                         UNITED STATES, Appellee

                                         v.

                    Damien B. SHAW, Lance Corporal
                     U.S. Marine Corps, Appellant


                                  No. 06-0403
                        Crim. App. No. 200300312

       United States Court of Appeals for the Armed Forces

                          Argued January 8, 2007

                          Decided April 24, 2007

BAKER, J., delivered the opinion of the Court, in which STUCKY
and RYAN, JJ., joined. EFFRON, C.J., filed a dissenting opinion
in which ERDMANN, J., joined.


                                     Counsel


For Appellant:    Captain Rolando R. Sanchez, USMC (argued).


For Appellee: Captain Geoffrey S. Shows, USMC (argued);
Commander Paul LeBlanc, JAGC, USN (on brief); Commander Charles
N. Purnell II, JAGC, USN, and Major Kevin C. Harris, USMC.


Military Judge:    M. J. Griffith



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Shaw, No. 06-0403/MC


     Judge BAKER delivered the opinion of the Court.

     In accordance with his pleas, Appellant was convicted by a

special court-martial of failure to obey a no-contact order,

wrongful use of cocaine, adultery, and breaking restriction in

violation of Articles 92, 112a, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 934 (2000),

respectively.   A military judge sitting alone sentenced

Appellant to a bad-conduct discharge, confinement for ninety

days and reduction to pay grade E-1.    The convening authority

approved the sentence as adjudged and the United States Navy-

Marine Corps Court of Criminal Appeals affirmed.1   United States

v. Shaw, No. NMCCA 200300312 (N-M. Ct. Crim. App. Jan. 11,

2006).   Upon Appellant’s petition, this Court specified the

following issue based on matters raised in his unsworn

statement:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
     FAILING TO INQUIRE INTO THE EFFECT THAT APPELLANT’S
     MEDICAL PROBLEMS HAD ON HIS ABILITY TO APPRECIATE THE
     NATURE AND QUALITY OR THE WRONGFULNESS OF HIS ACTS.

We conclude that the military judge did not err in this regard

and affirm.




1
  The convening authority suspended confinement in excess of
sixty days for twelve months.

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United States v. Shaw, No. 06-0403/MC


                                 I

     After the findings of guilty were announced, Appellant,

with the assistance of counsel, made an unsworn statement for

the military judge’s consideration on sentencing.   The part of

the statement relevant to the specified issue states:

     Sir, on the 20th of November 2001, I was jumped
     outside of the Waffle Shop out in town and robbed. I
     was hit in the head repeatedly with a lead pipe. I
     suffered two skull fractures, bruising and bleeding of
     the brain. I woke up several days later out of a coma
     to find out that I am completely deaf in my left ear,
     and partially blind in my left eye. I was
     hospitalized for about a month. Upon returning to my
     unit from the hospital, I went and saw the division
     psychiatry [sic] and was diagnosed with bi-polar
     syndrome because of the incident. After that I was
     denied convalescent leave and only given eight days
     annual leave for Christmas. I came back, and that’s
     when I started to get in trouble.

After Appellant completed his statement, his defense counsel

asked him specific questions regarding the injuries he received

as a result of the assault:

     DC:    And how long did you stay in the Veterans
            hospital?

     ACC:   I was in the Veterans Hospital for 22 days, sir.

     DC:    And what -- did they tell you the extent of the
            injuries?

            . . . .

     ACC:   A contusion to the front of the brain which
            basically means bruising. The back of my brain
            was bleeding and swelling. I had an inner skull
            fracture on my left side, and another skull
            fracture on the back of my head, sir. I



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United States v. Shaw, No. 06-0403/MC


            completely lost all my hearing in my left ear,
            and part of my sight in my left eye, sir.

            . . . .

     DC:    And do these injuries still effect [sic] you
            today?

     ACC: Yes, sir.

This concluded Appellant’s unsworn statement, and the hearing

proceeded to announcement of the sentence.   In response to the

specified issue Appellant asserts that the findings and sentence

should be set aside for the military judge’s failure to inquire

further into Appellant’s statement regarding his diagnosis for

bipolar disorder.

