UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                   COOK, HAIGHT, and MARTIN
                                     Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                                Specialist KEITH J. HIGGINS
                                United States Army, Appellant

                                        ARMY 20110664

                           Headquarters, 82d Airborne Division
                      Tara A. Osborne, Military Judge (arraignment)
                       Karin G. Tackaberry, Military Judge (trial)
                  Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Captain A. Jason Nef,
JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                           30 April 2014

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of attempted unpremeditated murder and willfully disobeying a
superior commissioned officer, in violation of Articles 80 and 90, Uniform Code of
Military Justice, 10 U.S.C. §§ 880 and 890 [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for eleven years, and to
be reduced to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with 352 days against his sentence to confinement. 1


1
    The convening authority waived automatic forfeitures for a period of four months.
HIGGINS—ARMY 20110664

      Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant raises three assignments of error, two of which merit
discussion, and one of which merits relief. 2

                                   BACKGROUND

       In July 2010, appellant’s battalion commander, Lieutenant Colonel (LTC) JB,
found appellant guilty of two offenses at a nonjudicial proceeding held pursuant to
Article 15, UCMJ. Included in the nonjudicial punishment imposed by LTC JB was
“extra duty for 45 days.” 3 There is no evidence that LTC JB provided any further
direction or specificity regarding the time, place, or manner of appellant’s extra
duty. Instead, the record indicates the specific details of this duty were implemented
by noncommissioned officers (NCO) in the unit. Specifically, on the date appellant
failed to complete his extra duty, 26 August 2010, he was ordered by his platoon
sergeant, Staff Sergeant (SSG) IK, to report to the unit staff duty NCO at 1800 in
order to report for extra duty that consisted of “moving . . . a big pile of rocks” with
three other soldiers who were also serving extra duty.

       Appellant arrived approximately fifteen minutes late for his extra duty at
which point he began performing his assigned detail. However, SSG IK interrupted
appellant to address his tardiness prompting a verbal altercation between the two
men. Ultimately, SSG IK directed appellant to report to the battery commander to
resolve the matter. Following a short meeting with the battery commander, SSG IK
began escorting appellant back to his place of duty. Appellant was highly agitated,
and after further argument with SSG IK, appellant stormed off to his personal
vehicle and drove to his on-post home rather than return to his extra duty.
Appellant’s actions of retrieving his personal firearm and returning to his unit in
order to confront SSG IK formed the basis for appellant’s conviction of attempted
murder.

       Appellant was also charged with and found guilty of willfully disobeying LTC
JB’s command to serve forty-five (45) days of extra duty. Under the circumstances
of this case, this misconduct was inappropriately charged as a violation of Article
90, UCMJ.



2
 We have also considered those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without
merit.
3
 This punishment was entered on the Dept. Army Form 2627 (Record of Proceedings
Under Article 15, UCMJ) signed by LTC JB on 22 July 2010.




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                                    DISCUSSION

                         Sufficiency of Willful Disobedience

       In his first assignment of error, appellant argues that his conviction of
willfully disobeying a superior commissioned officer is factually and legally
insufficient, because the order he violated was not personally directed by LTC JB
and because his actions did not constitute willful defiance of LTC JB’s authority. In
its response, the government concedes “that the evidence is legally insufficient to
sustain appellant’s conviction for willfully disobeying a superior commissioned
officer.” We agree and accept the government’s concession.

       The facts presented at trial confirm that appellant, on 26 August 2010, did fail
to wholly and satisfactorily comply with LTC JB’s order to perform extra duty, but
he did not do so with intentional defiance, at least not as it pertains to LTC JB.

