UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Staff Sergeant AARON M. MAGILL
                            United States Army, Appellant

                                      ARMY 20110640

                         Headquarters, XVIII Airborne Corps
                           Michael J. Hargis, Military Judge
                     Colonel Stephen J. Berg, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Charles C. Choi, JA
(on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain T. Campbell Warner, JA (on brief).

                                       29 August 2013

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

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

COOK, Senior Judge:

        A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of four specifications of making a false official statement and
three specifications of wearing unauthorized insignia, in violation of Articles 107
and 134, Uniform Code of Military Justice, 10 U.S.C. § § 907, 934 (2006)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for one month, and reduction to the grade of E -
1. The convening authority credited appellant with fourteen days of confinement
credit.

       This case is before us for review under Article 66, UCMJ . Appellate counsel
raised two issues to this court. We find the first issue raised by appellate counsel
merits discussion and relief. We also find one additional issue requires discussion
and relief.
MAGILL— ARMY 20110640

                                   BACKGROUND

                    Noncommissioned Officer Evaluation Report

       In Specification 1 of Charge I, appellant was charged with making a false
official statement by representing he served as a U.S. Army Ranger when he did not .
The specification alleged appellant:

             On or about 7 August 2009, did, at or near COB Speicher,
             Iraq, with intent to deceive, sign an official report, to wit:
             DA Form 2166-8, NCO Evaluation Report, which report
             was false in that he never served as a U.S. Army Ranger,
             and was then known by the said [appellant] to be so false.

       Consistent with a pretrial agreement, appellant entered a plea of guilty to the
charged offense. During the providence inquiry, appellant admitted he
electronically signed his NCOER which he knew contained false information in that
he had never served as a Ranger. Specifically, in Part IV of the form, appellant’s
rater stated that appellant “utilized his past experience as an Infantryman and Ranger
to prepare his Soldiers for the battlefield.” Appellant then admitted that by
electronically signing the document, he was affirmatively asserting everything
contained within the document was true and accurate when he knew it was not. The
military judge and appellant engaged in the following colloquy regarding the effect
of appellant’s signature:

             ACC: . . . before you sign it, a block comes up and says
             essentially, as you’re signing this, make sure that
             everything within the document is true and correct, sir.

             MJ: Okay. So, when – you’re talking about when you sign
             it electronically?

             ACC: Yes, sir.

             MJ: There’s a bubble that pops up that says make sure this
             is true before you sign it?

             ACC: Yes, sir.

             MJ: Because it all needs to be true or words to that effect?

             ACC: Yes, sir.




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MAGILL— ARMY 20110640

             MJ: Did you see that bubble before you electronically
             signed it?

             ACC: I did, sir.

             MJ: All right. Was it true?

             ACC: That I had served as a Ranger? No. It’s false, sir.

             ....

             MJ: So, by signing that NCOER, were you asserting that
             you had served as a U.S. Army Ranger?

             ACC: Yes, sir.

A copy of the pop-up block described by appellant was not attached to the record of
trial or explained in the stipulation of fact.

       The NCOER at issue was admitted into evidence as an attachment to the
stipulation of fact. The signature block, block II.e., contained the following
language:

             I understand my signature does not constitute agreement
             or disagreement with the evaluations of the rater and
             senior rater. I further understand my signature verifies
             that the administrative data in Part I, the rating officials in
             Part II, the duty description to include the counseling
             dates in Part III, and the APFT and height/weight entries
             in Part IVc are correct.

       The military judge did not question appellant on the inconsistency between
appellant’s statements during the providence inquiry and the language set forth in
the signature block of the NCOER with respect to what exactly the appellant’s
signature served to verify. The military judge also did not question appellant on the
apparent inconsistency between the language appellant described was contained in
the pop-up block and the language within the document itself. Based on his
questions and appellant’s responses, the military judge found appellant’s plea
provident and accepted it.




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MAGILL— ARMY 20110640

                                    DD Form 214

       In Specification 2 of Charge I, appellant was charged with making a false
official statement by signing his DD Form 214 whic h he knew to contain false
information. The specification alleged appellant:

             On or about 2 September 2009, did, at or near Fort Carson,
             Colorado, with intent to deceive, sign an official record, to
             wit: DD Form 214, which record was false in that he neve r
             received the Armed Forces Expeditionary Medal (4 th
             Award), never received the NATO Medal (2 nd Award), and
             never received the Combat Infantryman Badge, and was
             then known by the said [appellant] to be so false.

        During his providence inquiry, appellant admitted his electronic signature
constituted a certification that all information contained within the document was
true and accurate. Appellant believed this to be the case because prior to digitally
signing the document, a pop-up block appeared on his computer screen informing
appellant his signature served as a verification of all information contained in the
document. A copy of the block described by appellant was not attached to the record
of trial or discussed in the stipulation of fact.

       As part of the stipulation of fact, the DD Form 214 was entered into evidence
without objection from the defense. The following language was expressly
contained within the DD Form 214 which included the awards at issue: “data herein
[is] subject to computer matching within DoD or with other Agencies for
verification purposes and determining eligibility or compliance for federal benefits.”
The military judge did not question appellant on the apparent inconsistency between
his admissions and this language contained within the DD Form 214. The military
judge accepted appellant’s plea of guilty to the charged offense.

