UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        CAMPANELLA, HERRING, and PENLAND
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                       Private First Class ALVIN J. FOGLE
                          United States Army, Appellant

                                    ARMY 20140534

          Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                        Rebecca K. Connally, Military Judge
                Colonel Mark W. Seitsinger, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Scott L. Goble, JA;
Captain John Gardella, JA (on brief).


                                     11 August 2016

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                                SUMMARY DISPOSITION
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CAMPANELLA, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of conspiracy to obstruct justice, false official statement, and
sexual assault in violation of Articles 81, 107, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 907, 934 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to be discharged with a dishonorable discharge, to be confined
for six years, and to be reduced to the grade of E-1. The convening authority
approved only so much of the adjudged sentence as provides for a dishonorable
discharge, confinement for twenty-three months and fifteen days, and reduction to
the grade of E-1. *



*
 The pretrial agreement capped confinement to two years, however, the convening
authority provided appellant fifteen days confinement relief for dilatory post-trial
processing.
FOGLE—ARMY 20140534

       This case is before us for review under Article 66, UCMJ. Appellant raises
one assignment of error that we find has no merit. Appellant raises two matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which
merits discussion and relief.

                                  BACKGROUND

      In the Specification of Charge I, appellant was charged with conspiring to
obstruct justice in violation of Article 81, UCMJ. The specification alleged:

             In that [appellant], did, at or near Fort Sill, Oklahoma,
             between 8 February 2013 and about 15 February 2013,
             conspire with PV2 Jonathan M. Bears and SPC Josbel M.
             Herrera to commit an offense under the Uniform Code of
             Military Justice, to wit: obstructing justice in violation of
             Article 134, and in order to effect the object of the
             conspiracy the said PFC Alvin J. Fogle, PV2 Jonathon M.
             Bears, and SPC Josbel M. Herrera did knowingly give
             false statements to Criminal Investigation Command, Fort
             Sill, Oklahoma.

       Prior to trial, appellant entered into a pretrial agreement wherein he agreed to
plead guilty to certain offenses, including the Specification of Charge I, in exchange
for a cap on his sentence to confinement. In accordance with this pretrial
agreement, appellant entered into a stipulation of fact.

       During the providence inquiry, the military judge advised appellant of the
elements for the Specification of Charge I, including the underlying elements of
Article 134 offense of obstruction of justice, to include the terminal elements that
the conduct was to the prejudice of good order and discipline or was of a nature to
bring discredit upon the armed forces.

      The military judge questioned appellant regarding this conduct:

             MJ: So, at this time . . . I want you to tell me why you are
             guilty of the offense in The Specification of Charge I, and
             that is, the offense of conspiracy. . .

             ACC: Ma’am, on or about 10 February 2013, on Fort Sill
             where I was assigned to the 15 th Transportation Company,
             100 th BSB, 75 Fires Brigade, I talked to PV2 Bears and
             Specialist Herrera regarding what we did with Ms. [LG]
             on or about February 8th 2013. We knew that something
             had been reported and we expected an investigation. We

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FOGLE—ARMY 20140534

             agreed to tell the investigators that we never had sex with
             Ms. [LG], there was [sic] no videos that were made, and
             that we were all in separate places at that time. I knew
             that if I lied I would be—it would be prejudicial to good
             order and discipline because I was misleading so that a
             crime would go unsolved. When I was interviewed by
             CID, I lied to the investigator because that was the plan
             we had came up with.

       Following appellant’s unsolved crime comment, the military judge did not
seek any additional information relating to why appellant believed his conduct was
of a nature to bring discredit upon the armed forces or was service discrediting.

      The stipulation of fact in this case is conclusory with regards to the terminal
element of the underlying Article 134, UCMJ, offense of obstruction of justice.

       Based on the military judge’s questions and the appellant’s responses, the
military judge found appellant’s plea to this offense provident and accepted it. We
find a substantial basis in law and fact to question the plea and take appropriate
action in our decretal paragraph to correct this issue.

                              LAW AND DISCUSSION

      In his Grostefon matters, appellant alleges there is a substantial basis in law
and fact to question the providence of his plea of guilty to the Specification of
Charge I. Specifically, appellant argues the military judge failed to establish an
adequate factual predicate to support the terminal element in this case.

      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).
“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.

       “The military judge shall not accept a plea of guilty without making such
inquiry of the accused as shall satisfy the military judge that there is a factual basis
for the plea.” In order to establish an adequate factual predicate for a guilty plea,
the military judge must elicit “factual circumstances as revealed by the accused
himself [that] objectively support that plea[.]” United States v. Davenport, 9 M.J.
364, 367 (C.M.A. 1980). It is not enough to elicit legal conclusions; the military
judge must elicit facts to support the plea of guilty. United States v. Outhier, 45
M.J. 326, 331 (C.A.A.F. 1996). The record of trial must reflect not only that the
elements of each offense charged have been explained to the accused, but also “make
clear the basis for a determination by the military trial judge . . . whether the acts or

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FOGLE—ARMY 20140534

the omissions of the accused constitute the offense or offenses to which he is
pleading guilty.” United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247,
253 (1969). The fundamental requirement of a plea inquiry under Care and Rule for
Courts-Martial (R.C.M.) 910 “involves a dialogue in which the military judge poses
questions about the nature of the offense and the accused provides answers that
describe his personal understanding of the criminality of his or her conduct.” United
States v. Medina, 72 M.J. 148, 149 (C.A.A.F. 2013) (internal citations omitted).

       “‘To the prejudice of good order and discipline’ refers only to acts directly
prejudicial to good order and discipline and not to acts which are prejudicial only in
a remote or indirect sense. . . this article does not include distant effects.” Manual
for Courts-Martial, United States (2012 ed.)[hereinafter MCM], pt. IV, ¶ 60.c.2.a.
“The prejudice must be reasonably direct and palpable.” Id. See also United States
v. Perez, 33 M.J. 1050, 1054 (C.M.R. 1991).

       As a matter of law, conspiracy to obstruct justice could very well constitute
an offense amounting to conduct prejudicial to good order and discipline and of such
a nature to bring discredit upon the armed forces. Based on the totality of the
providence inquiry, however, we are not confident the exchange with appellant
established a personal understanding of how he believed his actions met these
elements. This court, therefore, concludes appellant’s plea of guilty to this offense
was improvident.

                                   CONCLUSION

     The finding of guilty to the Specification of Charge I is set aside. We
AFFIRM the remaining findings of guilty.

       In determining whether we can reassess the sentence, we apply several
nonexhaustive factors provided by our superior count in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) (internal citations omitted).
Applying these factors to this case, we are confident that reassessment is
appropriate. First we look to the penalty landscape. The maximum punishment is
reduced from forty years to thirty-five years. Second, appellant was tried by a
military judge and we have experience dealing with similar cases. We are confident
we can discern what punishment a military judge would have adjudged in this case.
Third, the gravamen of the criminal conduct included within the original offenses
remains substantially the same. Neither the penalty landscape nor the admissible
aggravation evidence has significantly changed.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence approved by the convening authority. We find
this reassessed sentence is not only purged of any error but is also appropriate. All
rights, privileges, and property, of which appellant has been deprived by virtue of

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FOGLE—ARMY 20140534

that portion of the findings set aside by this decision, are ordered restored. See
Articles 58b(c) & 75(a), UCMJ.

      Judge HERRING and Judge PENLAND concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.
                                        MALCOLM       H.SQUIRES,
                                                         SQUIRES,JR.
                                                                  JR.
                                         ClerkofofCourt
                                        Clerk      Court




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