                                 II

     “A military judge’s decision to accept a guilty plea is

reviewed for an abuse of discretion.”   United States v. Eberle,

44 M.J. 374, 375 (C.A.A.F. 1996) (citing United States v.

Gallegos, 41 M.J. 446 (C.A.A.F. 1995)).    “Pleas of guilty should

not be set aside on appeal unless there is ‘a “substantial

basis” in law and fact for questioning the guilty plea.’”    Id.

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

1991)).    “If an accused ‘sets up matter inconsistent with the

plea’ at any time during the proceeding, the military judge must

either resolve the apparent inconsistency or reject the plea.”

United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)

(quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); Rule


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United States v. Shaw, No. 06-0403/MC


for Courts-Martial (R.C.M.) 910(h)(2).    “Once the military judge

has accepted a plea as provident and has entered findings based

on it, an appellate court will not reverse that finding and

reject the plea unless it finds a substantial conflict between

the plea and the accused’s statements or other evidence of

record.”    Garcia, 44 M.J. at 498.   “A ‘mere possibility’ of such

a conflict is not a sufficient basis to overturn the trial

results.”   Id. (quoting Prater, 32 M.J. at 436).

     As in United States v. Phillippe, 63 M.J. 307 (C.A.A.F.

2006), of last term, we are again called upon to determine

whether the military judge’s duty to inquire further has been

triggered by disclosures made during, or subsequent to, the plea

colloquy.   In Phillippe, we held that “when, either during the

plea inquiry or thereafter, and in the absence of prior

disavowals . . . circumstances raise a possible defense, a

military judge has a duty to inquire further to resolve the

apparent inconsistency.”   Id. at 310-11 (citation omitted).    The

existence of an apparent and complete defense is necessarily

inconsistent with a plea of guilty.    This was the case in

Phillippe, where early termination of the alleged period of

unauthorized absence was raised, presenting an apparent

ambiguity or inconsistency with the plea thereby warranting

further inquiry.   Id. at 311; see also United States v. Pinero,

60 M.J. 31, 35 (C.A.A.F. 2004); United States v. Reeder, 22


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United States v. Shaw, No. 06-0403/MC


C.M.A. 11, 12-13, 46 C.M.R. 11, 12-13 (1972).      The question in

this case is whether Appellant’s reference to his bipolar

condition in the plea context “set[] up matter raising a

possible defense,” as in Phillippe, or whether it presented only

a “mere possibility” of a defense, as in Prater.       Phillippe, 63

M.J. at 310-11; Prater, 32 M.J. at 436-37.

        On the one hand, the injuries Appellant describes are as

graphic as they are unfortunate.       One is tempted, without more,

to conclude that injuries of this magnitude must surely raise a

possible mental responsibility defense.      Moreover, in military

law, given that lack of mental responsibility is an affirmative

defense, mental health issues bear special status.      This is

reflected in R.C.M. 706 and Military Rule of Evidence (M.R.E.)

302.2    This status in part reflects the recognition that combat

and other operational conditions may generate or aggravate

certain mental health conditions, such as post traumatic stress

disorder.    As a result, military judges should take particular



2
  R.C.M. 706(a) imposes an obligation not only on defense counsel
but also on any commander, investigating officer, trial counsel,
military judge or member to notify the officer authorized to
order a mental exam when “there is reason to believe that the
accused lacked mental responsibility for any offense charged or
lacks capacity to stand trial.” M.R.E. 302(a) provides a
limited privilege to the accused who participates in an R.C.M.
706 examination even if a rights warning has been provided under
Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2000). These two
examples distinguish mental responsibility from other
affirmative defenses.

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United States v. Shaw, No. 06-0403/MC


care to make sure that considerations of mental health do not

put the providence of the plea at issue.

