               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                       CAMILLE N. BROWN
           BOATSWAIN'S MATE THIRD CLASS (E-4), U.S. NAVY

                            NMCCA 201300340
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 6 June 2013.
Military Judge: CDR Michael Luken, JAGC, USN.
Convening Authority: Commanding Officer, Naval Station
Norfolk, Norfolk, VA.
Staff Judge Advocate's Recommendation: LT J.L. Pollio,
JAGC, USN.
For Appellant: CAPT Stephen White, JAGC, USN.
For Appellee: Maj Crista Kraics, USMC.

                           28 February 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     The appellant, a Navy third class petty officer with four
years’ active service, pleaded guilty at a special court-martial
to two specifications of unauthorized absence (UA), two
specifications of making a false official statement, larceny,
and six specifications of dishonorably failing to pay debts,1 in
1
  The appellant was charged with six specifications of uttering checks while
failing to maintain sufficient funds in violation of Article 123a, UCMJ.
Pursuant to the pretrial agreement (PTA), she entered pleas of guilty to “a
violation of Articles 86, 107, 121, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 907, 921, and 934. The
military judge sentenced the appellant to five months’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentenced
as adjudged, and except for the punitive discharge, ordered the
sentence executed. A pretrial agreement had no effect on the
sentence.

     In her appeal, the appellant asserts two assignments of
error: first, that the CA erred by taking action without a
properly authenticated record of trial; and, second, that one of
the guilty findings for UA is legally insufficient because her
command authorized her leave.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.




                Authentication of the Record of Trial

     As noted by the appellant in her brief, the authentication
page included in the original record of trial was unsigned.

violation of Article 134, the lesser included offense [LIO] of dishonorable
failure to maintain funds.” Record at 20; Appellate Exhibit X at 6-7. In
light of United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and United
States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011), treating an Article 134
offense as lesser included to an enumerated offense is no longer viable.
Neither the military judge nor counsel discussed any related issues on the
appellant’s pleas or the jurisdiction of the court to entertain them.
Nevertheless, we find that the PTA, wherein the appellant agreed to plead
guilty in exchange for sentence limitation and withdrawal of the greater
Article 123a offenses, served as a constructive referral of the Article 134
offenses. United States v. Wilkins, 29 M.J. 421, 424-25 (C.M.A. 1990); see
also United States v. Ballan, 71 M.J. 28, 32-33 (C.A.A.F. 2012) (holding that
a guilty plea pursuant to a PTA to the Article 134 offense of indecent acts
with a child in lieu of the charged offense of rape of a child was the
“functional equivalent” of referral of the Article 134 offense) (citing
Wilkins, 29 M.J. at 424). We also find that the appellant’s provident pleas
to the Article 134 specifications, to include the terminal element, rendered
harmless any lack of formal notice from a properly pleaded Article 134
specification. Ballan, 71 M.J. at 35-36. Appellate review is better served
with an on-the-record discussion of the impact of Jones on pleas such as
these and whether under the circumstances there lies any jurisdictional
defect or deficiency of notice.

                                      2
However, in a December 2013 filing, the Government submitted a
signed copy of the authentication page for inclusion in the
record.2 This signed authentication page matched the unsigned
copy in the record. However, as pointed out by the appellant, a
separate military judge presided at arraignment, and the
military judge who signed the authentication page did not
announce his substitution on the record. Based on our review of
the record, we are satisfied that the military judge who
presided at trial authenticated the record.3 As it now stands,
the record is properly authenticated save for the
unauthenticated arraignment session. We find this error to be
de minimis in light of the fact that at arraignment the
appellant reserved forum selection, motions and pleas.
Additionally, the appellant avers no related prejudice, and we
find none. Accordingly, we decline to grant relief.

