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

                              UNITED STATES, Appellee
                                          v.
                          Private E1 ROBERT L. DAVIS, JR.
                            United States Army, Appellant

                                      ARMY 20120244

                      Headquarters, III Corps and Fort Hood
                         Gregory A. Gross, Military Judge
         Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA
(on brief).

For Appellee: Major Robert A. Rodigues, JA; Captain Daniel H. Karna, JA
(on brief).


                                         29 July 2013

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of desertion terminated by apprehension
in violation of Article 85, Uniform Code of Military Justice, 10 U.S.C. § § 885
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge, confinement for three months, and forfeiture of
$994.00 pay per month for three months.

      This case is before us for review under Article 66, UCMJ. Appellate counsel
assigned two errors to this court and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the assigned errors
warrants discussion and relief.
DAVIS—ARMY 20120244

                                   BACKGROUND

       Prior to trial, appellant entered into a pretrial agreement wherein he agreed to
plead guilty to The Charge and its specifications. At trial, consistent with the
pretrial agreement, appellant pleaded guilty to the charged offense.

      The military judge then questioned appellant on his plea. At the outset of the
questioning, the military judge listed the elements for desertion terminated by
apprehension and defined apprehension as follows:

         Apprehension [means] that your return to military control was
         involuntary, that is, that neither you nor person’s [sic] acting at
         your request initiated your return.

      The military judge did not further explain that mere proof an accused is
apprehended by civilian authorities is insufficient to establish that an accused’s
return to military control was involuntar y. 1 Appellant acknowledged he understood



1
 The remainder of the relevant definition provided in the Military Judges’
Benchbook provides:

             That the accused was apprehended by civilian authorities,
             for a civilian violation, and was thereafter turned over to
             military control by the civilian authorities, does not
             necessarily indicate that the accused’s return was
             involuntary. Such return may be deemed i nvoluntary if,
             after the accused was apprehended, such civilian
             authorities learned of the accused’s military status from
             someone other than the accused or persons acting at his
             request.

             In addition, the return may be involuntary if, after being
             apprehended by civilian authorities, the accused disclosed
             his identity as a result of a desire to avoid trial,
             prosecution, punishment, or other criminal action at the
             hands of such civilian authorities. However, if the
             accused disclosed his identity to the civilian authorities
             because of the accused’s desire to return to military
             control, the accused’s return should not be deemed
             involuntary or by apprehension.


                                                                        (. . . continued)

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DAVIS—ARMY 20120244

the military judge’s definition and admitted the elements as set forth by the military
judge. The military judge then engaged in the following colloquy with appellant
regarding the termination by apprehension element of Specification 2 of The Charge:

         MJ: Okay. All right. And then how did you come back under
         military control when you left that time?

         ACC: I was arrested, sir. I forgot to turn my headlights on when
         I left the bank and they pulled me over and run [sic] my name. I
         had a warrant out. I was arrested, held in Baldwin County jail for
         eight days and then the MPs brought me back here, sir.

         ....

         MJ: At any time in between those dates did you attempt to turn
         yourself back in to military control?

         ACC: No, sir.

The foregoing colloquy constituted the entirety of the plea inquiry conducted by the
military judge on the element of terminated by apprehension . 2 Based on his
questions, appellant’s responses, and the stipulation of fact, the military judge
accepted appellant’s plea as provident.


(. . . continued)
               The arrest of an accused by civilian authorities does not,
               in the absence of special circumstances, te rminate his
               unauthorized absence by apprehension where the record
               does not show such apprehension to have been conducted
               with or done on behalf of the military authorities. Thus,
               in the absence of special circumstances, mere
               apprehension by civilian authorities does not sustain the
               government’s burden of showing the return to military
               control was involuntary.

Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3 -10-
2 (1 Jan. 2010).
2
 The colloquy between the military judge and appellant regarding the apprehension
element of Specification 1 of The Charge was equally as sparse. However, as
discussed infra, the stipulation of fact clearly established appellant’s f irst absence
was terminated by apprehension pursuant to a military deserter warrant.



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DAVIS—ARMY 20120244

                               LAW AND DISCUSSION

       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). “[I]n reviewing a
military judge’s acceptance of a plea for an abuse of discretion [we] apply a
substantial basis test: Does the record as a whole show a substantial basis in law
and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted). There exists a
substantial basis in fact to question a plea of guilty where a military judge “fails to
obtain from the accused an adequate factual basis to support the plea.” Id. (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). 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[.]’” Jordan, 57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364,
367 (C.M.A. 1980)) (alterations in original).