     On the other hand, in this case, Appellant’s assertion that

his plea was improvident rests entirely on his unsworn

statement, in which he states that he was diagnosed with bipolar

disorder.   Thus, unlike the circumstance we encountered in

United States v. Harris, 61 M.J. 391, 392-94 (C.A.A.F. 2005),

there was no factual record developed during or after the trial

substantiating Appellant’s statement or indicating whether and

how bipolar disorder may have influenced his plea.   Nor did

Appellant’s conduct during the plea inquiry raise concerns that

might have suggested to the military judge that Appellant lacked

the capacity to plead.   If so, this might have prompted the

military judge to inquire into Appellant’s mental responsibility

at the time of the offenses.   Moreover, Appellant has not

asserted, nor does his statement reflect, that he was unable to

appreciate the nature and quality or wrongfulness of his acts as

a result of a mental disease or defect.    Thus, unlike the

situation in Phillippe, where the appellant’s statement raised

the possibility of a complete defense of early termination to

the charged term of absence, Appellant’s statement without more,

did not raise an apparent inconsistency with his plea.




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United States v. Shaw, No. 06-0403/MC


     In such a circumstance, the military judge may reasonably

rely on both a presumption that the accused is sane3 and the

long-standing principle that counsel is presumed to be

competent.   United States v. Cronic, 466 U.S. 648, 658 (1984);

United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987).

Moreover, the President has assigned the burden of proving lack

of mental responsibility to the accused.   R.C.M. 916(b).   Thus,

when the accused is presenting his sentencing statement through

or with the assistance of counsel, the military judge may

properly presume, in the absence of any indication to the

contrary, that counsel has conducted a reasonable investigation

into the existence of the defense.   This is particularly so when

the matter raised does not in and of itself present an apparent

or possible defense.

     Appellant points to our decisions in United States v.

Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391,

for the proposition that “[t]he military judge must have known

that a bipolar disorder was a viable defense for Appellant.”

However, these cases establish that bipolar disorder, like other

disorders, may exist with enough severity to raise a substantial

question regarding the issue of the accused’s mental

responsibility.   However, the disorder does not negate


3
  “The accused is presumed to be mentally responsible at the time
of the alleged offense.” R.C.M. 916(k)(3)(A).

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United States v. Shaw, No. 06-0403/MC


responsibility in all cases.   Martin was a contested case in

which the defense was attempting to carry its burden of proving

lack of mental responsibility due to the severity of the

accused’s bipolar condition.   56 M.J. at 100-01.   Two defense

psychiatrists testified that Martin’s condition was severe

enough that he was unable to appreciate the nature and quality

or wrongfulness of his conduct.   Id.   Conversely, three

government psychiatrists testified that Martin could appreciate

the wrongfulness of his acts at the time of the offenses.    Id.

at 101.   The question was whether Martin had carried his burden

in proving the defense of lack of mental responsibility by clear

and convincing evidence, and we concluded that a reasonable jury

could have concluded that he did not.   Id. at 110.

       In Harris, a pretrial examination conducted pursuant to

R.C.M. 706 concluded that the accused had not suffered from a

severe mental defect or disease and that he had been mentally

responsible at the time of the offenses.   61 M.J. at 393.   He

was subsequently convicted in accordance with his pleas.     Id. at

392.   After the court-martial, and while Harris was serving his

sentence to confinement, another mental health expert concluded

that Harris had suffered from bipolar disorder, that this was a

severe mental disease at the time of the offenses, and that he

could not appreciate the wrongfulness of his conduct.   Id. at

393.   The doctor’s concern was documented in the record, and


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United States v. Shaw, No. 06-0403/MC

