                       UNITED STATES, Appellee

                                    v.

                  Jamahl D. Gaston, Senior Airman
                     U.S. Air Force, Appellant

                              No. 05-0462

                        Crim. App. No. S30372

       United States Court of Appeals for the Armed Forces

                       Argued December 7, 2005

                        Decided March 3, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON, J., joined. BAKER, J., filed a
separate opinion concurring in the result, in which CRAWFORD,
J., joined.

                                 Counsel

For Appellant: Captain Kimberly A. Quedensley (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Colonel Carlos
L. McDade, Major Sandra K. Whittington, and Major James M.
Winner.

For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major John C. Johnson.

Military Judge:   Daryl E. Trawick


       This opinion is subject to revision before final publication.
United States v. Gaston, No. 05-0462/AF

     Judge ERDMANN delivered the opinion of the court.

     Senior Airman Jamahl D. Gaston was charged with absence

without leave terminated by apprehension and missing a movement

by design in violation of Articles 86 and 87, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 886, 887 (2000).    He pled

guilty and was convicted on both charges before a military judge

at a special court-martial.   He was sentenced to a bad-conduct

discharge, confinement for six months, a reduction in grade to

E-1, and partial forfeitures.   Because the military judge failed

to inform Gaston that a reduction to E-1 was a possible

punishment in the case, the convening authority did not approve

the reduction but approved the remainder of the sentence as

adjudged.   The Air Force Court of Criminal Appeals affirmed the

findings and sentence with a single modification which addressed

the forfeitures.   United States v. Gaston, No. ACM S30372 (A.F.

Ct. Crim. App. Mar. 7, 2005).

     This court will set aside a plea of guilty where there is

“a substantial basis in law and fact for questioning the guilty

plea.”   United States v. Milton, 46 M.J. 317, 318 (C.A.A.F.

1997) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.

1991)) (quotation marks omitted).    In order to establish that

Gaston’s absence from his unit was terminated by apprehension,

the facts on the record must establish that his return to

military control was involuntary.    See United States v. Fields,



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United States v. Gaston, No. 05-0462/AF

13 C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962).     We granted

review to determine whether Gaston’s providence inquiry

established that he was guilty of absence without leave

terminated by apprehension.    We also granted review to determine

whether the sentence affirmed by the Court of Criminal Appeals

was greater than the sentence approved by the convening

authority in violation of Article 66(c), UCMJ, 10 U.S.C. § 866

(c) (2000).1

                              BACKGROUND

       The unauthorized absence charge alleged that Gaston “[d]id,

at or near OAFB [Offutt Air Force Base], Nebraska, [on or about]

13 Jan 03, without authority, absent himself from his place of

duty at which he was required to be, to wit:     Bldg 457, Rm 700,

located at OAFB, NE and did remain absent until he was

apprehended [on or about] 17 Jan 03.”      At a pretrial motion

hearing, Gaston testified regarding the termination of his

absence:    “I was notified by the dorm director that everyone was

looking for me, and I immediately told him that I needed to get

1
    We granted review of the following specified issues:

            I. WHETHER APPELLANT’S GUILTY PLEA TO BEING
            ABSENT FROM HIS PLACE OF DUTY AT WHICH HE
            WAS REQUIRED TO BE AND TO HIS ABSENCE BEING
            TERMINATED BY APPREHENSION WAS PROVIDENT.

            II. WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS IMPROPERLY INCREASED APPELLANT’S
            SENTENCE BY APPROVING A TWO-THIRDS



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United States v. Gaston, No. 05-0462/AF

dressed and meet him in the front.   And when I did that, he said

he would call the Shirt to come down and pick me up, and they

did so.”

