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

                           UNITED STATES, Appellee
                                        v.
                           Private E1 SEAN GASTON
                          United States Army, Appellant

                                   ARMY 20111007

                     Headquarters, I Corps (Rear) (Provisional)
                          Gary Saladino, Military Judge
         Lieutenant Colonel John T. Rothwell , Acting Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain J. Fred Ingram, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Daniel H. Karna (on brief).

                                   28 February 2014
                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------
Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave, one
specification of wrongful use of marijuana, one specification of provoking speech,
six specifications of assault, two specifications of drunk and disorderly conduct, and
one specification of communicating a threat, in violation of Articles 86, 112a, 117,
128, and 134, Uniform Code of Military Justice, 10 U.S.C. 886, 912a, 917, 928, 934
[hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge and five months confinement. The convening authority approved the bad-
conduct discharge and 150 days of confinement. The convening authority also
credited appellant with 104 days of confinement. *

       This case is before this court for review under Article 66, UCMJ. One of
appellant’s assignments of error has merit. In particular, appellant contends that the
military judge abused his discretion by accepting appellant’s guilty pleas to Charge
*
 By our count, appellant should have been credited with 108 days of confinement
credit. We take appropriate action in our decretal paragraph.
GASTON—ARMY 20111007

III and its Specification, provoking speech in violation of Article 117, UCMJ . The
government concedes that the military judge abused his discretion, and, after
reviewing the entire record, we accept that concession. Appellant’s other
assignments of error lack merit.

       The parties do not appear to dispute the relevant facts. On 4 June 2011,
appellant had been drinking heavily. He described himself as “obviously drunk” and
“really drunk.” He had been screaming obscenities at females on Fort Lewis.
Eventually, the police arrived and, after some struggle from appellant, apprehended
him. While handcuffed and being led to a police car, appellant pulled away from a
military policeman, Specialist (SPC) NS, and said, “I eat little punk bitches like
you.” At his guilty plea, appellant said he did so “to get a rise out of him.”

       We review a military judge’s decision to accept a 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 appellant’s guilty plea. Id.

        An element of provoking speech is that the words “used were provoking or
reproachful.” Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶
42.b.(2). “As used in this article, ‘provoking’ and ‘reproachful’ describe those
words or gestures . . . which a reasonable person would expect to induce a breach of
peace under the circumstances.” Id. at ¶ 42.c.(1). Military courts, in addressing
provoking speech or gestures made by intoxicated persons arrested by police, have
noted the police are “trained to overlook verbal abuse in such situations and to
maintain a professional demeanor.” United States v. Shropshire, 34 M.J. 757, 758
(A.F.C.M.R. 1992). Furthermore, our superior court has noted the unlikelihood that
a trained custodian will open the restraints and retaliate against the speaker. United
States v. Thompson, 22 U.S.C.M.A. 88, 90, 46 C.M.R. 88, 90 (1972).

       Here, appellant simply answered “Yes, Your Honor” when asked if his words
were provoking or reproachful. There was no colloquy regarding whether a
reasonable member of law enforcement would breach the peace upon hearing
appellant’s words. While we have no doubt t hat an arrested, intoxicated person can
violate Article 117 when interacting with law enforcement personnel, we simply do
not believe the evidence is sufficient to demonstrate that occurred in this case . In
the absence of a meaningful colloquy about this element, we are left with a
substantial basis in law and fact to question whether a reasonable military policeman
in SPC NS’s position would have been provoked.



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GASTON—ARMY 20111007

                                   CONCLUSION

       The findings of guilty of Charge III and its Specification are set aside. The
remaining findings of guilty are AFFIRMED. In light of the error noted, we have
applied the principles of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).
In particular, the sentencing landscape has not changed, the remaining convictions
capture the gravamen of appellant’s criminal conduct (including assaulting law
enforcement officers and noncommissioned officers), appellant was sentenced by a
military judge, and we have the experience and familiarity with the remaining
convictions to reassess appellant’s sentence. Accordingly, only so much of the
sentence is affirmed that extends to a bad -conduct discharge and confinement for
146 days. 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 hereby ordered
restored.


                                         FOR THE COURT:




                                         ANTHONY
                                        ANTHONY          O. POTTINGER
                                                    O. POTTINGER
                                        Chief Deputy
                                         Acting ClerkClerkof
                                                          of Court
                                                             Court




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