highlighted by Harris’s behavior of polishing his cell with a

sock.    Id.   Thus, in Harris, the military judge was confronted

with two conflicting, confirmed, and documented medical

conclusions.    These conclusions were the subject of a post-trial

session pursuant to Article 39(a), UCMJ,4 after which,

notwithstanding the conflicting conclusions, the military judge

determined that the previous guilty plea had been entered

providently.    Id.   After the post-trial Article 39(a), UCMJ,

session, the convening authority ordered yet another examination

pursuant to R.C.M. 706.    Id. at 394.   That psychiatrist

concluded that Harris had suffered from a severe mental disease,

i.e., bipolar disorder, at the time of the offenses but that he

had been able to appreciate the nature and quality or

wrongfulness of his conduct.     Id.   The issue in the case was

whether the conflicting post-trial examinations and related

medical evidence, which were themselves in conflict with the

pretrial examination, supported a petition for a new trial under

R.C.M. 1210(f)(2).    Id. at 397. We held that they did and

granted the petition for a new trial.     Id. at 398-99.

        Martin and Harris entailed substantially more than a

passing reference to a diagnosis of bipolar disorder.5       Nor, has


4
    10 U.S.C. § 839(a) (2000).
5
  Appellant states in his unsworn statement that after the
assault, “that’s when I started to get in trouble.” However,

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United States v. Shaw, No. 06-0403/MC

Appellant to date offered any indication that his disorder

raises a substantial question regarding his mental

responsibility.    As a result, we conclude that Appellant’s

reference to his diagnosis of bipolar disorder, without more, at

most raised only the “mere possibility” of a conflict with the

plea.    Whether a conflict has actually arisen or not, it may be

prudent for a military judge to conduct further inquiry when a

significant mental health condition is raised during the plea

inquiry in light of military law and practice regarding mental

health issues and to obviate such issues on appeal.    Whether

further inquiry is required as a matter of law is a contextual

determination.    In this case, we hold that the military judge

did not abuse his discretion in not doing so.6

                               DECISION

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




the record reveals, and Appellant concedes, that he received
nonjudicial punishment on October 10, 2001, for an unauthorized
absence of twenty days. This was obviously before the assault
of November 20, 2001, and was evidence the military judge had
before him when Appellant made his unsworn statement.
6
  Appellant also claims the reference in his unsworn statement to
bipolar disorder raised the issue of his mental capacity at the
time of trial. As stated earlier, the record is devoid of any
indicator that would have given the military judge reason to
believe that Appellant lacked capacity to stand trial. See
R.C.M. 706(a).

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United States v. Shaw, No. 06-0403/MC


     EFFRON, Chief Judge, with whom ERDMANN, Judge, joins
(dissenting):

     Appellant’s assertion that he suffered from bipolar

disorder raised an apparent inconsistency with respect to his

plea, thereby triggering the military judge’s duty to conduct a

further inquiry.   United States v. Phillippe, 63 M.J. 307, 309-

11 (C.A.A.F. 2006).    The military judge erred in failing to

resolve this inconsistency.       Accordingly, I respectfully

dissent.



                             I.   BACKGROUND

                      A.   The Guilty Plea Process

     Congress has established special procedures to ensure the

validity of guilty pleas in the military justice system.

Article 45(a), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 845(a) (2000), provides that the trial court shall

enter a plea of not guilty, despite the accused’s guilty plea,

if the accused “after a plea of guilty sets up matter

inconsistent with the plea, or if it appears that he has entered

the plea of guilty improvidently or through lack of

understanding of its meaning and effect . . . .”

     Rule for Courts-Martial (R.C.M.) 910(h)(2) underscores the

military judge’s obligation by requiring that “[i]f after

findings but before the sentence is announced the accused makes
United States v. Shaw, No. 06-0403/MC


a statement to the court-martial, in testimony or otherwise, or

presents evidence which is inconsistent with a plea of guilty on

which a finding is based, the military judge shall inquire into

the providence of the plea.”    Our Court has noted the importance

of requiring special attention to guilty pleas in the military

justice system because “‘there may be subtle pressures inherent

to the military environment that may influence the manner in

which servicemembers exercise (and waive) their rights.’”

Phillippe, 63 M.J. at 310 (quoting United States v. Pinero, 60

M.J. 31, 33 (C.A.A.F. 2004)).   “‘The providence inquiry and a

judge’s explanation of possible defenses are established

procedures to ensure servicemembers knowingly and voluntarily

admit to all elements of a formal charge.’”   Id. (quoting

Pinero, 60 M.J. at 33).