     Gaston’s statements at the providence inquiry regarding the

unauthorized absence offense consist of the following:

           I am guilty of this offense because on 13
           January 2003, I remained absent from my
           unit, which was the 38th Reconnaissance
           Squadron. I was in my dorm room and just
           did not leave. I was not supposed to be on
           the base on 13 January 2003; however, since
           I did not report to the location where I
           should have been, I knew that I had a duty
           to report to work that day and let my
           squadron know I was there –- where I was. I
           did not have proper authority from anyone
           who could give me leave or permission to be
           absent from my squadron, and I remained
           absent in my room until 17 January 2003,
           when the dorm manager came to my room and
           told me that my squadron was looking for me.
           I am confident that my absence was
           terminated by apprehension because neither
           me, nor anyone working on my behalf,
           voluntarily told anyone where I was. I was
           found when the squadron came looking for me.


The day before the beginning date for the unauthorized absence

offense, Gaston’s unit deployed to Saudi Arabia and his failure

to move with his unit formed the basis for the missed movement

charge.

     The sentence imposed by the military judge included, in

part, “forfeiture of two-thirds pay per month for six months;



           FORFEITURE OF PAY AT THE E-4 RATE RATHER
           THAN AT THE E-1 RATE.

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United States v. Gaston, No. 05-0462/AF

and a reduction to E-1.”   When the convening authority acted on

the sentence he was advised that Gaston had not been notified

that his sentence could include a reduction.    To remedy this

error the convening authority approved all of the adjudged

sentence except for the reduction to E-1.   On review, the Court

of Criminal Appeals noted that Rule for Courts-Martial (R.C.M.)

1003(b)(2) requires that a sentence which includes partial

forfeitures must state the dollar amount to be forfeited each

month, and that the military judge had erroneously referenced

“forfeitures of two-thirds pay per month for six months.”    To

correct this error the lower court affirmed the sentence

approved by the convening authority, but instead of “two-thirds

pay” the court stated the forfeiture would be $1,053.00 per

month, an amount equal to two-thirds pay at the E-4 rate.

                            DISCUSSION

1.   Termination of Absence by Apprehension

     This court will set aside a plea of guilty if it finds that

there is “a substantial basis in law and fact for questioning

the guilty plea.”   United States v. Milton, 46 M.J. 317, 318

(C.A.A.F. 1997) (quoting United States v. Prater, 32 M.J. 433,

436 (C.M.A. 1991)) (quotation marks omitted).   Gaston contends

that it was not established at his providence inquiry that his

return to military control was involuntary and therefore there

was no basis for finding that his absence was terminated by



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United States v. Gaston, No. 05-0462/AF

apprehension.    The Government responds that Gaston’s return to

military control was involuntary because it was not initiated by

him and that on this basis the court can find his plea to

absence terminated by apprehension was provident.   This court

has stated:

     “[a]pprehension” contemplates termination of the
     accused’s absence in an involuntary manner; and
     “termination otherwise” is an absence ended “freely
     and voluntarily.” In other words, the Manual
     provision does not differentiate between these two
     classes of termination by means of particular
     situations, but rather by way of a broad definition
     for each category.

Fields, 32 C.M.R. at 196 (discussing United States v.

Nickaboine, 3 C.M.A. 152, 11 C.M.R. 152 (1953)).    Based on this

differentiation, the military judge instructed Gaston,

“Apprehension means that your return to military control was

involuntary.    It must be shown that neither you nor persons

acting at your request initiated your return.”

     The lower court noted that the providence inquiry in this

case was “exceptionally brief and certainly not a model for how

such an inquiry should be conducted.”   Gaston, No. ACM S30372,

slip op. at 1.   Because of this, we will look to the entire

record to determine whether facts to support Gaston’s guilty

plea have been established.   See United States v. Jordan, 57

M.J. 236, 239 (C.A.A.F. 2002) (“When this Court has addressed a

bare bones providence inquiry, we have not ended our analysis at

the edge of the providence inquiry but, rather, looked to the


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United States v. Gaston, No. 05-0462/AF

entire record to determine whether the dictates of Article 45,

RCM 910, and [United States v. Care, 18 C.M.A. 535, 40 C.M.R.

247 (1969)] and its progeny have been met.”).

