UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                              CAMPANELLA, HERRING, and PENLAND
                                    Appellate Military Judges

                                 UNITED STATES, Appellee
                                              v.
                             Private E-1 JASMINE S. HERCULES
                                United States Army, Appellant

                                          ARMY 20150197

      Headquarters, United States Army Cyber Center of Excellence (Provisional)
                                    and Fort Gordon
                            Edye U. Moran, Military Judge
      Colonel Scott F. Young, Staff Judge Advocate (pretrial and recommendation)
       Lieutenant Colonel John A. Hamner II, Staff Judge Advocate (addendum)


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major John K. Choike, JA;
Captain John Gardella, JA (on brief).


                                            26 July 2016

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

    CAMPANELLA, Senior Judge:

       A military judge, sitting as special court-martial, convicted appellant,
pursuant to her plea, of one specification of desertion in violation of Article 85,
Uniform Code of Military Justice, 10 U.S.C. § 885 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to be discharged with a bad-conduct discharge
and to be confined for five months. The military judge credited appellant with
seventy days of pre-trial confinement credit. 1 The convening authority approved the
sentence as adjudged, but instead should have approved only so much of the

1
    At trial, the military judge ordered that appellant receive seventy days of

                                                                                   (continued…)
HERCULES—ARMY 20150197

sentence to confinement as provided for 150 days based on the terms of the pretrial
agreement.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, both of which merit discussion and one of which
merits relief.

                                     BACKGROUND

      Appellant pled guilty to a three-year desertion terminated by apprehension.
During the colloquy, the military judge accurately defined the elements of desertion
and explained them to appellant. Appellant stated she understood the elements and
had no questions.

      After the elemental explanation, the military judge asked appellant what made
her decide to leave her unit. Appellant responded:

              I had a meeting with my first sergeant and captain and we
              were talking about how I wasn’t getting paid and I was
              getting evicted from my place and they laughed and told
              me if I needed money that I should work, so I decided to
              leave. . .

(emphasis added.).



(…continued)
confinement credit, which is correctly entered in the report of the result of trial. The
staff judge advocate’s recommendation (SJAR) merely states that the accused was in
pretrial confinement for seventy days, but does not advise crediting appellant with
confinement credit. Both the SJAR and the addendum recommend the convening
authority “approve the findings and sentence as adjudged” without referencing the
confinement credit. The convening authority’s action and the promulgating order
also failed to include this credit. See Army Reg. 27-10, Legal Services: Military
Justice, para. 5-32.a. (3 Oct. 2011) (requiring a convening authority to “show in
[the] initial action all credits . . . regardless of the source of the credit . . . or for any
. . . reason specified by the judge”); United States v. Delvalle, 55 M.J. 648, 649 n.1,
656 (Army Ct. Crim. App. 2001); United States v. Arab, 55 M.J. 508, 510 n.2, 520
(Army Ct. Crim. App. 2001). Appellant did not assign this failure as error or raise
the matter personally pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). We will direct a correction in the promulgation order to reflect the proper
credit. Additionally, to the extent appellant has not already received this credit,
appellant will be credited with seventy days of confinement credit.


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       Appellant explained the meeting with her first sergeant and company
commander occurred at their beckoning after a previous period of AWOL and after
her recent discharge from an inpatient mental health facility. Appellant explained
she was not getting paid because of punishment she previously received for her other
unauthorized absences. When the military judge asked when the meeting with her
commander and first sergeant occurred, appellant indicated in January. The military
judge asked again “what made you leave?” Appellant responded “I was told to
leave.” In response, the military judge asked “Did anyone in your unit give you
authority to leave?” Appellant responded in the negative.

       The judge continued the colloquy with appellant and later asked appellant if
either her first sergeant or company commander gave her authority to be absent from
her unit at any time. She responded no. The military judge then asked if anyone
else in her unit gave her authority to leave–and appellant responded no. (emphasis
added.).

      As part of the pretrial agreement, appellant entered into a stipulation of fact in
which she admitted all the elements of desertion to include leaving without
authority. She also disclaimed any legal defense or justification for her desertion.

       Prior to her court-martial, a sanity board convened pursuant to Rule for
Courts-Martial [R.C.M.] 706 and determined appellant was: 1) mentally responsible
at the time of the charged offense; and 2) not currently suffering from a severe
mental disease or defect precluding her from having the ability to understand the
charges or cooperate intelligently in her defense. 2

      The pretrial agreement states “[m]y defense counsel has advised me of the
meaning and effect of my guilty plea, and I understand the meaning and effect
thereof.”