       B.   Plea Inquiries Involving Mental Responsibility

     In a contested trial, the defense of lack of mental

responsibility requires the accused to demonstrate that, at the

time of the alleged offenses, the accused:    (1) suffered from a

severe mental disease or defect, and (2) as a result of that

disease or defect was unable to appreciate the nature and

quality or the wrongfulness of the charged acts.   Article

50a(a), UCMJ, 10 U.S.C. § 850a(a) (2000).    In the context of a

providence inquiry, however, the responsibility for assessing

whether there is reason to believe that the defense may arise


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United States v. Shaw, No. 06-0403/MC


rests with the military judge.   R.C.M. 706(a) provides in

pertinent part that:

     If it appears to [the] . . . military judge . . .
     that there is reason to believe that the accused
     lacked mental responsibility for any offense
     charged or lacks capacity to stand trial, that
     fact and the basis of the belief or observation
     shall be transmitted through appropriate channels
     to the officer authorized to order an inquiry
     into the mental condition of the accused.

     A statement by the accused triggers the military judge’s

responsibility to conduct a further inquiry when it raises the

possibility that a defense may apply.    The accused’s statement

need not assert a complete defense.     Phillippe, 63 M.J. at 310.

Rather, it must only “set[] up matter raising a possible

defense.”   Id.; Article 45(a), UCMJ.

     Once a statement by the accused raises the possibility that

a defense may apply, the military judge has an affirmative

obligation to resolve any apparent ambiguity or inconsistency by

conducting further inquiry.   Article 45(a), UCMJ.   If, upon such

inquiry, it appears that the accused may have a defense of lack

of mental responsibility or may lack mental capacity at the time

of trial, the military judge must determine whether to order

psychological testing by a sanity board.    R.C.M. 706(a); R.C.M.

916(k)(3)(B).   This obligation distinguishes lack of mental

responsibility from other affirmative defenses.    See generally

R.C.M. 916(k) (the military judge is not required to assess the




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United States v. Shaw, No. 06-0403/MC


need for specialized, nonjudicial evaluation for any affirmative

defense except lack of mental responsibility).



                     II.   APPELLANT’S TRIAL

     The charged offenses concerned events that transpired

between March 10, 2002, and April 11, 2002.    Appellant pled

guilty to the charged offenses at a special court-martial before

a military judge sitting alone.   At the start of the

proceedings, the military judge summarized an off-the-record

conference conducted under R.C.M. 802, during which the parties

discussed “potential [extenuation and mitigation] evidence

requested by the defense, the medical records of the accused,

and it not having arrived yet, and what we would do about that.”

The record supplies no further information about the medical

records, including whether the military judge was informed of

their contents and the reasons why counsel thought the medical

records would be useful in extenuation and mitigation.

     Following the summary of the R.C.M. 802 session, Appellant

entered pleas of guilty to all charges and the military judge

conducted a providence inquiry.   Appellant said nothing during

the providence inquiry that would have led the military judge to

question his mental capacity or mental responsibility.   The

military judge accepted Appellant’s pleas as provident and found

him guilty of all charges and specifications.


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United States v. Shaw, No. 06-0403/MC


     During the sentencing proceedings, Appellant made an

unsworn statement under R.C.M. 1001(c)(2)(C), in which he

recounted the injuries he sustained in an assault that occurred

on November 20, 2001, approximately four months before the dates

of the charged offenses.   Appellant stated that he was hit

repeatedly in the left side and back of the skull with a lead

pipe during the assault.   According to Appellant, he lost

consciousness after the first blow and fell to the concrete

floor.   Appellant regained consciousness four or five days after

the attack.   He spent the next three weeks in the Hunter McGuire

Veterans Hospital in recovery.