        Gaston’s providence inquiry established that “the dorm

manager came to my room and told me that my squadron was looking

for me.”    He concluded that he was involuntarily apprehended

because “neither me, nor anyone working on my behalf,

voluntarily told anyone where I was.    I was found when the

squadron came looking for me.”    When testifying on a pretrial

motion Gaston stated that when the dorm manager told him that

“everyone was looking for me, . . . I immediately told him that

I needed to get dressed and meet him in the front.    And when I

did that, he said he would call the Shirt to come down and pick

me up, and they did so.”

        While these statements establish that it was the dorm

manager who initiated contact with Gaston, it does not

automatically follow that the contact with the dorm manager

constituted Gaston’s return to military control.    The Manual for

Courts-Martial defines apprehension by military authority as

requiring apprehension “of a known absentee.”    Manual for

Courts-Martial, United States pt. IV, para. 10.c.(10)(b) (2005

ed.).    There is no evidence that the dorm manager knew that

Gaston was an absentee or that he knew anything other than that

Gaston was being sought by his squadron.    Gaston did not make



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United States v. Gaston, No. 05-0462/AF

the dorm manager aware of his status as an absentee.    See United

States v. Jackson, 1 C.M.A. 190, 192-93, 2 C.M.R. 96, 98-99

(1952) (finding that a servicemember who was tried and convicted

at a summary court-martial by one command, while he was absent

without leave from another command, has not had his absence

terminated because the command that exerted control over him was

not aware of his status as an absentee).

     Article 7, UCMJ, 10 U.S.C. § 807 (2000), defines

apprehension as “the taking of a person into custody.”    It

states that “[a]ny person authorized under regulations governing

the armed forces to apprehend persons subject to this chapter or

to trial thereunder may do so upon a reasonable belief that an

offense has been committed and that the person apprehended

committed it.”   Article 7(b), UCMJ.   Nothing in the record

establishes that the dorm manager believed Gaston had committed

an offense or that the dorm manager had the authority to take

him into custody.   Without this authority, the mere fact that

the dorm manager made contact with Gaston while he was on base

and in his dormitory room is not sufficient to establish that

Gaston was under military control.     See Jackson, 2 C.M.R. at 98

(“[A]n absentee’s casual presence at a military installation,

unknown to competent authority and for purposes primarily his

own, does not end his unauthorized absence.”).




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United States v. Gaston, No. 05-0462/AF

     The dorm manager also did not take steps to take Gaston

into custody.   Gaston’s statements to the military judge do not

establish that the dorm manager exerted military control over

him or control of any type.   The dorm manager did nothing other

than tell Gaston that his squadron was looking for him when he

found him in his dorm room.   The dorm manager did not give

Gaston any orders to turn himself in, to go anywhere, or to

remain where he was, and Gaston did not act pursuant to any

instruction or request by the dorm manager.   See United States

v. Raymo, 1 M.J. 31, 32-33 (C.M.A. 1975) (finding exertion of

military control over a servicemember who was absent without

leave where an officer with authority to apprehend the

servicemember directed him to go speak to the FBI, and the

servicemember subsequently complied with that direction).     Only

after Gaston said he would meet the dorm manager in front did

the manager say that he would call Gaston’s first sergeant.

Nothing in this encounter leads us to believe that Gaston was in

military custody or control based upon his brief contact with

the dorm manager.

     We conclude that when the dorm manager told Gaston his

squadron was looking for him, Gaston voluntarily surrendered by

going to the front of the dorm where he met Colonel Kramer who

then read him his rights and placed him on restriction.   Because

we conclude that Gaston’s absence was terminated by his



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United States v. Gaston, No. 05-0462/AF

voluntary surrender rather than by apprehension we affirm

Gaston’s conviction only for the lesser offense of absence

without authority terminated by surrender to military authority.

