marriage, if the
          parties never intended to live together as husband and wife. In that event,
          completion of the marriage ceremony clearly would not shield [the
          appellant] from conviction of larceny.

    28 M.J. at 129.

       We conclude that regardless of the legitimacy of her marriage under North Dakota
law, the appellant was not entitled to use this marriage to claim housing allowance
benefits.

       In Bolden, our superior court upheld an appellant’s conviction for conspiring to
defraud the government out of housing allowance money by orchestrating a sham
marriage between the appellant’s friend, Bahre, and his girlfriend, Willoughby. See
Bolden, 28 M.J. at 131. Although the history and living arrangements between Bahre and
Willoughby differed from those between the appellant and A1C JY, the Court’s
overarching rationale for upholding Bolden’s conviction is equally applicable to the case
now before us. In both cases, the parties to the sham marriages undertook courses of
conduct specifically intending—with singular focus—to gain access to government-
funded payment streams to which they would not otherwise be lawfully entitled.



2
    Our holding to the contrary in United States v. Thomas, 31 M.J. 794 (A.F.C.M.R. 1990) is therefore overruled.


                                                           5                                     ACM 38241 (recon)
       “Even if the marriage was valid under [state] law,” our task would be to “inquire
whether Congress intended for a servicemember to receive a quarters allowance as a
married person if the marriage was a sham.” Bolden, 28 M.J. at 129-30 (citing Lutwak,
344 U.S. at 605 (holding validity of marriage not determinative in case of servicemen
convicted of engaging in sham marriages with non-citizens where purpose of marriages
was to circumvent immigration laws)). In Bolden, our superior court noted it was
“convinced that when Congress authorized a basic allowance for quarters for a
servicemember with ‘dependents,’” Congress “did not intend that the term include a
person who was linked to a servicemember by only a sham marriage.” Id. at 130. The
Court further noted Congress “never intended to encourage or subsidize the sort of
arrangement into which [Bahre and Willoughby] entered,” and “there is nothing unfair in
imposing criminal liability on a servicemember who seeks to obtain allowances from the
Government by entering into a fake marriage.” In light of Lutwak, the Court was
“convinced that Congress meant to impose such liability.” Id. at 130-131.

       “The crucial issue in determining the legitimacy of a marriage is not the couple’s
way of life within the marriage but the spouses’ intent at the time the marriage was
contracted.” Note, The Constitutionality of the INS Sham Marriage Investigation Policy,
99 HARV. L. REV. 1238, 1249 (1986). Under U.S. immigration law, a sham marriage is
void from the start for purposes of securing residency status. In Matter of Awwal, the
U.S. immigration service held that even in a case where the U.S. citizen stepparent of an
alien stepson had demonstrated “active parental interest,” the child enjoyed no
advantageous immigration status customarily available to stepchildren because the
father’s original marriage to the boy’s mother was a sham. 19 I. & N. Dec. 617, 619-21
(B.I.A. 1988). “A sham marriage is invalid from its inception.” Id. at 621. See also 8
U.S.C. § 1325 (“Any individual who knowingly enters into a marriage for the purpose of
evading any provision of the immigration laws shall be imprisoned for not more than 5
years, or fined not more than $250,000, or both.”).

      Military law follows suit. In Bolden, the trial judge instructed the members:

      [A] sham marriage is void under the law of this country as against public
      policy and such a marriage can have no validity. Mutual consent is
      necessary to every contract and no matter what forms or ceremonies the
      parties go through indicating the contrary, they do not contract if they do
      not in fact assent. Marriage is no exception to this rule. If the spouses
      agree to a marriage only for the sake of representing it as such to the
      outside world, they have never really agreed to be married at all. They
      must assent to enter into the relation as it is ordinarily understood and it is
      not ordinarily understood as merely a pretense or a cover to deceive others.

United States v. Bolden, 23 M.J. 852, 854 (A.F.C.M.R. 1987) (emphasis added).
Affirming our holding in Bolden, our superior court concluded that “the Government’s


                                             6                             ACM 38241 (recon)
evidence was legally sufficient to sustain the findings of guilty and the instructions
adequately informed the court members of the applicable legal principles.” Bolden,
28 M.J. at 131.