     Appellant’s injuries included an inner skull fracture on

the left side of his head, a second fracture on the back of the

skull, a contusion to the front of the brain, bleeding and

swelling to the back of the brain, complete deafness in his left

ear, partial blindness in his left eye, and memory loss.      Upon

returning to his unit, Appellant met with a psychiatrist and was

diagnosed with bipolar syndrome.       At the time of the charged

offenses, he was awaiting a medical discharge because his

injuries prevented him from sufficiently performing his duties.

     Upon conclusion of the statement, the military judge

thanked Appellant.   The military judge made no further comment

on the statement before proceeding to hear argument on

sentencing.


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United States v. Shaw, No. 06-0403/MC


                         III.    DISCUSSION

     A statement by the accused need not set up a complete

defense in order to trigger the obligation of the military judge

to conduct a further inquiry.    The obligation arises if the

statement by the accused “‘sets up matter inconsistent with the

plea.’”   United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)

(quoting Article 45(a), UCMJ).

     In Phillippe, we addressed the issue of “whether the

military judge should have inquired further into the providence

of Appellant’s plea, in light of his unsworn statement.”      63

M.J. at 310.   We emphasized that:

     Even if an accused does not volunteer all the facts
     necessary to establish a defense, if he sets up
     matter raising a possible defense, then the military
     judge is obligated to make further inquiry to resolve
     any apparent ambiguity or inconsistency. Only after
     the military judge has made this inquiry can he then
     determine whether the apparent inconsistency or
     ambiguity has been resolved.

Id. (citing Prater, 32 M.J. at 436) (emphasis added).

     Appellant told the military judge that he had been

diagnosed with bipolar disorder.       When Appellant made this

statement, the military judge was placed on notice that

Appellant might suffer from a severe mental disease or defect

within the meaning of Article 50a(a), UCMJ.      See United States

v. Harris, 61 M.J. 391, 394, 398 (C.A.A.F. 2005); United States

v. Martin, 56 M.J. 97, 100, 103 (C.A.A.F. 2001) (recognizing




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United States v. Shaw, No. 06-0403/MC


that bipolar disorder may constitute a severe mental disease or

defect).    Particularly in the context of Appellant’s description

of the assault that he had suffered, his statement fell squarely

within the spectrum of matters requiring further exploration by

the military judge because it set up a “matter inconsistent with

the plea.”    Article 45(a), UCMJ.

        At this point, the military judge was confronted with two

key questions.    First, whether Appellant’s bipolar disorder was

of sufficient gravity to constitute a severe mental disease or

defect.    Second, if Appellant did suffer from a severe mental

disease or defect, whether that disease or defect caused him to

fail to understand the nature and quality or wrongfulness of his

acts.    Article 50a(a), UCMJ.

        Once Appellant raised his inconsistent statement, the

military judge could have pursued one of three options.      First,

he could have conducted an inquiry regarding Appellant’s bipolar

disorder with Appellant or trial defense counsel that satisfied

the military judge that the defense of lack of mental

responsibility did not apply.    R.C.M. 916(k)(3)(B).    If, after

conducting such an inquiry, he determined that the defense did

not apply, he could resume the sentencing proceedings on the

basis that the plea was provident.       Second, he could have

ordered a sanity board pursuant to R.C.M. 706(a) to explore

whether the defense of lack of mental responsibility applied.


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United States v. Shaw, No. 06-0403/MC


Third, if the military judge determined that the lack of mental

responsibility defense did in fact apply, he could have

permitted Appellant to withdraw his plea under Article 45(a),

UCMJ, and R.C.M. 910(h)(2) and proceed to trial on the merits.

     The military judge erred in failing to adhere to the

requirements for a further inquiry under R.C.M. 706(a) and

910(h)(2).   As a result, we are not in a position to determine

which of the above three options would have been appropriate

absent this error.   As we stated in Phillippe, before a court

can determine that the defense in question applies, “there must

be adequate facts on the record.”    63 M.J. at 310 n.3.   Under

these circumstances, we should set aside the findings and

sentence and authorize a rehearing at which these options could

be properly evaluated.




                                 8
