UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           TOZZI, CELTNIEKS, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                      v.

                       Staff Sergeant RYAN O. ANDERSON
                          United States Army, Appellant

                                   ARMY 20150128

                      Headquarters, III Corps and Fort Hood
                   Kenneth Shahan, Military Judge (arraignment)
                     Wade N. Faulkner, Military Judge (trial)
                    Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormack M. Smith, JA; Captain John Gardella, JA (on brief).


                                    31 August 2016

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

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification each of conspiracy to commit larceny,
failure to obey a general regulation, and maltreatment in violation of Articles 81, 92,
and 93, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 893 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for forty-five days, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned one error to this court, and appellant personally raised
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
assigned error warrants discussion and relief. The matters raised pursuant to
Grostefon are without merit.
ANDERSON—ARMY 20150128


       In his assigned error, appellant asserts the military judge abused his discretion
in accepting a guilty plea to the Specification of The Additional Charge, conspiracy
to commit larceny, which alleged appellant conspired with Private First Class (PFC)
TM to steal Basic Allowance for Housing (BAH) by introducing PFC TM to a man
known as JR. Specifically, appellant claims the military judge failed to elicit facts
necessary to prove the resulting marriage between PFC TM and JR was only entered
into for the purpose of obtaining benefits. See Lutwak v. United States, 344 U.S.
604 (1953). We agree and provide relief in our decretal paragraph.

       “A military judge’s acceptance of an accused’s guilty plea is reviewed for an
abuse of discretion. The test for an abuse of discretion is whether the record shows
a substantial basis in law or fact for questioning the plea.” United States v. Schell,
72 M.J. 339, 345 (C.A.A.F. 2013) (citing United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008)).

       In this case PFC TM, who was subject to appellant’s orders, approached
appellant about her desire to enter into a “contract marriage” because she needed
money to care for her sick mother. Appellant knew JR, a friend of his, also wanted
to get married. With this knowledge, appellant admitted to introducing PFC TM to
JR and arranging their face-to-face meeting at a barbecue on 3 September 2012.
Private First Class TM and JR were married on 4 September 2012. Private First
Class TM subsequently submitted a DA Form 5960 “Authorization to Start, Stop, or
Change Basic Allowance for Quarters” listing JR as her dependent, and began
receiving BAH in the amount of $1,023 per month. In explaining his understanding
of a “contract marriage” and the receipt of BAH, appellant stated “I knew it was
wrong because you are supposed to get married for the right reasons and they were
getting married for the wrong reason. For BAH and separate rations, Your Honor, to
help out with money.” Appellant later explained “I knew it was wrong to get
married for those circumstances and reasons, Your Honor.”

       In Lutwak, the Supreme Court described the provisions of the War Brides Act,
stating:

             By directing in the war Brides Act that “alien spouses” of
             citizen war veterans should be admitted into this country,
             Congress intended to make it possible for veterans who
             had married aliens to have their families join them in this
             country without the long delay involved in qualifying
             under the proper immigration quota. Congress did not
             intend to provide aliens with an easy means of
             circumventing the quota system by fake marriages in
             which neither of the parties ever intended to enter into the
             marital relationship . . . . The common understanding of a
             marriage, which Congress must have had in mind when it

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ANDERSON—ARMY 20150128

             made the provision for “alien spouses” in the War Brides
             Act, is that the two parties have undertaken to establish a
             life together and assume certain duties and obligations.”

Lutwak, 344 U.S. at 611. The government avers that this court should look to the
primary purpose behind the marriage and determine if the singular focus was to gain
access to BAH to which PFC TM was not otherwise entitled.

       Considering the entire record, to include appellant’s responses during his
providence inquiry and the stipulation of fact, we are not convinced that the military
judge elicited enough facts to determine whether the singular focus of the marriage
between PFC TM and JR was to gain access to BAH to which PFC TM was not
otherwise entitled. In the cases cited by the government, there were developed facts
to indicate the marriages at issue were not entered into by parties who had
undertaken to establish a life together and assume certain duties and obligations.
See United States v. Bolden, 28 M.J. 127 (C.M.A. 1989); United States v. Phillips,
52 M.J. 268 (C.A.A.F. 2000); United States v. Hall, 74 M.J. 525 (A.F. Ct. Crim.
App. 2014). Here, although appellant testified that PFC TM needed money to help
her sick mother and that PFC TM was not marrying for the “right reasons,” we note
that PFC TM and JR spoke on the telephone prior to their face-to-face introduction,
and the record is silent regarding their intentions vis-à-vis the duties and obligations
of a married couple. Unlike the cases cited by the government, the military judge
elicited no evidence as to the intentions of the parties regarding their marital
relationship beyond their marriage ceremony. For this reason we have a substantial
basis in fact for questioning appellant’s plea to conspiracy to commit larceny.

       Given the error noted above, and applying the factors in United States v.
Winckelmann, we are confident, considering the remaining specifications, we can
reassess appellant’s sentence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). Appellant
remains convicted of one specification of failure to obey a general regulation, and
one specification of maltreatment. The Specification of The Additional Charge
carries a maximum period of confinement for ten years, while the maximum
confinement in this case was thirteen years. Thus, the penalty landscape has
significantly changed. Id. Appellant elected trial by judge alone, and we “are more
likely to be certain of what a military judge would have done as opposed to
members.” Id. at 16. Finally, this court reviews the records of a substantial number
of courts-martial involving violations of general orders and maltreatment, and we
have extensive experience and familiarity with the level of sentences imposed for
such offenses under various circumstances. Id. Considering the nature of
appellant’s misconduct, we affirm only so much of the sentence as extends to a bad-
conduct discharge, confinement for thirty days, and reduction to the grade of E-1.
We are convinced that based upon the entire record, the military judge would have
imposed a sentence of at least this severity. We find this reassessed sentence is not
only purged of any error but is also appropriate.


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ANDERSON—ARMY 20150128

                                   CONCLUSION

       The finding of guilty of the Specification of the Additional Charge is set aside
and dismissed. 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 Winckelmann, we affirm only so much of the sentence as extends to a
bad-conduct discharge, confinement for thirty days, and reduction to the grade of E-
1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the findings and sentence set aside by this decision, are
ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Judge CELTNIEKS and Judge BURTON 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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