In United States v. Byers, our superior court held an accused’s disobedience of a
driving-privilege revocation signed by the commanding general, but issued to the
accused by the commander’s subordinate staff officer, did not amount to an Article
90, UCMJ, violation where “the order was a routine administrative sanction [and]
. . . there [was] no evidence that the [commander] personally issued the order or that
he knew that the order had been violated . . . .” 40 M.J. 321, 323-24 (C.A.A.F.
1994). The court concluded “the evidence regarding the commander’s involvement
in the willful-disobedience charge, even when viewed in the light most favorable to
the prosecution, fail[ed] to establish a direct and personal order from [the
commander] which, when disobeyed, was a ‘personal affront to his dignity.’” Id.
(quoting United States v. Keith, 3 U.S.C.M.A. 579, 583, 13 C.M.R. 135, 139 (1953);
see also United States v. Wartsbaugh, 21 U.S.C.M.A. 535, 541, 45 C.M.R. 309, 315
(1972) (disobedience of a captain’s command that was “predicated upon prohibitions
stated in a battalion directive . . . should have been brought under Article 92(2)
[UCMJ]” rather than Article 90); United States v. Bartsh, ARMY 20111104, 2013
WL 6913002 at *3 (Army Ct. Crim. App. 31 Dec. 2013) (mem. op.) pet. denied
     M.J.     (C.A.A.F. 22 Apr. 2014) (setting aside Article 90, UCMJ, offense where
appellant’s violation of company commander’s order to remain on the installation
was not the “defiant brand of disobedience” contemplated by that article).

       Here, evidence established that although appellant arrived late to and left
early from his appointed place of duty on the charged date, he did report and
perform his assigned extra duty, at least for some period of time. Specifically, he
was approximately fifteen minutes late after hurrying home to eat dinner during the
brief interlude between his regular duty day in the field and his extra duty back at
the unit. Additionally, there was no evidence that appellant had failed or refused to
comply with his nonjudicial punishment for the preceding five weeks. We therefore
hold the evidence is insufficient to support appellant’s conviction for willful



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HIGGINS—ARMY 20110664

disobedience of LTC JB’s order to serve forty-five days of extra duty. Nevertheless,
the evidence does “support all the elements of the lesser included offense of failure
to obey a lawful order” pursuant to Article 92(2), UCMJ. United States v. Ranney,
67 M.J. 297, 301 (C.A.A.F. 2009); see also Byers, 40 M.J. at 324; Bartsh, 2013 WL
6913002 at *3.

                                   Ultimate Offense

       In his second assignment of error, appellant argues the “ultimate offense”
doctrine requires this court to dismiss the Article 90, UCMJ, willful disobedience
charge and its specification because use of this article “improperly escalated the
severity of a minor offense . . . .” Specifically, he asserts his actions should have
been charged pursuant to Article 86, UCMJ, as the gravamen of his misconduct was
failure to go to his appointed place of duty and then going from his appointed place
of duty. See Manual for Courts-Martial, United States (2008 ed.) [hereinafter
MCM], pt. IV, ¶¶ 10.b(1) and (2).

       Appellant correctly notes the ultimate offense doctrine prohibits escalating
the severity of or punishment for a relatively minor offense 4 by charging it as willful
disobedience of a lawful order to comply with “an obligation [an accused] was
already under by reason of his status as a soldier . . . .” United States v. Bratcher,
18 U.S.C.M.A. 125, 128, 39 C.M.R. 125, 128 (1969); see also United States v.
Quarles, 1 M.J. 231, 232 (C.M.A. 1975); United States v. Loos, 4 U.S.C.M.A. 478,
480-81, 16 C.M.R. 52, 54-55 (1954) (failure to report in compliance with order to
complete “routine” duties should have been charged as violation of Article 86(1),
UCMJ, in the absence of evidence the issuing officer lifted the order above the
“common ruck.”). However, under the facts of this case, appellant’s argument and
any possible prejudice is rendered moot by our conclusion above that his misconduct
only amounted to a violation of Article 92(2), UCMJ, “failure to obey a lawful
order.” 5




4
 The maximum punishment for a violation of Article 86(1) or (2), UCMJ, includes
confinement for one month and forfeiture of two-thirds pay per month for 1 month.
MCM, pt. IV, ¶ 10.e. The maximum punishment for willfully disobeying a superior
commissioned officer includes a dishonorable discharge, confinement for five years,
and forfeiture of all pay and allowances. MCM, pt. IV, ¶ 14.e(2).
5
  We reiterate our recent analysis in United States v. Phillips, 73 M.J. 572 (Army Ct.
Crim. App. 2014), that if the elements are met for a disobedience charge, there is no
requirement the offense be charged under another potentially applicable article.




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HIGGINS—ARMY 20110664

      The MCM has long contained a provision, found in a footnote renumbered
throughout the years, regarding the maximum punishment for certain Article 92,
UCMJ, offenses:

             [T]he punishment set forth does not apply in the following
             cases: if in the absence of the order or regulation which
             was violated or not obeyed the accused would on the same
             facts be subject to conviction for another specific offense
             for which a lesser punishment is prescribed; or if the
             violation or failure to obey is a breach of restraint
             imposed as a result of an order. In these instances, the
             maximum punishment is that specifically prescribed
             elsewhere for that particular offense.

