UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, GALLAGHER, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Private First Class GREGORY M. RHODES
                          United States Army, Appellant

                                   ARMY 20120379

                        Headquarters, 2d Infantry Division
                        Thomas M. Kulish, Military Judge
           Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt, JA.

For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.


                                 17 September 2012
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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave [hereinafter AWOL] terminated by
apprehension and violation of a lawful general regulation, in violation of Articles 86
and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 892 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for ninety days, and reduction to the grade of Private E-1. The
convening authority approved the adjudged sentence and credited appellant with
seventy-eight days of confinement against his sentence to confinement.   This case is
before us for review pursuant to Article 66, UCMJ.

       Appellant submitted his case to this court upon its merits. However, pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant requested this
court to “strike any language referencing termination by apprehension from the”
AWOL charge due to an insufficient Care inquiry. We agree the providence inquiry
was inadequate with respect to that element and grant relief in our decretal
paragraph.
RHODES — ARMY 20120379

                                    DISCUSSION

       We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “The providence of a
plea is based not only on the accused’s understanding and recitation of the factual
history of the crime, but also on an understanding of how the law relates to those
facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United
States v. Care, 18 U.S.C.M.A. 535, 538–39, 40 C.M.R. 247, 250–51 (1969)).   

       The Specification of Charge I alleges that appellant absented himself from his
unit until he was apprehended. At the outset of the providence inquiry, the military
judge explained the three elements of absence without leave but did not mention the
aggravating factor of termination by apprehension. During the providence inquiry,
appellant told the military judge that he voluntarily left his unit on 28 December
2011 without authorization to do so and that he did not return to his unit until 2
February 2012. Appellant testified that on the day of his return, he allegedly lost his
wallet and was accordingly unable to pay his cab fare. The cab driver took appellant
to a Korean police station. Ultimately, the Korean police notified the U.S. Army
and the military police retrieved appellant. The military judge never defined
“apprehension” or discussed the conditions that must exist for an apprehension by
civilian authorities to be deemed an involuntary return to military control. See Care,
40 C.M.R. at 253 (the record of trial must reflect that the element of each offense
was explained to the accused and that the military judge has questioned the accused
in order to make clear the basis for the military judge’s finding of guilty).

                                   CONCLUSION

       Upon consideration of the entire record, including the matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), the court affirms only so much of the finding of guilty of Charge I and its
Specification as finds appellant did, on or about 28 December 2011, without
authority, absent himself from his unit, to wit: B Troop, 4th Battalion, 7th Cavalry,
located at Camp Hovey, Republic of Korea, and did remain so absent until on or
about 2 February 2012, in violation of Article 86, UCMJ. The remaining finding of
guilty is affirmed. Disapproving the “terminated by apprehension” language does
not change the maximum potential sentence or the sentencing landscape.
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




                                           2 
RHODES — ARMY 20120379

identified by Judge Baker in his concurring opinion, the court affirms the sentence
as approved.


                                       FOR THE COURT:
                                      FOR THE COURT: 



                                      JOANNE P. TETREAULT ELDRIDGE
                                      Deputy
                                       JOANNEClerk ofP.Court
                                                        TETREAULT E




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