UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, MORAN, and ALDYKIEWICZ
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Sergeant JASON M. HARROD
                           United States Army, Appellant

                                   ARMY 20120731

         Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                        Gregory A. Gross, Military Judge
               Colonel Jeffrey D. Pedersen, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).


                                      22 May 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave, one
specification of aggravated sexual assault of a child, one specification of indecent
liberties with a child, and one specification of adultery, in violation of Articles 86,
120, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§
886, 920, 934 (2006 & Supp. IV 2011), amended by 10 U.S.C. § 920 (2012). The
military judge sentenced appellant to a dishonorable discharge, confinement for
twenty-eight years, forfeiture of all pay and allowances, and reduction to the grade
of E-1. Pursuant to a pretrial agreement, the convening authority approved only
eighteen years confinement and the remainder of the adjudged sentence. The
convening authority also credited appellant with 135 days of confinement against the
sentence to confinement and deferred the adjudged forfeitures and waived automatic
forfeitures from 9 August 2012 until 4 November 2012.
HARROD—ARMY 20120731

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which does not merit discussion or relief.
We also find that the matters personally submitted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) without merit. However, we do
discuss and grant relief on an issue that was not raised by the parties.

       Upon review of the record, we conclude the military judge failed to elicit an
adequate factual basis that appellant’s adultery was prejudicial to good order and
discipline. “During a guilty plea inquiry the military judge is charged with
determining whether there is an adequate basis in law and fact to support the plea
before accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F.
2008) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review
a military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).

       The government charged appellant with adultery, “such conduct as being
prejudicial to good order and discipline in the armed forces or of a nature to bring
discredit upon the armed forces,” a violation of Clauses 1 and 2 of Article 134,
UCMJ. See Manual for Courts–Martial, United States (2008 ed.), pt. IV, ¶¶
60.c.(2), (3). As our superior court recently reiterated, “[t]he . . . clauses of Article
134 constitute ‘. . . distinct and separate parts.’” United States v. Fosler, 70 M.J.
225, 230 (C.A.A.F. 2011) (quoting United States v. Frantz, 2 U.S.C.M.A. 161, 163,
7 C.M.R. 37, 39 (1953)). It follows, then that “[v]iolation of one clause does not
necessarily lead to a violation of the other . . . .” Id. More specifically to the case
before us, the court in Fosler went on to state that “disorders and neglects to the
prejudice of good order and discipline” are not synonymous with “conduct of a
nature to bring discredit upon the armed forces . . . .” Id. Thus, if a specification
alleges both Clause 1 and 2, then there must be a substantial basis in fact in the
record to support a finding of guilty to both.

       Given the facts of this case, there is no question that appellant committed
adultery. Moreover, the plea inquiry established facts demonstrating that appellant’s
conduct was service-discrediting. However, the plea inquiry failed to elicit an
adequate factual basis regarding the prejudicial effect of appellant’s adultery on
good order and discipline in the armed forces. Although the military judge properly
defined the Clause 1 element of “prejudice to good order and discipline in the armed
forces,” he never asked appellant to explain how his conduct violated Clause 1 of
Article 134, UCMJ. Furthermore, the stipulation of fact is completely silent as to
Clause 1 of Article 134, UCMJ. We therefore find a substantial basis in law and fact
fact to question the providence of appellant’s plea to committing conduct prejudicial
to good order and discipline in violation of Clause 1 of Article 134, UCMJ.




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HARROD—ARMY 20120731

                                   CONCLUSION

       On consideration of the entire record, as well as those matters personally
raised by appellant pursuant to Grostefon, the court affirms only so much of the
finding of guilty of the Specification of Charge III as finds that appellant “a married
man, did, at or near Fort Sill, Oklahoma, between on or about April 2011 and on or
about June 2011, wrongfully have sexual intercourse with Ms. Samantha Nikki
Moore, who had attained the age of 12 years, but had not attained the age of 16
years, a woman not his wife, such conduct of a nature to bring discredit upon the
armed forces.” The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles articulated by our superior court in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2014) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986),
the sentence as approved by the convening authority is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored.


                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of
                                        Clerk of Court
                                                 Court




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