       The military judge accepted appellant’s plea to desertion terminated by
apprehension as provident. Appellant now complains the military judge abused her
discretion by failing to resolve an inconsistency created during the providence
inquiry when appellant stated “I was told to leave.”

                              LAW AND DISCUSSION

       We review a military judge’s decision to accept a plea of guilty “for an abuse
of discretion and questions of law arising from the guilty plea de novo.” United


2
  In appellant’s sentencing case, as mitigation evidence her treating physician
testified appellant suffered from severe depression, post-traumatic stress disorder
due to childhood abuse, and borderline personality traits. These diagnoses, however,
did not rise to the level of a defense.
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States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “[T]he abuse of discretion
standard of review recognizes that a judge has a range of choices and will not be
reversed so long as the decision remains within that range.” United States v. Gore,
60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 296 U.S. App.
D.C. 93, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)). A guilty plea will be set aside
on appeal only if an appellant can show a substantial basis in law or fact to question
the plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). The
court applies this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); R.C.M. 910(e).

       A providence inquiry into a guilty plea must establish that the accused
believes and admits he or she is guilty of the offense and that the factual
circumstances admitted by the accused objectively support the guilty plea. United
States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996); United States v. Davenport,
9 M.J. 364, 367 (C.M.A. 1980); UCMJ art. 45(a); R.C.M. 910(e). “If an accused
sets up matter inconsistent with the plea at any time during the proceeding, the
military judge must either resolve the apparent inconsistency or reject the plea.”
United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (quoting United States v.
Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)) (internal quotation marks omitted); see
also UCMJ art. 45(a). “A military judge abuses his discretion if he neglects or
chooses not to resolve an inconsistency or reject the inconsistent or irregular
pleading.” United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013)(quoting
United States v. Hayes, 70 M.J. 454, 457-58 (C.A.A.F. 2012)). The military judge
need only reject the plea when the accused “persists in his statements” that cause the
inconsistency. United States v. Thompson, 21 U.S.C.M.A. 526, 527, 45 C.M.R. 300,
301 (1972). Where the possibility of a defense exists, a military judge should secure
satisfactory disclaimers by the accused of this defense. Prater, 32 M.J. at 436
(citing United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976)).

       “In determining on appeal whether there is a substantial inconsistency, this
[c]ourt considers the ‘full context’ of the plea inquiry, including [a]ppellant’s
stipulation of fact.” Goodman, 70 M.J. at 399 (quoting United States v. Smauley, 42
M.J. 449, 452 (C.A.A.F. 1995)). “This court must find a ‘substantial conflict
between the plea and the accused’s statements or other evidence’ in order to set
aside a guilty plea. The ‘mere possibility’ of a conflict is not sufficient.” Hines, 73
M.J. at 124 (quoting United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012)).

       After thoroughly reviewing the record, we hold that the military judge
properly, and repeatedly, asked appellant, if anyone authorized her to leave during
the period of her desertion. While appellant raised the possibility of a defense, she
did not persist in this statement; instead she disclaimed having authorization to be
absent. During the colloquy, appellant indicated four times that no one in a position
of authority authorized her to leave during the period of her desertion. The first

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time the military judge asked her why she left, she very clearly indicated she
“decided” to leave. Recognizing appellant’s next statement “I was told to leave,”
the military judge immediately addressed the potentially inconsistent statement by
asking appellant if anyone in her unit authorized her to leave, which she answered in
the negative three more times during the rest of the colloquy. We conclude
appellant did not set up a matter inconsistent with her plea that would give rise to a
substantial basis in law or fact to question her plea. Having examined the “full
context” of the plea inquiry, to include appellant’s responses during the entire
colloquy, and the stipulation of fact, and appellant’s sentencing case, we hold the
military judge reconciled any possible substantial inconsistency presented by
appellant’s comment that she was told to leave. See Goodman, 70 M.J. at 399;
UCMJ art. 45(a). Any inconsistency in the inquiry was not “substantial,” and was
adequately resolved by appellant’s subsequent statements that no one gave her
authority to leave.

       As the appellant has shown no substantial basis in law or fact to question her
pleas of guilty, we conclude that the military judge did not abuse her discretion in
accepting appellant’s plea. See Inabinette, 66 M.J. at 322.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the sentence as provides for a bad-conduct
discharge and 150 days of confinement. To the extent appellant has not already
received this credit, appellant will be credited with seventy days of confinement
credit. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision are ordered restored.
See UCMJ arts. 58b(c) and 75(a).

      Judge HERRING concurs.

