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

                           UNITED STATES, Appellee
                                        v.
                          Specialist AARON D. AMAYA
                          United States Army, Appellant

                                  ARMY 20120406

                     Headquarters, United States Army Alaska
                          David L. Conn, Military Judge
                   Colonel Tyler J. Harder, 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 Brantley, JA; Captain Daniel M. Goldberg, JA (on brief).


                                  24 February 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of failure to obey a lawful order and
one specification each of aggravated sexual assault, wrongful sexual contact,
obstructing justice, and furnishing alcohol to a minor, in violation of Articles 92,
120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 934 (2006 &
Sup. IV 2011), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for six
years, forfeiture of all pay and allowances, and reduction to E-1. Pursuant to a
pretrial agreement, the convening authority approved the adjudged sentence except
that he only approved forty-eight months of confinement and credited appellant with
130 days of confinement.
AMAYA - ARMY 20120406

        Appellant’s case is before this court for review pursuant to Article 66, UCMJ .
Appellant raises three assignments of error and personally raises matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One assignment of error
warrants discussion and relief. We find the military judge abused his discretion
when he accepted appellant’s plea to Specification 1 of Charge III, obstructing
justice. Specifically, the military judge failed to inquire how appellant’s conduct
was prejudicial to good order and discipline or service discrediting, and did not
elicit any factual basis for the terminal element of the obstruction of justice charge.

                                   BACKGROUND

       At the time of trial, the appellant was a twenty-three year old soldier with five
years of service. On 1 October 2011, appellant and Specialist (SPC) AN went to a
party together at a local club. Appellant and SPC AN were friends, and had been out
together on a few dates prior to that evening. After the party, they returned to the
barracks. Appellant provided SPC AN, who was nineteen years old, with alcohol.
Appellant’s roommate left the room about 0130, and appellant asked SPC AN to stay
until 0200, when he planned to leave and pick up a friend from the airport.
Appellant began kissing and touching SPC AN, she turned her head away and put her
hands up to block him. He pushed her back o nto the bed and sexually assaulted her.
Specialist AN asked him stop, and he continued with intercourse for another fifteen
seconds despite her repeatedly asking him to stop. He finally stopped, and SPC AN
got dressed and left the room. She then called her boyfriend and her mother.

      The next morning, the command escorted appellant to the installation
Criminal Investigation Command (CID) office. The CID agent detailed to interview
appellant determined that appellant smelled like alcohol, and instead of questioning
him, obtained a magistrate’s authorization to conduct a sexual assault examination
of appellant. Upon release from CID, appellant sent an apologetic text to SPC AN
and asked her not to “press charges against me.”

      On 4 October, appellant’s commander issued him an order not to travel
outside of the installation, not to enter establishments that served alcohol, and not to
consume alcohol.

        A few weeks later, appellant and several other soldiers were drinking at
appellant’s girlfriend’s on-post residence in contravention of his commander’s order.
The group then moved to an on-post club, where appellant drank more alcohol. A
few hours later, appellant’s girlfriend left the club to return home, and the remaining
members of the group went to an off-post club. Appellant had another drink there.
At approximately 0200 the next morning, another soldier dropped off appellant and
SPC JL at appellant’s girlfriend’s house. Specialist JL appeared to be heavily
intoxicated. She lay down on the couch in the living room to sleep , and appellant’s
girlfriend was in her own room. As SPC JL was sleeping, appellant digitally



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AMAYA - ARMY 20120406

penetrated her. When she awoke the next day she asked what had happened, and
appellant made incriminating statements. She reported the incident to her unit, and
the commander placed appellant into pretrial confinement until his court -martial.

                              LAW AND DISCUSSION

       “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
[hereinafter R.C.M.] 910(e).

       The accused must admit every element of the offense to which he pleads
guilty. See R.C.M. 910(e) discussion. A providence inquiry must set forth, on the
record, the factual bases that establish that the acts of the accused constituted the
offense to which he is pleading guilty. United States v. Care, 18 U.S.C.M.A. 535,
541, 40 C.M.R. 247, 253 (1969). Where appellant only admits to the elements, and
the totality of the inquiry fails to clarify the factual basis to support appellant’s
actions, the plea is improvident. See United States v. Jordan, 57 M.J. 236, 238
(C.A.A.F. 2002). However, when appellate courts review a “bare bones” providence
inquiry, the court should look to the entire record to determine whether appellant’s
plea is provident. Id. at 239.

       The government charged appellant with wrongfully endeavoring to impede a
criminal investigation by telling SPC AN “don’t press charges against me,” or words
to that effect, in violation of Article 134, “such conduct being prejudicial to good
order and discipline in the armed forces and of a nature to bring discredit upon the
armed forces.” See Manual for Courts–Martial, United States (2008 ed.), pt. IV, ¶
96.b. The military judge provided the correct elements and definitions for the
charged offense. He then conducted a very thorough inquiry of all elements of the
offense except for the terminal element. In fact, the military judge never asked
appellant if his conduct was either prejudicial to good order and discipline or serv ice
discrediting. Our superior court in Jordan cautioned “it is not enough to elicit legal
conclusions.” Id. at 238. The judge here did not even elicit any responses from
appellant as to the terminal element. Moreover, the stipulation of fact provided only
a recitation of the elements and did not provide any facts to support the conclusions.
Accordingly, on the record before us, we find a substantial basis in fact to question
appellant’s pleas to violating Clause 1 and 2 of Article 134, UCMJ.




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AMAYA - ARMY 20120406

                                    CONCLUSION

       On consideration of the entire record, the finding of guilty of Specification 1
of Charge III is set aside. The remaining findings of guilty are AFFIRMED. We are
able to reassess the sentence on the basis of the error 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). Appellant’s approved
punishment was substantially below the maximum authorized punishment, which
included a dishonorable discharge and thirty-eight years and one month confinement.
Appellant pleaded guilty in a trial by judge-alone and we “are more likely to be
certain of what a military judge would have done as opposed to members.”
Wincklemann, 73 M.J. at 16. While the finding of guilty that we set aside was not
insignificant, the remaining charges fully capture the gravamen of appellant’s
criminal conduct. Appellant committed an aggravated sexual assault against an
underage soldier to whom he provided alcohol after being ordered to avoid situations
with alcohol. Several weeks later he drank alcohol, left the installation, and went to
a bar in direct violation of his commander’s orders. Even worse, he committed
another sexual assault. Finally, based on our experience with the remaining
convictions, we are confident that we can reliably assess what sentence a military
judge would have imposed on the remaining findings of guilt. Id.

       Consequently, we are confident the military judge would have adjudged a
sentence no less severe than that approved by the convening authority in this case.
Additionally, we find that the sentence approved by the convening authority is
appropriate. See UCMJ art. 66. The sentence as approved by the convening
authority is AFFIRMED. All rights, privileges, and property, of w hich appellant
has been deprived by virtue of that portion of the findings set aside by this d ecision,
are ordered restored.


                                         FOR
                                          FORTHE
                                              THECOURT:
                                                  COURT:




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




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