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

                              UNITED STATES, Appellee
                                          v.
                          Private E2 JAMES A. CRAWFORD
                            United States Army, Appellant

                                      ARMY 20110765

                               III Corps and Fort Hood
                          Gregory A. Gross, Military Judge
                    Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain John L. Schriver, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Rachael T. Brant, JA (on
brief).

                                         28 June 2013

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MARTIN, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of absence without leave terminated by apprehension, and
wrongful possession of spice, in violation of Articles 86 and 92, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 892 (2006) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of $978.00 per month for six months, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence, and credited appellant
with two days of confinement against the sentence to confinement.

       This case is before us for review under Article 66, UCMJ. Appellate counsel
raised two issues to this court and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the raised errors
warrants discussion and relief.
CRAWFORD—ARMY 20110765

                                  BACKGROUND

       Prior to trial, appellant entered into a pretrial agreement wherein he agreed to
plead guilty to all charges and specifications. At trial, consistent with the pretrial
agreement, appellant pleaded guilty to being absent without leave from 24 May 2005
until his absence was terminated by apprehension on 4 January 2011.

      The military judge then questioned appellant on his guilt to the charged
offenses. At the outset of the questioning, the military judge listed the elements for
absence without leave terminated by apprehension and defined apprehension by
providing the following instruction:

         “Apprehension” means that the accused’s return to military
         control was involuntary. It must be shown that neither the
         accused nor persons acting at his request initiated the return.

See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook
[hereinafter Benchbook], para. 3-10-2(d) (1 Jan. 2010). Appellant acknowledged he
understood and admitted the elements as set forth by the military judge. The
military judge then engaged in the following colloquy with appellant regarding the
absence without leave charge, alleged to have been terminated by apprehension:

         ACC: On 4 January 2011, I was arrested in my hometown of
         Haleyville, Alabama, by my local police department. They came
         to my work place with a warrant, arrested me, and took me back to
         Winston County Jail. I was held there until I was transferred back
         to military control. And also with the additional ----

         MJ: Hold on one second, Private Crawford.

         ACC: Yes, sir.

         MJ: Let me just ask you a couple of questions about the first one.
         So at any time in between the 24th of May of 2005 and 4th of
         January 2011, did you attempt to turn yourself back into military
         control?

         ACC: No, sir.

         MJ: Alright, at any time between those dates, did you think that
         you had authority to be gone?

         ACC: No, sir.



                                           2
CRAWFORD—ARMY 20110765

         MJ: You told me that you didn’t; but by any chance, did you
         think that you did?

         ACC: No, sir.

         MJ: Okay. Tell me about the possession of the spice.

The foregoing colloquy constituted the entirety of the plea inquiry conducted by the
military judge on the absence without leave offense. Based on his questions,
appellant’s responses, and the stipulation of fact, the military judge accepted
appellant’s plea as provident.

                             LAW AND DISCUSSION

       We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “[I]n reviewing a
military judge’s acceptance of a plea for an abuse of discretion [we] apply a
substantial basis test: Does the record as a whole show a substantial basis in law
and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted). There exists a
substantial basis in fact to question a plea of guilty where a military judge “fails to
obtain from the accused an adequate factual basis to support the plea.” Id. (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). In order to establish an
adequate factual predicate for a guilty plea, the military judge must elicit “‘factual
circumstances as revealed by the accused himself [that] objectively support that
plea[.]’” Jordan, 57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364,
367 (C.M.A. 1980)) (alterations in original).

       In this case, there exists a substantial basis to question the providence of
appellant’s plea to absence without leave terminated by apprehension.
We conclude that the facts, as provided by appellant, do not unequivocally establish
that his absence was terminated by apprehension. To establish an absence was
terminated by apprehension, for purposes of Article 86, UCMJ, “the facts on the
record must establish [the] return to military control was involuntary.” United
States v. Gaston, 62 M.J. 404, 405 (C.A.A.F. 2006). “Apprehension contemplates
termination of the accused’s absence in an involuntary manner; and termination
otherwise is an absence ended freely and voluntarily.” Id. (citing United States v.
Fields, 13 U.S.C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962)).