     We further conclude that this error was harmless as to

sentencing.   First, this change has no impact on the maximum

authorized sentence in this case which was limited by the

jurisdiction of the special court-martial.   See Article 19,

UCMJ, 10 U.S.C. § 819 (2000).   Additionally, in arguing on

sentencing trial counsel did not focus on the nature of Gaston’s

return to military control, but rather on the effect of his

actions on the morale of his unit and on other troops deployed

to the Middle East.   Therefore, we affirm the sentence as

adjudged, subject to our resolution of Issue II below.

2.   Sentencing Error

     The sentence imposed by the military judge included, in

part, “forfeiture of two-thirds pay per month for six months;

and a reduction to E-1.”   The military judge made two errors in

imposing this sentence.    First, he failed to inform Gaston that

he could be sentenced to a reduction to E-1, and second, he

failed to state the sentence of partial forfeitures as a whole

dollar amount as required by R.C.M. 1003(b)(2).   That rule also

provides that if a sentence includes a reduction then the

forfeiture should be based on the grade to which the accused is

reduced.   Had the military judge complied with R.C.M. 1003(b)(2)



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United States v. Gaston, No. 05-0462/AF

and stated the forfeiture amount as a whole dollar amount at the

reduced grade of E-1, it would have been $767.00 per month.

     The convening authority properly remedied the military

judge’s first error by disapproving that portion of the sentence

that included a reduction to E-1.      However, he did not correct

the error regarding the statement of the forfeitures.     The

convening authority, in taking action on a sentence, may

“approve, disapprove, commute, or suspend the sentence in whole

or in part.”   He may not increase the sentence adjudged by the

court-martial.   Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2)

(2000).   The Staff Judge Advocate advised the convening

authority of this limitation, and “[i]n the absence of evidence

to the contrary, it is assumed that the convening authority

followed the law set out in his Staff Judge Advocate’s review.”

United States v. Johnson, 8 C.M.A. 173, 177, 23 C.M.R. 397, 401

(1957) (Quinn, J., concurring).    We therefore conclude that when

the convening authority approved the sentence of “forfeitures of

two thirds pay per month” adjudged by the military judge he

approved a forfeiture of $767.00 per month for six months, which

was two-thirds of an E-1 monthly pay.

     The Court of Criminal Appeals took note of the military

judge’s second error, but in fashioning a remedy the court

stated the whole dollar amount of the forfeitures as $1053.00

per month, or two-thirds of Gaston’s pay at the E-4 rate rather



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United States v. Gaston, No. 05-0462/AF

than the E-1 rate.   A Court of Criminal Appeals “may act only

with respect to the findings and sentence as approved by the

convening authority.”   Article 66(c), UCMJ.   The sentence

approved by the convening authority included a bad-conduct

discharge, confinement for six months and forfeiture of two-

thirds of an E-1’s pay or $767.00 per month.   Therefore, the

action of the Court of Criminal Appeals in imposing forfeitures

greater than those approved by the convening authority

improperly increased Gaston’s sentence in violation of Article

66(c).

                             DECISION

     The decision of the Air Force Court of Criminal Appeals is

affirmed as to findings except that with regard to Charge I we

affirm only a conviction for the lesser offense of absence

without authority terminated by surrender to military authority.

We affirm only so much of the sentence as includes a bad-conduct

discharge, confinement for six months, and forfeitures of

$767.00 per month for six months.




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United States v. Gaston, No. 05-0462/AF


     BAKER, Judge, with whom CRAWFORD, Judge, joins (concurring

in result):

     The question presented is whether Appellant pled

providently to the charge of unauthorized absence terminated by

apprehension.   This Court will not overturn a plea as

improvident unless there is a substantial basis in law or fact

for doing so.   United States v. Harris, 61 M.J. 391, 398

(C.A.A.F. 2005).   An appellant bears the burden of demonstrating

that such a substantial basis in law or fact exists.     United

States v. Hays, 62 M.J. 158, 167 (C.A.A.F. 2005).   I agree with

the majority that Appellant has done so; however, I write

separately to articulate why I believe this is a close case and

to distinguish my understanding of the facts from that presented

by the majority.