       In a later decision, our superior court expressly stated the test for determining
whether a marriage is a sham entered into solely for the purpose of obtaining government
benefits is whether “the two parties have undertaken to establish a life together and
assume certain duties and obligations,” as this is “the common understanding of a
marriage.” United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000) (citing Lutwak,
344 U.S. at 611). This focus on the state of mind of the parties at the inception of the
marriage is consistent with Congress’ enactment of 37 U.S.C. § 423, which states:

        [P]ayment of an allowance, based on a purported marriage . . . before
        judicial annulment or termination of that marriage, is valid, if a court of
        competent jurisdiction adjudges or decrees that the marriage was entered
        into in good faith on the part of the spouse who is a member of a uniformed
        service or if, in the absence of such a judgment or decree, such a finding of
        good faith is made by the Secretary concerned or by a person designated by
        him to investigate the matter.

(emphasis added). Through this statute, Congress is electing not to recoup from a
military member allowances which were paid to her when she entered into a marriage in
good faith but where that marriage was later found to be invalid.3 Bolden, 28 M.J. at 130
(“Congress did not intend to impose criminal liability on persons who had failed to
satisfy technical legal requirements but were living together as husband and wife in a
good faith belief that they were married . . . .”). In contrast, if a determination is made
(by a court or a military service Secretary) that the marriage was entered into in bad faith,
the military member would not be entitled to keep the money previously paid to her.



3
  The Department of Defense has implemented this provision via regulations. “A member’s lawful spouse . . . [is]
always [a] dependent[] for housing allowances purposes,” but “[a]ny case in which the validity of a member’s
marriage is questioned is a case of doubtful relationship.” Joint Federal Travel Regulation, Vol. 1, Uniformed
Service Members, ¶¶ U10102, U10104 (1 October 2009). Some circumstances are listed where the Department will
(and will not) recognize marriages as valid for housing allowances purposes (common law marriages, foreign nation
divorces, etc.). Id. ¶ U10104. Under “Purported Marriage,” it notes that a member with “no lawful spouse” due to a
void marriage cannot receive a housing allowance at the dependent rate. Id. Upon discovery of the marriage
invalidity (a listed example being a spouse who already had a preexisting marriage), the housing allowances must
stop but the member may retain payments already received if they are “validated” by a process through which a
“determination on the validity of a marriage (doubtful cases) or for validation of [past] payments” is made. Within
that process, payments of allowances based on a “purported marriage . . . are valid if . . . [a] court of competent
jurisdiction adjudges or decrees that the military member entered the marriage in good faith,” or, in the absence of
such a decree, “a finding of good faith is made by the Secretary of the Military Service” or his/her designee.
Department of Defense Financial Management Regulation, Vol. 7A, Ch. 50, ¶ 500601 (July 2006) (emphasis
added). “Payments based on invalid marriages are considered erroneous payments or overpayments unless
validated.” Id. ¶ 500603.


                                                         7                                     ACM 38241 (recon)
       Others skeptical of the position we take today may posit that people can get
married for a variety of reasons. For example, some marry to gain approval of a family
member, or to share in raising a child. “In an era of two-career relationships, the timing
of marriage and the nature of marital living arrangements may be heavily influenced by
such unromantic factors as tax laws, occupational benefits, and professional
opportunities.” Phillips, 52 M.J. at 273 (Effron, J., dissenting). Who is to say what is a
“sham” or an “invalid” reason for marriage? Congress. In enacting the authorization for
housing allowance, Congress answered the question about who is authorized to receive
funds from the government to provide for a dependent. See Bolden, 28 M.J. at 130.
What we hold today is simply this: It is not the absence of a perfect or ideal “love, honor,
and cherish” motivation of the parties that renders the consequences flowing from the
appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a
singularly focused illicit one—an intent to fraudulently acquire a government payment
stream—that does so.