       During the colloquy with the military judge, appellant provided a “bare
bones” explanation of the arrest. He did not provide the judge with the nature of the
warrant, nor did he suggest whether the civilian arrest was made at the request of the
military. He did not indicate one way or another if he provided any information to


                                           3
CRAWFORD—ARMY 20110765

civilian authorities upon his arrest that may have changed the character of his return
to military control to one that was voluntary. Moreover, the military judge did not
ask any questions regarding the arrest to help explain the facts and circumstances.
Indeed, it is fair to say that similar to the appellant’s providence inquiry in Gaston,
the inquiry here was “exceptionally brief.” Gaston, 62 M.J. at 406.

       To assist in our review of the adequacy of the plea, we next review the
stipulation of fact. See id. (citing to the lower court’s description of the colloquy to
justify examining the entire record to determine whether facts to support the plea
were established); Jordan, 57 M.J. at 239 (providing a broader interpretation of
Article 45, UCMJ, and Rule for Courts-Martial 910(e), and expanding review of a
plea beyond the providence inquiry). The stipulation in appellant’s case provides, in
relevant part:

         The accused remained away from the Army and did not return to
         Fort Hood until he was apprehended by the local police in
         Haleyville, Alabama 4 January 2011. Thereafter, the accused was
         held in the Winston County Jail, Alabama until transferred to Fort
         Hood, Texas.

The foregoing paragraph contained in the stipulation of fact is similarly unhelpful in
establishing the element of termination by apprehension, in that it fails to address
whether appellant’s return to military control was voluntary or involuntary.

       Thus, while, the providence inquiry and the stipulation of fact clearly
establish that civilian authorities arrested appellant and then he was transferred to
military control, it does not automatically follow that the return to military control
was involuntary. 1 Therefore, looking at the record in its entirety, we find there is a
substantial basis in fact to question appellant’s plea that his absence was terminated




1
  Although the military judge defined “apprehension” for appellant, his inquiry on
the subject essentially ended there. However, had appellant’s case been tried before
a panel, the military judge would have instructed that an arrest by civilian
authorities and return to military control does not, by itself, prove that an accused’s
absence was terminated by apprehension. Benchbook, para. 3-10-2. Rather, it is
some evidence that the panel can consider in deciding whether the accused’s absence
ended voluntarily or involuntarily. Had this instruction been discussed with
appellant during the providence inquiry, it may have clarified how his absence was
terminated.




                                           4
CRAWFORD—ARMY 20110765

by apprehension. 2 We are, however, confident that the military judge’s inquiry is
minimally sufficient to establish appellant’s guilt to the lesser-included offense of
absence without leave.

                                   CONCLUSION

       Accordingly, upon consideration of the entire record, including those matters
personally raised by appellant pursuant to Grostefon, the court affirms only so much
of the findings of guilty of Charge I and its specification as finds that appellant did,
on or about 24 May 2005, without authority, absent himself from his unit, to wit:
Bravo Company, 1st Battalion, 12th Cavalry Regiment, 4th Brigade Combat Team,
4th Infantry Division, located at Fort Hood, Texas, and did remain so absent until on
or about 4 January 2011. 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 of United States v. Sales, 22 M.J. 305 (C.M.A. 1986),
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion in Moffeit, 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. See UCMJ art. 75(a).

      Senior Judge KERN and Judge ALDYKIEWICZ concur.
                                         FORTHE
                                        FOR  THECOURT:
                                                 COURT:



                                         ANTHONY O. POTTINGER
                                         Chief Deputy Clerk of Court
                                        ANTHONY O. POTTINGER




2
  Even when expanding our evaluation to the remainder of the record, we conclude
there is insufficient information to resolve the issue of termination by apprehension.
There is no further evidence on this issue prior to the military judge’s acceptance of
appellant’s plea, and only one passing comment during presentencing that appellant
“didn’t come back on his own.”



                                           5