        In this case, there exists a substantial basis in fact to question the providence
of appellant’s plea to desertion terminated by apprehension in regards to
Specification 2 of The Charge. To establish that an absence was terminated by
apprehension, “the facts on the record must establish [the] return to military control
was involuntary.” United States v. Gaston, 62 M.J. 404, 405 (C.A.A.F. 2006).
“Apprehension contemplates termination of the accused’s absence in an involuntary
manner; and termination otherwise is an absence ended freely and voluntarily.” Id.
(citing United States v. Fields, 13 U.S.C.M.A. 193, 196, 32 C.M.R. 193, 196
(1962)). Mere proof of apprehension by civilian authorities is insufficient to
establish that a return to military control is inv oluntary. Id. Rather, in order to
establish the absence was terminated by apprehension, the record must indicate the
apprehension was “connected with or done on behalf of the military authorities .”
Id. at 197. (emphasis added).

       Here, the military judge failed to provide the entire detailed definition from
the Military Judges’ Benchbook regarding apprehension and further failed to elicit a
sufficient factual predicate to establish the appellant’s absence was terminated by
apprehension. During the plea colloquy, appellant merely stated the civilian
authorities informed him he “had a warrant out.” This broad statement simply does
not establish the warrant was issued by military authorities for appellant’s deserter
status or whether the warrant was issued by civilian authorities for other matters.
Nor did appellant indicate he provided any information to civilian authorities upon
his arrest that may have changed the character of his return to military control to one
that was voluntary. We note that had the military judge provided the full Benchbook
instruction regarding apprehension, the likelihood of this element not being
established would have been greatly reduced.



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DAVIS—ARMY 20120244

       To assist in our review of the adequacy of the plea, we next review the
stipulation of fact. The stipulation in appellant’s case provides, in relevant part :

         The accused was again arrested by civilian authorities on 9
         November 2011 and the Accused was present for duty seven (7)
         days later, on 16 November 2011. The command prepared the
         appropriate DA Forms 4187 to reflect that the Accused was
         changed from Dropped From Rolls to Confined Civilian Authority
         (9 November 2011) and then Present for Duty (16 November
         2011) . . . .

The foregoing paragraph contained in the stipulation of fact is similarly and equally
unhelpful in establishing the element of terminatio n by apprehension, in that it fails
to address whether appellant’s return to military control was voluntary or
involuntary and whether the warrant was issued at the behest of the military. In
contrast, regarding Specification 1 of The Charge, the stipulation of fact clearly
established the warrant at issue was a “deserter” warrant issued at the request of
military authorities. In relation to appellant’s first arrest, the stipulation of fact
provided:

             Alabama police discovered that the Accused had a deser ter
             warrant when he applied for a Commercial Drivers
             License (CDL) pursuant to his duties as a Baldwin County
             Commission Employee. Conechuh County, Alabama
             police officers arrested him at or near his place of
             employment. The desertion ended that day, bec ause the
             Accused was arrested specifically pursuant to the deserter
             warrant . . . .

Thus, the stipulation of fact only further complicates the issue at hand as it is clear
appellant’s first absence was terminated by apprehension while the same cannot be
said for appellant’s second absence. The stipulation of fact simply does not address
the nature of the warrant for Specification 2 of The Charge . We are, however,
confident that the military judge’s inquiry is sufficient to establish appellant’s guilt
to desertion not terminated by apprehension .

                                    CONCLUSION

      Accordingly, upon consideration of the entire record, including th ose matters
personally raised by appellant pursuant to Grostefon, we affirm only so much of the
findings of guilty of Specification 2 of The Charge as finds that appellant did, on or
about 16 May 2011 without authority and with the intent to remain away therefrom
permanently, absent himself from his unit, to wit: 1st Battalion, 7th Cavalry
Regiment (Rear)(Provisional), 1st Brigade Combat Team (Rear)(Provisional), 1st


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DAVIS—ARMY 20120244

Cavalry Division (Rear)(Provisional), located at Fort Hood, Texas, and did remain
so absent in desertion until on or about 9 November 2011.

       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 as approved by the convening
authority 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).

      Senior Judge COOK and Judge HAIGHT concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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