                Legal Sufficiency of Charge I, Spec 1 (UA)

     In February 2012, the appellant requested maternity leave
from her command after falsely representing that she gave birth
on 17 February 2012. During the providence inquiry, she
explained to the military judge that she miscarried in September
2011, but told no one at her command. With her leave request,
she included a forged proof of birth letter from a local
hospital listing the above birth. Based on her false
representations, her command granted her maternity leave from 19
February to 2 April 2012 when she returned to duty.
Relying on United States v. Legaspi, 1995 CCA LEXIS 93
(A.F.Ct.Crim.App. 1995),4 the appellant next argues that her
conviction for UA based on her period of maternity leave is
legally insufficient because her command authorized her leave,
albeit under false pretenses. She maintains that her leave was
authorized despite her misrepresentations, and at most she is
guilty of making a false official statement.

     We review a military judge's decision to accept a guilty
plea for an abuse of discretion and questions of law arising
from the guilty plea de novo. United States v. Edwards, 69 M.J.
375, 376 (C.A.A.F. 2011). “‘In doing so, we apply the
substantial basis test, looking at whether there is something in

2
    Government Consent Motion to Attach of 16 Dec 2013.
3
    Record at 16; AE XIII.
4
  In Legaspi, the Air Force Court found improvident a guilty plea to attempted
unauthorized absence wherein the appellant obtained leave authorization
through a falsified Red Cross message. 1995 CCA LEXIS 93 at *6.


                                        3
the record of trial, with regard to the factual basis or the
law, that would raise a substantial question regarding the
appellant's guilty plea.’” Id. (quoting United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)).

     We recently evaluated a similar claim in United States v.
Hall, No. 201200219, 2013 CCA LEXIS 46, unpublished op.
(N.M.Ct.Crim.App. 31 Jan 2013) (per curiam), rev. denied, 72
M.J. 395 (C.A.A.F. 2013). In Hall, we rejected the Air Force’s
reasoning in Legaspi and instead agreed with the Army Court of
Criminal Appeals’ decision in United States v. Duncan, 60 M.J.
973, 976 (Army Ct.Crim.App. 2005). Hall, 2013 CCA LEXIS 46 at
*6-7. In Duncan, the Army Court held that “[a]n absence . . .
is ‘without authority’ if it is preceded by the use of false
statements, false documents, or false information provided by or
on behalf of an accused.” Duncan, 60 M.J. at 976.

     Undeterred, the appellant urges us to distinguish Hall and
Duncan from her case because throughout her maternity leave she
remained where she was supposed to be -- presumably, at home --
and under military control. In support of her argument, she
cites United States v. Hale, 42 C.M.R. 342 (C.M.A. 1970), for
the proposition that “[i]f the absence is authorized, even
though erroneously, military control is not lost, inasmuch as
the serviceman is where he authorized to be and remains amenable
to military orders.” Hale, 42 C.M.R. at 349 (citation omitted).

     We find Hale to be a very different case. In Hale, the
Army sent 2LT Hale home on leave awaiting further orders. After
a year of waiting but receiving no orders, 2LT Hale returned to
Fort Hood and asked for further information, at which point he
was detained. Eventually, he was prosecuted for conduct
unbecoming an officer and a gentleman in violation of Article
133, UCMJ, for his failure to return to military control and
notify the Army that no orders had been received in over a year.
But in overturning his conviction, the Court of Military Appeals
held that 2LT Hale’s absence was authorized, however
erroneously, and thus he remained under military control.

     Notably, however, 2LT Hale did not obtain leave through
false pretenses, nor was he prosecuted for unauthorized absence.
In the instant case, the appellant admitted to securing her
maternity leave through a forged certificate of live birth.
This document, and her claim that she had given birth, were
totally false and known by the appellant to be totally false.
As we held in Hall, we so hold here – an appellant should not
receive the benefit of a legitimate leave authorization if

                                4
procured through fraudulent means. In sum, nothing in the
record presents us with a substantial basis in law or fact for
questioning the providence of the appellant’s guilty plea.

                           Conclusion

     Accordingly, we affirm the findings and the sentence as
approved by the CA.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                                5