       Because we find her marriage to be void for housing allowance purposes from the
outset, we do not find any relevance in the appellant’s decision to “make a go” of her
marriage or in her described behavior after the date of her marriage ceremony. She
admitted entering into the marriage in bad faith and therefore she is not entitled to the
housing allowance benefit Congress intended to support legitimate spouses and other
valid dependents of military personnel.

        Though the appellant attempted to recast her actions in as favorable a light as
possible during the Care inquiry by initially equivocating on various points, the military
judge pressed where he needed to and in so doing established the following facts, which
we find sufficient to leave her guilty plea undisturbed. In light of these facts, we uphold
the military judge’s decision that the appellant’s plea was not invalidated by her asserted
belief that within “a few days . . . a week, a week and a half” the appellant thought she
was legally married, that they acted like husband and wife, that she believed she was
married, and that she conducted herself as though she was married. The military judge
recognized the appellant described a matter that may be inconsistent with her plea.
Subsequently, he conducted additional inquiry such as to clarify the appellant’s
admission she was not entitled to the money, and only acquired possession of the funds
under false pretenses with a criminal state of mind. As the appellant explained:

       I deceived the Air Force because when me and [A1C JY] initially got
       married, we did not establish—or we did not intend to establish a marital
       life together. And when I went back in December to the Finance office to
       get BAH with-dependent rate, we had not established a life together at that
       point.

        The appellant admitted she entered into the marriage ceremony in bad faith,
clarifying, “[W]e got married just to be able to stay off base. It wasn’t for me and him to


                                              8                               ACM 38241 (recon)
establish a life together when we first got married.” The appellant further explained, “At
the time when we did initially—or when we got married, it wasn’t under good faith or for
the reason of binding two people as one in a marriage.” The appellant also admitted,
“[W]e got the marriage certificate under false pretenses.”

       Prior to the sham marriage, the appellant lived with SrA NK, who was her then
current girlfriend, and with A1C JY, whom she had previously dated. The appellant
spent some nights in A1C JY’s room and other nights in SrA NK’s room. There is no
indication the marriage in any way altered the sleeping arrangements or relationships
among the roommates. Quite to the contrary, by early February 2011 A1C JY had moved
out, and the appellant and SrA NK moved into a rented house together along with another
roommate. Notably, also in February 2011, the appellant threatened SrA NK with a
loaded gun because of concerns that SrA NK had cheated on her. On these facts, we do
not agree that the appellant believed she and A1C JY “lived together as husband and
wife.” See Phillips, 52 M.J. at 272 (observing that evidence of a spouse’s romantic
relationships with others “made it more probable that [the married couple] intended to
continue their separate lives and relationships” where those relationships existed before
and continued after the marriage).

       As to sharing money, the appellant offered no specifics except that, after A1C JY
moved out, “When he would call and tell me he needed money, I would give it to him.”
When asked why she provided money to A1C JY when he would call and ask for it, she
answered, “Because he needed it, and I’ve always been there for him to help him out,
whatever he needed.” When the judge asked her to specify whether she was required to
support him because they were married or for some other reason, she answered, “Well, I
was required to provide him support, but it was because he—me and him are really,
really close, sir.” Nothing about her statement suggests her decision to occasionally
“help out” A1C JY financially was part of “establish[ing] a life together and assum[ing]
certain duties and obligations,” see Phillips, 52 M.J. at 272, or that she did so because she
was lawfully responsible for A1C JY as her spouse.

       She did not say she and A1C JY shared bills, split grocery or other living
expenses, paid taxes as a married couple, or in any way meaningfully managed their
finances as married couples customarily do. Rather, she offered nothing beyond broad
generalities constituting little more than what appears to be an effort to minimize her
misconduct in the eyes of others present in the courtroom.

      Considering the entire record before us, including this appellant’s demonstrated
propensity to attempt to shape the evidence as favorably as possible to her advantage,4

4
  The appellant was also convicted of wrongfully endeavoring to influence Senior Airman (SrA) NK’s testimony as
a witness during the appellant’s Article 32, UCMJ, 10 U.S.C. § 832, investigation by, inter alia, providing SrA NK
with a handwritten list of things she should tell the investigating officer regarding the nature of their relationship and
when it started.


