UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             MULLIGAN, HERRING, and BURTON
                                 Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                           Staff Sergeant VICTOR M. LOPEZ
                             United States Army, Appellant

                                       ARMY 20140891

                        Headquarters, United States Army South
                           Wade N. Faulkner, Military Judge
                Lieutenant Colonel James S. Tripp, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Samuel E. Landes, JA (on brief).


                                        21 January 2016

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

Judge BURTON:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of possessing child pornography, one
specification of distributing child pornography, and one specification of adultery 1 in
violation of Articles 134, Uniform Code of Military Justice, 10 U.S.C. §934 (2012)
[hereinafter UCMJ]. The court sentenced appellant to be discharged from the service
with a dishonorable discharge, to be confined for twenty-three months and to be
reduced to the grade of E-1. The convening authority approved the sentence as
adjudged.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant counsel raises two errors, one of which merits discussion and relief.


1
 Appellant was found guilty of adultery, except the words, “was to the prejudice of good order and
discipline in the armed forces”.
LOPEZ—ARMY 20140891

                                            BACKGROUND

      Appellant was charged with and pleaded guilty to Specification 1 of The
Charge, in violation of Article 134, UCMJ, as follows:

                 [Appellant], U.S. Army, did, at or near Bogota, Columbia,
                 between 15 January 2014 and about 29 January 2014, knowingly
                 and wrongfully possess child pornography, to wit:
                 approximately three 2 images and 28 videos of a minor, or
                 what appears to be a minor, engaging in sexually explicit
                 conduct, and that said conduct was to the prejudice of
                 good order and discipline in the armed forces and of a
                 nature to bring discredit upon the armed forces.

       During the providence inquiry, the military judge described the two clauses of
the terminal element of Article 134, UCMJ offenses in the conjunctive, as they were
charged. Appellant admitted in his own words:

                 It’s prejudicial against good order and discipline,
                 sir, um, because, us, not only did the people I work
                 with had to find someone else immediately while I was
                 removed from my position; they also have to feel and do
                 everything that I have done for almost an entire an year
                 which is very difficult. Not only did I have to be in
                 different groups but also different entities. And in turn
                 it took—it takes time for the government to find someone
                 to replace me which means that they would have to do your
                 job plus their job.

       When asked by the military judge, “[W]hen it was discovered that you had this
child pornography were you suspended from your duties at all?” Appellant responded:
“I was told to go into my office and wait there and not go nowhere. And then my
supervisor was told the same thing not to leave me to go nowhere and I was in my
office still working because I didn’t know why at that time.”

      The providence inquiry concluded with no additional inquiry into prejudicial to
good order and discipline.

       Appellant was charged with and pleaded guilty to specification 2 of the Charge,
in violation of Article 134, UCMJ, as follows:

                 [Appellant], U.S. Army, did, at or near Bogota, Columbia,
                 on or about 22 January 2014, knowingly and wrongfully

2
    The charges was amended after pleas and before findings to two images.

                                                  2
LOPEZ—ARMY 20140891

                distribute child pornography, to wit: approximately six
                videos of a minor, or what appears to be a minor, engaging
                in sexually explicit conduct, to another person via a
                Peer-to-Peer Network called Shareaza, and that said conduct
                was to the prejudice of good order and discipline in the
                armed forces and of a nature to bring discredit upon the
                armed forces.

      During the providence inquiry for this specification, the military judge again
described the two clauses of the terminal element of Article 134, UCMJ offenses in
the conjunctive, as they were charged. When asked why his conduct was prejudicial
to good order and discipline, Appellant stated:

                Um, I was- - I was stating earlier as far as my
                position, not only I was gone now that somebody
                has to replace me and learn everything that I had
                to do in a short period of time which is not really
                - - it’s not possible to do. You have to be there
                for some amount of time.

       The providence inquiry for this specification concluded with no additional
inquiry into prejudicial to good order and discipline.

                                     LAW AND D ISCUSSION

        “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 to question
 the plea. Inabinette, 66 M.J. at 322.

            In this case, the providence inquiry does not adequately establish how
 appellant's conduct caused a “’direct and palpable prejudice’ to good order and
 discipline.” United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005). The
 investigation into appellant’s possession of child pornography o r t h e c o m m a n d ’ s
 r e s p o n s e a f t e r t h e i n v e s t i g a t i o n are not a legitimate basis for accepting the plea
 because it does not demonstrate how the charged offense had an effect on good
 order and discipline. Additionally, the stipulation of fact does not provide an
 additional factual basis upon which to satisfy this requirement. See United States v.
 Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).



                                                     3
LOPEZ—ARMY 20140891

            There is, however, a factual basis to support that appellant’s conduct is
 service discrediting. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
 2011). Consequently, we will dismiss the language “to the prejudice of good
 order and discipline in the armed forces” from Specification 1 a n d
 S p e c i f i c a t i o n 2 o f T h e Charge.

                                        CONCLUSION

     The court affirms only so much of the finding of guilty of Specification 1 of
The Charge as finds that:

             [Appellant], U.S. Army, did, at or near Bogota, Columbia,
             between 15 January 2014 and about 29 January 2014, knowingly
             and wrongfully possess child pornography, to wit:
             approximately two images and 28 videos of a minor, or
             what appears to be a minor, engaging in sexually explicit
             conduct, and that said conduct was of a nature to bring
             discredit upon the armed forces.

     The court affirms only so much of the finding of guilty of Specification 2 of
The Charge as finds that:

             [Appellant], U.S. Army, did, at or near Bogota, Columbia,
             on or about 22 January 2014, knowingly and wrongfully
             distribute child pornography, to wit: approximately six
             videos of a minor, or what appears to be a minor, engaging
             in sexually explicit conduct, to another person via a
             Peer-to-Peer Network called Shareaza, and that said conduct
             was of a nature to bring discredit upon the armed forces.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case 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. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the panel would have imposed a
sentence of at least that which was adjudged, and accordingly we AFFIRM the
sentence.

      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 that portion of the findings set aside by our decision, are
ordered restored.

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LOPEZ—ARMY 20140891


    Senior Judge MULLIGAN and Judge HERRING concur.

                               FOR THE
                               FOR THE COURT:
                                       COURT:




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




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