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

                           UNITED STATES, Appellee
                                       v.
                       Specialist ALFREDO I. AGIRRE III
                         United States Army, Appellant

                                   ARMY 20140977

                      Headquarters, III Corps and Fort Hood
                       Rebecca K. Connally, Military Judge
                    Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Samuel E. Landes, JA (on brief).


                                  30 November 2015

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

CELTNIEKS, Judge:

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of assault with a dangerous weapon and
one specification of communicating a threat in violation of Articles 128 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for twenty days, and reduction to the grade of E-2. The convening
authority approved the adjudged sentence.

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel raises one assigned error, and appellant personally raises one
matter pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
assigned error warrants discussion and relief; the matter raised pursuant to Grostefon
is without merit.
AGIRRE—ARMY 20140977

                                   BACKGROUND

        Appellant was charged with and pleaded guilty to the Specification of Charge
II, in violation of Article 134, UCMJ, as follows:

             [Appellant], U.S. Army, did, at or near Fort Hood, Texas,
             on or about 30 May 2014, wrongfully communicate to Dr.
             [S.E.] a threat that there would be consequences and he
             was going to get him, or words to that effect, and that said
             conduct was to the prejudice of good order and discipline
             in the armed forces and was of a nature to bring discredit
             upon the armed forces.

       During the providence inquiry, the military judge described the two clauses of
the terminal element of Article 134, UCMJ, in the disjunctive, despite the fact the
clauses were charged in the conjunctive. The following colloquy occurred between
the military judge and appellant:

             MJ: Now, was your communication of this threat either to
             the prejudice of good order and discipline in the armed
             forces or of a nature to bring discredit upon the armed
             forces. [sic]. It could be one or the other or both and if so
             how?

             ACC: Well, Your Honor, there are many people who put
             this uniform on and have done a lot of good in this world
             and they bring honor to this uniform and for me wearing
             the uniform to do such actions it doesn’t convey all that
             honor and discipline that we have worked for.

             MJ: Dr. [S.E.], do you know if he is military or civilian?

             ACC: He is a civilian, Your Honor.

             MJ: Do you think that--and he knows you are a Soldier,
             right?

             ACC: Yes, Your Honor.

             MJ: Do you think that by hearing that from you and as
             you said he is trying to help you and do you think that
             feeling threatened by a service member that might--and
             it’s just a question so it’s either yes or no if you feel this

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AGIRRE—ARMY 20140977

             way, that might bring the reputation of the service to
             civilians because he is a civilian, kind of bring it down a
             notch?

             ACC: Yes, Your Honor.

There was no additional substantive inquiry between the military judge and appellant
regarding the prejudice of good order and discipline clause of the terminal element.

                              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 to question the
plea. Inabinette, 66 M.J. at 322.

       While this is a close case, the providence inquiry does not adequately show
how appellant’s conduct caused a “direct and palpable effect on good order and
discipline.” United States v. Erickson, 61 M.J. 230, 232 (C.A.A.F. 2005). Beyond
appellant mentioning the word “discipline,” his dialogue with the military judge did
not develop any context relative to the offense and its impact on good order and
discipline. A few extra questions to ensure appellant understood this clause of the
terminal element would negate the need to extrapolate facts from elsewhere in the
record.

       Further, the stipulation of fact does not provide an additional factual basis
upon which to satisfy this requirement. See United States v. Care, 18 U.S.C.M.A.
535, 40 C.M.R. 247 (1969). Although a sworn statement enclosed with the
stipulation indicates a non-commissioned officer from appellant’s unit witnessed the
threat as he escorted appellant to the emergency room at a hospital on-post, the
evidence in the record did not buttress a prejudicial impact. The NCO reported the
incident to security officers, his acting first sergeant, and the military police, but he
did not elaborate on how appellant’s conduct affected him or the unit. Without
additional evidence, there is not a sufficient basis for accepting the plea under
Clause 1 of Article 134, UCMJ because the record before us does not clearly
establish the charged offense was prejudicial to good order and discipline. See
Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Part IV,
60.c.(1), (2), (3).




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AGIRRE—ARMY 20140977

       There is, however, a factual basis that supports appellant’s conduct was
service discrediting. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). Consequently, we will dismiss the language “was to the prejudice of good
order and discipline in the armed forces and” from the Specification of Charge II.

                                    CONCLUSION

      The court affirms only so much of the finding of guilty of The Specification
of Charge II as finds that:

             [Appellant], U.S. Army, did, at or near Fort Hood, Texas,
             on or about 30 May 2014, wrongfully communicate to Dr.
             [S.E.] a threat that there would be consequences and he
             was going to get him, or words to that effect, and that said
             conduct was of a nature to bring discredit upon the armed
             forces.

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 principals of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), the court AFFIRMS the sentence.

      Senior Judge TOZZI concurs.

CAMPANELLA, Judge, dissenting:

       I respectfully disagree with my brethren. My read of the record does not
establish a substantial basis in law and fact to reject appellant's plea as to the Article
134, UCMJ, terminal element “prejudicial to good order and discipline.” To the
contrary, the record reveals that appellant understood the nature of the offense,
freely admitted the elements of that offense, and pleaded guilty because he was
guilty. The military judge properly defined the terminal elements prior to engaging
in the providence inquiry with appellant. Appellant’s responses adequately touched
on the element of prejudice to good order and discipline as defined under Article
134, UCMJ. MCM, Part IV, ¶ 60.c.(2)(a).

       The stipulation of fact further discussed the terminal element by providing
first-hand NCO testimony as to how appellant's acts involved unit intervention - that
constitutes direct evidence of prejudice to good order and discipline. Appellant’s
escort and NCO witnessed appellant’s misconduct and provided a sworn statement,
included as an enclosure to the stipulation of fact and separately entered into
evidence as a prosecution exhibit. In the NCO’s sworn statement he states that soon

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AGIRRE—ARMY 20140977

after the incident, “I called… my acting [first sergeant] and the [military police] to
explain what had happened. Once I finished my [p]hone call I had came back in to
the hospital to find more security and hospital staff standing around his room.”
[sic]. The location of appellant’s conduct is also worth recognizing. It is reasonable
to infer that other soldiers could have witnessed appellant’s misconduct because it
took place in the emergency room at the on-post hospital. Appellant also expressly
agreed that the stipulation of fact could be used “on appeal to determine the
providence of [his] guilty plea.” While this is a close case, in light of the entire
record, I conclude appellant knowingly, intelligently, and voluntarily entered a plea
of guilty and the judge did not abuse his discretion in accepting his plea. I would
affirm the findings of guilty and the sentence as approved by the convening
authority.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:



                                      JOHN P. TAITT
                                       JOHN
                                      Chief   P. TAITT
                                            Deputy Clerk of Court
                                       Deputy Clerk of Court




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