      PENLAND, Judge, dissenting:

       Appellant asserts a substantial basis in law and fact exists to question the
providence of her guilty plea with respect to whether her absence was without proper
authority. I agree, considering appellant’s statement to the military judge, “I was
told to leave.”

       Appellant was convicted of desertion, which began 19 January 2012 and
ended with her apprehension on 1 January 2015. After correctly advising appellant
of the elements of the crime, the military judge initiated the following exchange:




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         MJ: At this time I want you to tell me why you’re guilty
         of the offense listed in the specification--tell me what
         happened.

         ACC: [Inaudible].

         MJ: Private Hercules, if you will speak up a little bit. So
         you said you -- when you left Fort Gordon, when was that?

         ACC: On January 19th, 2012.

         MJ: And what unit were you assigned to on that day?

         ACC: Alpha Company, 67th ESB.

         MJ: How long had you been in the military?

         ACC: [Inaudible].

         MJ: So were you on active duty on the 19th January of
         2012?

         ACC: Yes, Your Honor.

         MJ: Where did you do your basic training?

         ACC: Fort Jackson.

         MJ: And were you on your AIT training in January of 2012,
         or had you completed AIT?

         ACC: I had completed AIT.

         MJ: So your first -- your basic training was at Fort Jackson
         and then where did you go right after that?

         ACC: Fort Gordon.

         MJ: Okay. What is your MOS?

         ACC: 25 Quebec.

         MJ: Which is what?



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HERCULES—ARMY 20150197

         ACC:    Multichannel Transmission Systems Operator-
         Maintainer.

         MJ: What made you decide to leave your unit on the 19th
         of January 2012?

         ACC: I had had a meeting with my first sergeant and
         captain and we were talking about how I wasn’t getting
         paid and I was getting evicted from my place and they
         laughed and told me if I needed money that I should work,
         so I decided to leave and . . .

         MJ: So you had a meeting with your first sergeant and the
         company commander?

         ACC: Yes, Your Honor.

         MJ: And you were saying you hadn’t gotten paid. Why had
         you not gotten paid?

         ACC: I believe it was because I had too many Article 15s.

         MJ: Okay, so you -- from looking over the Article 15 it
         looks like you had -- this was the Field Grade Article 15
         from 27 July 2011?

         ACC: I had two.

         MJ: So you weren’t getting paid?

         ACC: No, Your Honor.

         MJ: Then what happened; you got evicted you said -- you
         were living off post?

         ACC: Yes, Your Honor.

         MJ: Did you ask for the meeting in the open door policy or
         did they call you in?

         ACC: No, Your Honor, they called me in.

         MJ: And why did they call you in?



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HERCULES—ARMY 20150197

         ACC: I believe it was proper procedure because I had just
         gotten discharged from Eisenhower.

         DC: Your Honor, if I may have one moment.

         MJ: Yes.

         [Defense counsel conferred with the accused.]

         MJ: Private Hercules, from looking at the Stipulation of
         Fact it looks like you had gone AWOL -- you had left your
         unit back in 9 September 2011.

         ACC: Yes, Your Honor.

         MJ: So was the meeting with the first sergeant after you
         came back from that period of time of being AWOL?

         ACC: Yes, Your Honor.

         MJ: When was that meeting?

         ACC: [Inaudible].

         MJ: In January?

         ACC: Yes, Your Honor.

         MJ: And what made you leave?

         ACC: I was told to leave.

         MJ: Did anyone in your unit give you authority to be absent
         from the military?

         ACC: No, Your Honor.

         MJ: Where did you go?

         ACC: To Columbia, South Carolina.

         MJ: So you went to Columbia and -- did you ever make any
         attempt to return back to your unit at Fort Gordon?



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HERCULES—ARMY 20150197

         ACC: No, Your Honor.

         MJ: So you were in Columbia for the entire time?

         ACC: Yes, Your Honor.

         MJ: Up until 1 January -- or about 1 January 2015, so
         almost three years you were in Columbia?

         ACC: Yes, Your Honor.

         MJ: Did you ever return -- did you go try to return to your
         unit at any of that time -- during that three year period?

         ACC: No, Your Honor.

         MJ: And what were you doing in Columbia? Where were
         you working?

         ACC: At an apartment complex as a maintenance tech.

         MJ: So when you left when did you decide that you -- you
         stated you wanted to stay away permanently from your unit?

         ACC: Yes, Your Honor.

         MJ: When did you decide that?

         ACC: When I found a job.

         MJ: How long did it take you to find a job?

         ACC: Three months.