                             LAW AND DISCUSSION.

        In his first assignment of error to this court, appellant argues the military
judge abused his discretion when he accepted appellant’s plea of guilty to making a
false official statement by signing an NCOER when his signature did not constitute
verification of the rater’s comments. In its brief to this court, the government agrees
with the position taken by the defense on thi s issue. After reviewing the record of
trial and the submissions of the parties, we agree with appellant’s argument and will
accept the concession by the government.

      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). “In doing so, we apply



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MAGILL— ARMY 20110640

the substantial basis test, looking at whether there is some thing in 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.” Inabinette, 66 M.J. at 322. “The military
judge shall not accept a plea of guil ty without making such inquiry of the accused as
shall satisfy the military judge that there is a factual basis for the plea.” 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[.]” United States v. Davenport, 9 M.J. 364, 367 (CMA 1980).

       If an accused sets up a matter inconsistent with the plea at any time during a
guilty plea proceeding, the military judge must resolve the conflict or reject the plea.
UCMJ art. 45(a); see also Rule For Courts-Martial [herinafter R.C.M.] 910(h)(2).
Moreover, this court has held that “[t]o resolve a matter inconsistent with a guilty
plea, the military judge must, therefore, identify the particular inconsistency at issue
and explain its legal significance to the accused who must then retract, disclaim, or
explain the matter.” United States v. Rokey, 62 M.J. 516, 518 (Army Ct. Crim. App.
2005).

                         Noncommissioned Officer Evaluation Report

        During the colloquy with the military judge, appellant admitted his signature
served to verify all facts contained within the NCOER and that by electronically
signing the document, he made a false official statement. Specifically, appellant
informed the military judge that by signing the form he asserted that he , in fact,
served as an Army Ranger. He believed this to be the case because prior to signing
the document, a block appeared on the computer screen advising appellant his
electronic signature served as verification of all facts contained within NCOER.
However, the NCOER itself, which was attached to the stipulation of fact as an
enclosure, contains language which specifically refutes appellant’s assertions during
the plea inquiry. Specifically, block II.e. provides: “I understand my signature does
not constitute agreement or disagreement with the evaluations of my rater and senior
rater . . . .” The express language contained within the document contradicts
appellant’s statements during the plea inquiry and his explanation of the block which
he asserted appeared prior to signing the document. The military judge did not
question appellant on this apparent i nconsistency between the plea inquiry and the
NCOER which was entered into evidence at trial.

       The language contained within block II.e of the NCOER calls into question
appellant’s understanding of the charge at issue and results in an inconsistency
between appellant’s providence inquiry and the language contained within the
NCOER. Such an inconsistency should have been resolved by the military judge.
See UCMJ art. 45(a) (the military judge must resolve any inconsistency raised or
reject the plea). Accordingly, we find there is a substantial basis in law and fact to
question appellant’s plea of guilty to false official statement. See United States v.



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MAGILL— ARMY 20110640

Care, 40 C.M.R. 247, 253 (C.M.A. 1969). As such, we will take appropriate action
in our decretal paragraph.
                                    DD Form 214

       Similarly, in Specification 2 of Charge I, appellant was charged with making a
false official statement by signing a DD Form 214 which contained false information
in that appellant had not been awarded the Expeditionary Medal (4 th Award), the
NATO Medal (2 nd Award), or the Combat Infantryman Badge. During the colloquy
with the military judge, appellant admitted his signature constituted an affirmative
assertion of all facts contained within the DD Form 214 and that by electronically
signing the document he verified his eligibility for all listed badges and awards . In
support of this admission, appellant informed the military judge that a block
appeared prior to him signing the document which advised appella nt that his
signature constituted a certification that all information in the document was true
and accurate.

       However, contrary to appellant’s assertions, the following language is
expressly set forth within the DD Form 214 itself: “[t]he information contained
herein is subject to computer matching within the Department of Defense . . . for
verification purposes . . . .” This language appears immediately after the listing of
awards for which appellant was allegedly entitled to wear. Thus, the form itse lf
calls into question any notion that his signature constituted a certification of
appellant’s eligibility for the awards listed on the DD Form 214. Additionally,
while appellant, during the providence inquiry, admitted a block popped up stating
his signature certified the truth of all matters contained within the document, such a
block was not part of the record and thus does not resolve the apparent
inconsistency, between appellant’s admission of guilt and the form itself. * Such an
inconsistency should have been resolved by the military judge. See UCMJ art. 45(a)
(the military judge must resolve any inconsistency raised or reject the plea).




*
  Although the providence inquiry does not support finding appellant made a false
official statement by signing the DD 214, the providence inquiry could have
established appellant made a false official statement when he submitted a false
Combat Infantry Badge certificate and when he falsely cla imed he had earned the
Armed Forces Expeditionary Medal (4 th Award) and the NATO medal (2 nd Award).
However, the government apparently chose to charge appellant with making a false
statement by signing a DD 214 that contained false awards instead of charg ing
appellant with making false statements that resulted in the DD 214 being populated
with awards appellant had not earned.



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MAGILL— ARMY 20110640

                                   CONCLUSION

       Upon consideration of the entire record and the submissions by the parties, we
set aside the findings of guilty to Specifications 1 and 2 of Charge I. 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. 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).

      Judge CAMPANELLA and Judge HAIGHT concur.



                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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




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