MCM (2008 ed.), pt. IV, ¶16.e.(2) (note). 6 This sentence restriction serves to
alleviate the concern of escalating the punishment for disobedience beyond that
permitted for the “ultimate offense” involved. See Quarles, 1 M.J. at 232
(“apprehension” of escalated punishments via Article 90, UCMJ, for preexisting
duties “is of no import, and indeed, is irrelevant when the offense is charged under
Article 92, due to the sentence restriction applicable thereto found in footnote 5 of
the Table of Maximum Punishments . . . .”); see also Loos, 4 U.S.C.M.A. 478, 481-
82, 16 C.M.R. 52, 55-56 (affirming Article 92, UCMJ, conviction despite holding
that appellant’s offense “amount[ed] to no more than a violation of Article 86(1)”
and remanding the case for sentencing in accordance with “Footnote 5” limits).

       Here, as in Loos, the “gravamen” of appellant’s failure to complete the extra
duty directed by LTC JB is a failure to go to his appointed place of duty, and then
leaving his appointed place of duty, in violation of Article 86(1) and (2), UCMJ,
respectively. Id. We are able to affirm appellant’s conviction of the lesser included
offense of Article 92(2), UCMJ, but only so long as he is afforded the “safeguard” of
the MCM’s sentence cap in its maximum punishment table. See Quarles, 1 M.J. at
233. 7 Accordingly, we will provide relief in our decretal paragraph, reassess the

6
  The note does not appear in the 2012 edition of the Manual for Courts-Martial.
However, as the President has taken no action to repeal it, we view this as a
typographical error in the printing of the Manual for Courts-Martial (2012 ed.). See
Exec. Order No. 12,473, 49 Fed. Reg. 17152 (Apr. 13, 1984); Exec. Order No.
12,550, 51 Fed. Reg. 6497 (Feb. 19, 1986); Exec. Order No. 13,387, 70 Fed. Reg.
60697 (Oct. 14, 2005).
7
 According to Quarles, the “Footnote 5” provision “clearly contemplates that
offenses involving violation of orders may be charged and successfully prosecuted

                                                                      (continued . . .)


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HIGGINS—ARMY 20110664

sentence, and apply the maximum punishment of Article 86, UCMJ, to appellant’s
conviction for violating Article 92(2), UCMJ.

                                   CONCLUSION

        Upon consideration of the entire record and the submissions by the parties,
the court affirms only so much of the finding of guilty of the Specification of Charge
II as finds that appellant:

             U.S. Army, having knowledge of a lawful order issued by
             Lieutenant Colonel (O-5) JJB to serve forty-five (45) days
             of extra duty, an order which it was his duty to obey, did
             at or near Fort Bragg, North Carolina, on or about 26
             August 2010, fail to obey the same by reporting late and
             leaving early from his appointed place of duty, in
             violation of Article 92(2), UCMJ.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the 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).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Despite the disparity in maximum sentences to confinement between
Article 90, UCMJ, and Article 86(1) or (2), UCMJ, appellant remains convicted of
attempted murder, which carries a maximum sentence to confinement for life in
prison. Second, appellant was sentenced by a military judge alone. Third, we find
the nature of the remaining offenses, as modified and appropriately limited, still
captures the gravamen of the original specifications. Finally, based on our
experience, we are familiar with the remaining offenses so that we may reliably
determine what sentence would have been imposed at trial.



(. . . continued)
under Article 92 even where the facts would support another offense, lesser
punishable [sic], in the absence of the order. The conviction for violating Article 92
remains firm and may not be dismissed; only the sentence potentially is affected.”
Quarles, 1 M.J. at 233 (citing Loos, 4 U.S.C.M.A. 478, 16 C.M.R. 52).




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HIGGINS—ARMY 20110664

       Reassessing the sentence based on the noted error and the entire record, we
AFFIRM only so much of the sentence as provides for a bad-conduct discharge,
confinement for 130 months, and reduction to the grade of E-1. 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 this decision are ordered restored. See
UCMJ arts. 58b(c) and 75(a).

      Senior Judge COOK and Judge MARTIN concur.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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