         MJ: So up until that time you weren’t sure if you were
         going to go back or not to your unit?

         ACC: I had not planned to.

         MJ: When you left did you take everything with you?

         ACC: I didn’t have anything...

         MJ: So there was really nothing to take?

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HERCULES—ARMY 20150197


         ACC: No, Your Honor.

         MJ: Did you take your uniforms or did you leave those
         behind?

         ACC: They had already collected all of my military
         uniforms.

         MJ: Before you left?

         ACC: Yes.

         MJ: And why did they do that?

         ACC: It was because I had a lot of FTRs and they didn’t
         want me to have to pay for it.

         MJ: They didn’t want you to have to pay for it?

         ACC: My CIF.

         MJ: Okay, so they had taken your CIF?

         ACC: Yes, Your Honor.

         MJ: But did you have uniforms?

         ACC: Yes, Your Honor.

         MJ: So you had uniforms but your CIF issued equipment
         they had already taken away from you?

         ACC: Yes, Your Honor.

         MJ: And were you living off post at that time?

         ACC: Yes, Your Honor.

         MJ: And you -- who did you report to directly when you
         were at your unit at Fort Gordon in 2012 in January?

         ACC: I reported to Captain [W] and First Sergeant [S].



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HERCULES—ARMY 20150197

             MJ: First Sergeant who?

             ACC: [S].

             MJ: And Captain ----

             ACC: [W].

             MJ: [W]. Did either First Sergeant [S] or Captain [W]
             give you authority to be absent from the unit at anytime?
             ACC: No, Your Honor.

             MJ: Did anyone else in the unit give you authority to have
             leave?

             ACC: No, Your Honor. 3

      (emphasis added.).

       I fully agree with my colleagues’ description of the legal principles involved.
See also United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006). However, I
respectfully disagree with their analysis and conclusion.

       The military judge asked appellant five questions bearing on whether her
absence was authorized. 4 The first was open-ended and prompted appellant to say,
inter alia, “I decided to leave and. . .” The military judge interjected and clarified
appellant was referring to a meeting with her company commander and first
sergeant. After ascertaining the meeting’s circumstances, the military judge asked
followed up with a second open-ended question, “[W]hat made you leave?”
Appellant said, “I was told to leave.” The remaining three questions regarding any
authority for appellant’s absence were certainly not inappropriate, but they were
pointed and, depending on one’s view, leading. Appellant did not reconcile the
inconsistency between her answers, and the military judge did not ask her to do so.



3
 A stipulation of fact included the following: “On or about 19 January 2012, the
accused again departed her unit without authority from a person who could give her
such authority. At the time the accused departed Fort Gordon, she knew she did not
have permission to depart Fort Gordon and remain away.”
4
  None of the five questions or appellant’s answers precisely referred to the time
period charged in this case; however, it seems reasonable to conclude the military
judge and appellant intended to refer thereto.


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HERCULES—ARMY 20150197

       Appellant indeed inculpated herself multiple times during the providence
inquiry—not counting the admissions contained in the stipulation of fact—but she
also plainly exculpated herself once. Military judges correctly and regularly instruct
members that the number of witnesses called should not be the guide in evaluating
testimony. This case illustrates a corollary—the number of times appellant
inculpated herself cannot per se override the single time she indicated she was told
to leave her unit. 5

       Appellant’s exculpation may have been false, misspoken, or the result of
confusion. And to be sure, it was controverted by her three brief answers to the
contrary. Nonetheless, it was inconsistent with her plea of guilty and, in my view,
created a substantial basis in law and fact, which the military judge did not resolve,
to question appellant’s providence.

       Military trial judges frequently confront difficult providence inquiries. I do
not regard that task lightly, particularly where, as here, an accused soldier 6 and
counsel for both sides do less than required to facilitate a legally adequate exchange.
While recognizing that challenge and the seriousness of the charged misconduct, I
respectfully dissent.

                                        FOR THE COURT:




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




5
 Under the circumstances here, the sequence of appellant’s conflicting statements
does not seem probative; I cannot discount appellant’s exculpatory answer only
because it was not her last.
6
  Appellant was diagnosed with multiple behavioral health illnesses, and they played
a significant role in her misconduct. A sanity board found her mentally responsible
and competent to stand trial; appellant specifically disclaimed mental responsibility
and competency issues in the stipulation of fact; and, the military judge reasonably
concluded that no mental responsibility or capacity issues were raised. I do not
quarrel with these determinations, but I do harbor concern that appellant’s medical
condition may have contributed to her inconsistent statements to the military judge.


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