UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            GLANVILLE*, YOB, and KRAUSS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                         Private E1 ERICA A. ANDERSON
                           United States Army, Appellant

                                    ARMY 20120503

                Headquarters, XVIII Airborne Corps and Fort Bragg
                  Tara A. Osborn, Military Judge (arraignment)
                     James E. Hardin, Military Judge (trial)
                  Colonel Paul S. Wilson, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt, JA (on
reply brief); Major Jacob D. Bashore, JA; Captain Kristin B. McGrory, JA; Captain
Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel,
JA (on brief).


                                  27 September 2013

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

KRAUSS, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to her pleas, of three specifications of failing to go to her appointed place
of duty; two specifications of going from her appointed place of duty; one
specification of willfully disobeying a superior commissioned officer; one
specification of disobeying a noncommissioned officer ; two specifications of
disrespecting a noncommissioned officer; two specifications of disrespecting a
superior noncommissioned officer; one specification of resisting apprehension; one
specification of wrongful use of marijuana; and one specification of breach of the
peace in violation of Articles 86, 90, 91, 95, 112a and 116, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 890, 891, 895, 912a, 916 (2006) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct


*Chief Judge GLANVILLE took final action in this case while on active duty.
ANDERSON — ARMY 20120503

discharge and confinement for forty-five days. Appellant was credited with thirty-
two days of pretrial confinement against her sentence to confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
assigns three errors, asserting that her pleas to one specification of disrespect to a
noncommissioned officer and to resisting apprehension were improvident, that the
ultimate offense doctrine requires dismissal of appellant’s conviction for willfully
disobeying a superior commissioned officer, and that relief for excessive post-trial
delay is warranted. Appellant also raises matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).

       We agree with appellant, in part, as to her first assignment of error and as to
her second assignment of error, and additionally, we find a substantial basis in law
and fact to reject her pleas to the remaining specifications of disrespect. We
disagree with appellant’s remaining assertion and find that, despite setting aside the
findings of guilty described above, reassessment and affirmation of the approved
sentence is warranted.

       In relation to Specification 2 of Charge III, the providence inquiry in this case
failed to establish that appellant’s written statements on a counseling form,
essentially disputing the premise of the counseling session and expressing reasons
for rejection of its import, constituted disrespect as contemplated by Article 91 ,
UCMJ. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶¶ 13.c(3),
15.c(5). On a more fundamental level, however, we find the military judge’s failure
to properly define disrespect and elicit admission of facts sufficient to establish
disrespect under Article 91, UCMJ, creates a substantial basis in law and f act to
reject appellant’s pleas to each specification and charge of disrespect in the case.
See generally United States v. Aleman, 62 M.J. 281, 283 (C.A.A.F. 2006) (quoting
United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005)).

       A judge must properly identify, explain , and define the elements of the
offense to which an accused pleads guilty as an essential step toward ensuring a
provident plea under Article 45, UCMJ. See United States v. Redlinski, 58 M.J. 117,
119 (C.A.A.F. 2003); United States v. Rice, 71 M.J. 719, 724-25 (Army Ct. Crim.
App. 2012). When an accused soldier liberates the government of its burden to
prove her guilt beyond any reasonable doubt by pleading guilty, the military judge
must ensure completion of a record that objectively establishes a knowi ng,
intelligent, and voluntary plea within the confines of an accused’s plea itself. See
United States v. Pretlow, 13 M.J. 85, 88-89 (C.M.A. 1982). It matters not that the
record demonstrates the likely success of a government prosecution or the apparent
opportunity for the appellant to have been provident at the time of the plea. See
United States v. Schell, 72 M.J. 339, 346 (C.A.A.F. 2013); Rice, 71 M.J. at 727.



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ANDERSON — ARMY 20120503

       In the case at hand, the military judge never properly defined disrespect,
repeatedly confused disrespect and disobedience when discussing the offenses with
the appellant, and never satisfactorily secured from the appellant admissions
sufficient to establish her understanding of the offense and recognition of her guilt
under the law. The stipulation of fact also fails to provide facts sufficient to remedy
this deficiency. Therefore, we reject appellant’s pleas of guilty to Specifications 1
and 2 of Charge III and to Additional Charge III and its Specifications. See United
States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18
U.S.C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969)); United States v.
Inabinette, 66 M.J. 320, 321 (C.A.A.F. 2008).

       We also agree with appellant that pursuant to the ultimate offense doctrine,
there is a substantial basis in law and fact to reject appellant’s plea to Specification
1 of Charge II. Neither the stipulation of fact nor the providence inquiry developed
or established sufficient facts to support a plea of guilty to a violati on of Article 90,
UCMJ, but rather merely establish the offense of breaking restriction in violation of
Article 134, UCMJ. See United States v. Traxler, 39 M.J. 476 (C.M.A. 1994);
United States v. Peaches, 25 M.J. 364 (C.M.A. 1987); United States v. Bratcher, 18
U.S.C.M.A. 12, 539 C.M.R. 125 (1969); United States v. Loos, 4 U.S.C.M.A. 478,
480-81, 16 C.M.R. 52, 54-55 (1954). In addition, the offense of breaking restriction
can no longer be considered a lesser-included offense of disobeying a superior
commissioned officer so this court is not free to substitute the former for the latter.
See generally United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010). The proper
remedy is dismissal of the charge under the circumstances. See id. at 472-73. See,
e.g., United States v. Hargrove, 51 M.J. 408, 409-10 (C.A.A.F. 1999); Peaches, 25
M.J. 364. We therefore find a substantial basis in law and fact to reject appellant’s
plea of guilty to Specification 1 of Charge II. See Inabinette, 66 M.J. 320.

       After considering the entire record, the parties’ briefs, and those matters
personally raised by appellant pursuant to Grostefon, we set aside the findings of
guilty as to Specification 1 of Charge II, Specifications 1 and 2 of Charge III, and
Additional Charge III and its Specifications and dismiss the same. 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 is AFFIRMED.

      Chief Judge GLANVILLE and Senior Judge YOB concur.




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ANDERSON — ARMY 20120503

                           FOR THE COURT:




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




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