                                                            9                                       ACM 38241 (recon)
and in light of the discretion accorded to a military judge when evaluating the providence
of an accused’s guilty plea, we find nothing in the appellant’s meandering, off again–on
again statements during the Care inquiry to reveal a substantial basis in law or fact
sufficient to cause us to question the plea. See Inabinette, 66 M.J. at 322. Rather, those
statements reflect the reality Judge Cox observed in United States v. Garcia, 44 M.J. 496,
498 (C.A.A.F. 1996) (quoting United States v. Penister, 25 M.J. 148, 153 (C.M.A. 1987)
(Cox, J., concurring)):

        Often an accused is reluctant to admit to a particular aspect of an offense.
        However, that should not vitiate his guilty plea if he recognizes that the
        evidence against him will prove the point, and he admits his guilt to the
        offense.

        We should not overlook human nature as we go about the business of
        justice. One aspect of human beings is that we rationalize our behavior
        and, although sometimes the rationalization is “inconsistent with the plea,”
        more often than not it is an effort by the accused to justify his misbehavior.

        A good trial judge can usually sort out the guilty plea and determine if an
        accused is so pleading because he has committed the offense charged.

       In the case before us, we believe the trial judge effectively sorted out the
appellant’s narrative and appropriately accepted her guilty plea. Accordingly, as to the
Specification of Charge IV, we find the military judge did not abuse his discretion by
accepting the appellant’s plea of guilt.

                                                  Conclusion

       The approved findings and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of the appellant occurred.5 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




5
  This Court’s initial decision was issued on 11 April 2014, but due to our grant of reconsideration en banc more
than 540 total days have elapsed since the case was first docketed with us. See United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006). Assuming the total appellate processing of this case raises a presumption of
unreasonable delay, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice. We find that the appellate delay in this case was harmless beyond a reasonable doubt.
See Moreno, 63 M.J. at 135-36; see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). We are cognizant
of our ability to provide relief in the absence of prejudice but decline to do so in this case. See United States v.
Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).




                                                        10                                     ACM 38241 (recon)
Accordingly, the approved findings and sentence are

                                          AFFIRMED.

Senior Judge MARKSTEINER participated in this decision and authored the opinion of
the Court prior to his reassignment. Judge TELLER was not a member of the Court
when it reconsidered this case en banc and did not participate.

WEBER, Judge, concurring:

       I fully concur with the Court’s opinion detailing the reasoning behind “sham
marriage” cases. I also agree with the opinion that the appellant did not call into question
the providency of her plea by stating that, after the sham marriage began, she and her co-
conspirator made some attempt to “give it a try.” I write separately simply to stress that a
military judge enjoys “broad discretion” in deciding to accept a guilty plea, and this
decision will not be overturned unless the record as a whole shows “a substantial basis in
law and fact for questioning the guilty plea.” United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991))
(internal quotation marks omitted).

       The appellant clearly and repeatedly admitted that she entered into the “marriage”
for the sole purpose of defrauding the U.S. Government out of housing allowances. Her
providency inquiry revealed that throughout most if not all of the charged time frame, the
appellant and her “husband” were not living together as husband and wife in any true
sense of the phrase. The military judge recognized that the appellant’s statements about
what occurred after the sham marriage commenced raised some issue that required
further exploration. He thoroughly and methodically explored this issue, giving the
appellant plenty of time to discuss this matter with her defense counsel. Time and again,
the appellant reiterated that she understood the issue raised by her statements, repeated
that she was guilty because her intent was to defraud the government out of housing
allowances through a sham marriage, and reiterated her desire to plead guilty. The
military judge did exactly what he should have, and there is no “substantial basis” for
questioning the plea. Given the significant deference he enjoys in deciding whether to
accept a guilty plea, I would end the analysis there.




              FOR THE COURT


              LEAH M. CALAHAN
              Deputy Clerk of the Court



                                             11                            ACM 38241 (recon)
