UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                        Specialist BRAEDEN J. TORGENSEN
                           United States Army, Appellant

                                      ARMY 20150356

                               Headquarters, I Corps
                         Samuel A. Schubert, Military Judge
                   Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez,
Jr., JA; Captain John L. Schriver, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).


                                         22 June 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

        A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of possession of a controlled substance
and one specification of assaulting a military police officer, in violation of Articles
112a and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 928 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and six months confinement and granted appellant seven days of pretrial
confinement credit. Pursuant to a pretrial agreement, the convening authority
approved only so much of the sentence as provided for a bad-conduct discharge and
ninety days confinement. He also credited him with seven days of confinement
credit.
TORGENSEN —ARMY 20150356

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error which requires discussion and relief. Specifically, we
find that the military judge abused his discretion by not inquiring into the possibility
the accused lacked mental responsibility following evidence that raised a potential
defense, and by accepting appellant’s plea without the accused affirmatively
negating the defense.

                                   BACKGROUND

       In December 2014, during a command health and welfare inspection,
appellant’s command found a small vial containing anabolic steroids in appellant’s
barracks room among his belongings. Appellant was relieved from his team leader
position in his unit and an investigation ensued. While under investigation for
possessing steroids, appellant went to an on-post recreation establishment and drank
heavily into the morning hours until he was extremely intoxicated – so much so that
appellant had no recollection of the events that follow herein.

       At around 0030, when appellant and his friend, Specialist (SPC) W, left the
drinking establishment, appellant became emotional and upset over his work
situation. They returned to their barracks at the Ranger compound and parted ways.
Around 0330, inebriated, appellant telephoned SPC W and said “it all doesn’t matter
now.” Appellant’s comments, combined with his earlier emotional state, led SPC W
to think appellant was having suicidal ideations. After two more similar calls, due
to his concern, SPC W approached the staff duty officer to report appellant’s
behavior. Then, a gunshot rang out from the parking lot. They ran to the parking lot
and saw appellant exiting his vehicle and pointing a gun to his head.

        The military police (MP) responded to the parking lot immediately. Five
patrol cars formed a perimeter around appellant. An MP approached appellant and
tried to calm him. Appellant put the gun to his own head and said “why am I too
much of a pussy to pull the trigger?” Appellant asked the MP if they would shoot
him if he fired his gun towards the range. The MP said “no,” and appellant said
“let’s test that” and fired a shot towards the range.

       The MP continued to talk to appellant to calm him and offered him a
cigarette. As appellant smoked the cigarette, appellant surprised the MPs by firing
another round towards the range. He then asked to speak with his father on a cell
phone. While talking to his father, appellant fired another round from his gun to
prove to his father that he was not lying about being surrounded by police with a gun
to his head.

      Appellant then asked the MP, “If I point my gun at you or the building will
you shoot me?” The MP asked appellant not to do that – but appellant waved his
gun in the direction of several MPs anyway. The entire event lasted about forty

                                           2
TORGENSEN —ARMY 20150356

minutes, culminating with appellant placing his gun on the ground and surrendering
to the Special Weapons and Tactics (SWAT) team that responded to the scene.

       At his court-martial, appellant described the aforementioned events, not based
on his own independent recollection, but rather based on the account of others.
Appellant did state that while he did not recall the events, he believed he was trying
to harm himself. The military judge accepted appellant’s plea.

       During his sentencing case, appellant described spending thirty days in an
inpatient facility after the aforementioned attempted suicide incident. He also
described being diagnosed with post-traumatic stress disorder (PTSD), manic
depressive disorder, and a chemical dependency. He stated that he attended alcohol
and substance abuse and behavioral health counseling multiple times per week.
Appellant also described an extremely abusive childhood which included physical,
emotional, and sexual abuse. Lastly, appellant described undergoing a medical
procedure for PTSD to block the Stellate Ganglion nerves in an attempt to reduce
appellant’s fight or flight response in the brain as well as reducing his hyperarousal,
anxiety, and aggression. A letter from a behavioral health specialist that confirmed
appellant underwent this medical procedure and outlined his ongoing mental health
care was entered into evidence at sentencing.

       On appeal, appellant calls into question the providency of his guilty plea.
Appellant asserts the military judge erred by not resolving a matter inconsistent with
his plea where the record and the providence inquiry reveal evidence of a possible
lack of mental responsibility defense.

                              LAW AND DISCUSSION

       This court reviews a military judge’s decision to accept a plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A
decision to accept a guilty plea will be set aside only where the record of trial shows
a substantial basis in law or fact for questioning the plea. Id. Should an appellant
establish facts that raise a possible defense, the military judge must inquire further
and resolve the matters inconsistent with the plea, or reject the plea. United States
v. Phillippe, 63 M.J. 307, 310-11 (C.A.A.F. 2006). When conducting this inquiry,
“[a] military judge can presume, in the absence of contrary circumstances, that the
accused is sane.” United States v. Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009).
However, if “the accused's statements or other material in the record indicate a
history of mental disease or defect on the part of the accused, the military judge
must determine whether that information raises either a conflict with the plea and
thus the possibility of a defense or only the ‘mere possibility’ of a conflict,” as
“[t]he former requires further inquiry on the part of the military judge, the latter
does not.” Id (citations omitted). A failure to do so constitutes a substantial basis
in law or fact for questioning the guilty plea. Id.

                                           3
TORGENSEN —ARMY 20150356

       In this case, the military judge reviewed in detail the defense of voluntary
intoxication with appellant. He neglected, however, to inquire into a potential
defense of lack of mental responsibility despite appellant’s discussion of various
troubling mental diagnoses, his personal behavioral health history, and the facts on
the record regarding the incident forming the basis of the charge in this case. This is
of particular concern in this case where appellant has no recollection of the events
that form the basis of the charged offense.

       While the allied documents in the record of trial indicate appellant underwent
a Rule for Courts-Martial 706 sanity board prior to his court-martial, the court-
marital record and the colloquy contain no reference to it. We also find no
indication in the court-martial record that the military judge was aware appellant
underwent a sanity board or its results. We will neither impute such knowledge to
the military judge, nor will we presume the matter of mental responsibility was
discussed thoroughly with defense counsel and appellant.

      The stipulation of fact in this case contains a general defense disclaimer but
does not specifically include mental responsibility. Additionally, the military judge
did not cover the defense disclaimer paragraph in any detail with appellant on the
record. In short, the defense of mental responsibility is not mentioned on the record.

       These facts lead this court to conclude the military judge erred by not
inquiring into the accused’s possible lack of mental responsibility defense which
was reasonably raised by the evidence – and by accepting appellant’s plea without
the accused affirmatively negating this potential defense.

                                   CONCLUSION

       On consideration of the entire record, the findings of guilty and the sentence
are set aside. A rehearing is authorized. All rights, privileges, and property, of
which the appellant has been deprived by virtue of the findings and sentence hereby
set aside by this decision, and are ordered restored. See UCMJ arts. 58b(c) and
75(a).

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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


                                          4