     This Court’s case law regarding apprehension emphasizes

three factors in determining whether an unauthorized absence is

terminated by apprehension or not:   (1) was the return to

military control voluntary?; (2) did the accused initiate his

return to military control?; and (3) was the military control

exercised over an accused a knowing control.   United States v.

Fields, 13 C.M.A. 193, 196-97, 32 C.M.R. 193, 196 (1962); United

States v. Nickaboine, 3 C.M.A. 152, 156, 11 C.M.R. 152, 156

(1953).   Depending on context, this Court has placed more or

less weight on each factor.
U.S. v. Gaston, No. 05-0462/AF


     In this case, Appellant argues that the military judge

erred by accepting his plea to unauthorized absence terminated

by apprehension because the record establishes that Appellant

returned to military control voluntarily.   At the very least,

Appellant argues, the record contains inconsistent facts that

warranted further inquiry before the military judge accepted

Appellant’s statement.   I agree with this latter argument,

because there are just not enough facts in the record to fairly

infer whether Appellant was apprehended or voluntarily

surrendered.

     In evaluating a plea, we look to the entire record,

including any fair inferences that can be drawn from the record.

United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003).

The record is factually light.   Three of Appellant’s statements

are relevant here:

     A. I was notified by the dorm director that everyone was
     looking for me, and I immediately told him that I needed to
     get dressed and meet him in the front. And when I did
     that, he said that he would call the Shirt to come down and
     pick me up, and they did so.

     Q.   What happened after that?

     A. I went down and went in front of Colonel Kramer, and he
     read me my rights, and I was put on base restriction and
     dorm restriction.

     . . . .

     A. . . . I remained absent in my dorm room until 17
     January 2003, when the dorm manager came to my room and
     told me that my squadron was looking for me. I am


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U.S. v. Gaston, No. 05-0462/AF


      confident that my absence was terminated by apprehension
      because neither me, nor anyone working on my behalf,
      voluntarily told anyone where I was. I was found when the
      squadron came looking for me.

      On the one hand, based on these statements, the military

judge might well have concluded that Appellant’s apprehension

was involuntary because it was initiated by the dorm director

who had reason to know that Appellant was absent from his place

of duty.   Otherwise, the dorm director would not have indicated

that he or she would call the First Sergeant to pick Appellant

up.   One might well infer that a dorm director, whatever his

status or rank, would not expect the First Sergeant to come and

give the Appellant a ride to work, unless the Appellant were in

trouble.   This reading of the record is supported by our case

law emphasizing “initiation” as determinative of apprehension.

See Fields, 13 C.M.A. at 196-97, 32 C.M.R. at 196.   It is also

supported by Appellant’s statement to the military judge that “I

am confident that my absence was terminated by apprehension” and

Appellant’s acknowledgment that the First Sergeant picked him up

at the dorm.

      On the other hand, one might also reasonably infer from

these same statements that Appellant voluntarily surrendered to

military control.   Having been tipped off by the dorm director

that his command was looking for him, Appellant decided to get

dressed and asked the dorm director to meet him in the front.



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U.S. v. Gaston, No. 05-0462/AF


One might infer that Appellant exercised a voluntary choice, for

Appellant might also have gotten dressed and headed out the

backdoor.    Or, he might have bought more time with the dorm

director by expressing surprise, thanking him for the

information, and then advising the dorm director that he would

find his own way to the unit before making his way to the front

gate.

        Fair inferences can be drawn in either direction.    One or

two more questions might have resolved this apparent

inconsistency between the initiation of Appellant’s surrender

and his voluntary arrival at the front door of his dorm.      For

example, did the Appellant think he had a choice when the dorm

director arrived?    Did the dorm director have the authority to

apprehend Appellant if need be?    How much time elapsed between

the dorm director’s arrival and the First Sergeant’s?       In light

of these uncertainties, there is a substantial basis in law as

well as in fact to question the plea to apprehension.

Nonetheless, for the reasons stated by the majority, the error

is harmless and I concur in the result.




                                   4
