UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Private E1 ALIX SYLVAIN
                          United States Army, Appellant

                                   ARMY 20111042

                             Headquarters, Fort Drum
                         Elizabeth Kubala, Military Judge
            Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).


                                    12 October 2012

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

YOB, Senior Judge:

       A military judge, sitting as a special court-martial empowered to adjudge a
bad-conduct discharge, convicted appellant, pursuant to his pleas, of one
specification of failing to go to his appointed place of duty, one specification of
willfully disobeying a superior commissioned officer, two specifications of violating
a lawful general regulation, and one specification of wrongfully using marijuana, in
violation of Articles 86, 90, 92, and 112a, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 890, 892, 912a [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge and confinement for
forty-five days. The convening authority credited appellant with five days of
confinement credit for pretrial confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits. This court has considered matters appellant raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and determined
they are without merit. However, pursuant to the ultimate offense doctrine and in
light of the fact that breaking restriction can no longer be considered a lesser-
SYLVAIN — ARMY 20111042

included offense of willfully disobeying a superior commissioned officer, we find a
substantial basis in law and fact to reject appellant’s plea to Charge II and its
Specification.

       Neither the stipulation of fact nor the providence inquiry develop or establish
sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but
merely establish the offense of breaking restriction in violation of Article 134,
UCMJ. Absent admission or stipulation that the superior officer invested the
restriction, subject to charge here, “with the full authority of his office” to “lift [the
duty to remain within certain limits] above the common ruck,” United States v. Loos,
4 U.S.C.M.A. 478, 480–81, 16 C.M.R. 52, 54–55 (1954), the “ultimate offense” in
this case was breaking restriction. See United States v. Traxler, 39 M.J. 476
(C.M.A. 1994); United States v. Peaches, 25 M.J. 364 (C.M.A. 1987); United States
v. Bratcher, 18 U.S.C.M.A. 125, 39 C.M.R. 125 (1969). In addition, the offense of
breaking restriction can no longer be considered a lesser-included offense of
disobeying a superior commissioned officer so that this court is not free to substitute
the former for the latter. See generally United States v. Jones, 68 M.J. 465, 472
(C.A.A.F. 2010).

       On consideration of the entire record, we disapprove the finding of guilty of
Charge II and its Specification and dismiss that charge and specification. The
remaining findings of guilty are correct in law and fact and are affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986),
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion in Moffeit, the court affirms the
sentence as approved by the convening authority.

      Judge KRAUSS and Judge BURTON 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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