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

                               UNITED STATES, Appellee
                                            v.
                             Private E1 ELLIOTT H. HAYES
                              United States Army, Appellant

                                        ARMY 20120480

                         Headquarters, United States Army Alaska
                              David L. Conn, Military Judge
                        Colonel Tyler Harder, Staff Judge Advocate


For Appellant: Captain A. Jason Nef, JA; Captain Susrut A. Carpenter, JA (on
brief).

For Appellee: Major Robert A. Rodrigues, JA (on brief).


                                       27 November 2013

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of willfully disobeying a superior
commissioned officer, two specifications of wrongful use of marijuana, three
specifications of assault consummated by battery, simple assault, abuse of a public
animal, and communicating a threat in violation of Articles 90, 112a, 128, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 890, 912a, 928, and 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for nine months, and forfeiture of $944 per month for nine
months. The convening authority, pursuant to a pretrial agreement, approved only
so much of the sentence as provided for a bad-conduct discharge, confinement for
seven months, and forfeiture of $944 per month for nine months. 1

1
 Appellant was credited with 69 days of confinement against his sentence of
confinement.
HAYES—ARMY 20120480

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant submitted a merits pleading to this court but personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find those
matters raised by appellant are without merit. However, one additional issue
warrants discussion and relief.

                                  BACKGROUND

       Appellant was charged with willfully disobeying a superior commissioned
officer, in violation of Article 90, UCMJ. Specification 1 of Charge I alleged:

             In that Private (E-1) Elliott H. Hayes, U.S. Army, having
             received a lawful command from COL Edward Thomas, a
             superior commissioned officer, then known by the accused
             to be a superior officer, to refrain from driving from 10
             December 2011 to 09 March 2012, or words to that effect,
             did, at or near Joint Base Elmendorf-Richardson, Alaska,
             on or about, 27 February 2012, willfully disobey the same.

      Appellant pleaded guilty to the above specification. During the providence
inquiry, the military judge advised appellant of the elements of the offense as
follows:

             [O]ne, that you received a certain lawful command from
             Colonel Edward Thomas to refrain from driving from 10
             December 2011 to 9 March 2012; two, that at the time
             Colonel Thomas was your superior commissioned officer;
             three, that you knew at the time that Colonel Thomas was
             your superior commissioned officer; and four, that at or
             near Joint Base Elmendorf-Richardson, Alaska on or about
             27 February 2012, you willfully disobeyed the lawful
             command.

       Additionally, the military judge provided specific definitions and explanations
for a number of terms encompassed by the offense, including “willful disobedience,”
“superior commissioned officer,” and “lawful [command].” Specifically, the
military judge advised, “A superior commissioned officer means any commissioned
officer in the same Armed Forces as you who is superior in rank and not inferior in
command to you.” After defining a number of other offenses to which appellant
pleaded guilty, the military judge returned to the Arti cle 90, UCMJ, offense, asking
appellant, “Why are you guilty of willfully disobeying C olonel Thomas? What did
you do?” Appellant explained that Colonel Thomas issued an order to appellant to
not drive and appellant disobeyed that order when he “went out and drove.”




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HAYES—ARMY 20120480

   Subsequently, the military judge asked appellant, whether “Colonel Thomas is an
Army officer?” Appellant responded, “He’s an Air Force Officer, sir.” The military
judge followed up by asking “Is he in--in your chain of command?” Appellant
responded that “He’s--he's the garrison commander, and he’s in charge of the driving
on Post.”

    Next, the military judge turned to defense counsel and asked, “[are you] satisfied
that, even though this is an Air Force officer, under the circumstances as reflected in
paragraph 13 Charlie, 1B of Article 89’s description [in the Manual for Courts-
Martial], that this would amount to a superior commissioned officer?” Defense
counsel replied that he was, “given the nature of the Joint Base concept here at Fort
Richardson.” The military judge then asked the trial counsel if “you’re satisfied
likewise that even though Colonel Thomas is an Air Force officer, under the
circumstances because he’s--commands the installation, that he’s within the chain o f
command of . . . Private Hayes?” Trial counsel agreed, offering that “as garrison
commander he would be, your honor.”

    The military judge then confirmed with appellant that he had received this
“written” command from Colonel Thomas from “someone in [his] chain of
command,” and he knew it was from Colonel Thomas because it had his signature on
it. After covering a number of other matters concerning the offense —including
specific details about appellant’s actions that violated the order—counsel each
agreed that no “additional inquiry [was] necessary to support the accused’s plea for
this offense.”

                              LAW AND DISCUSSION

       “A military judge's decision to accept a guilty plea is reviewed for an abuse of
discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing
United States v. Gallegos, 41 M.J. 446 (C.A.A.F. 1995)). An appellate court will
not set aside a guilty plea unless there is “a ‘substantial basis’ in law and fact for
questioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).

       A military judge can abuse his discretion if he accepts appellant's guilty plea
based upon “an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008)). A knowing and voluntary plea requires the military judge to explain the
elements of an offense to the accused and to elicit the factual basis of the offense.
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003) (citations omitted).
Failure to do so constitutes reversible error unless “it is clear from the entire record
that the accused knew the elements, admitted them freely, and pleaded guilty
because he was guilty.” Id.




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HAYES—ARMY 20120480

       The Manual for Courts-Martial specifically defines a “superior commissioned
officer” when the “accused and victim [are] in different uniformed service[s]” as
follows:

             If the accused and the victim are in different uniformed
             services, the victim is a “superior commissioned officer”
             of the accused when the victim is a commissioned officer
             and superior in the chain of command over the accused . .
             . . The victim is not a “superior com missioned officer” of
             the accused merely because the victim is superior in grade
             to the accused.

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶
13.c(1)(b) (emphasis added).

       Here, while the providence inquiry plainly established that Colonel Thomas
was the garrison commander at Joint Base Elmendorf -Richardson, it failed to prove
that he was in the “chain of command over the accused.” 2 To the contrary, the
evidence elicited demonstrated that appellant and Colonel Thomas w ere members of
different uniformed services, and despite the efforts of appellant and counsel to
explain away this discrepancy—suggesting Colonel Thomas was “in charge of
driving,” or that he somehow assumed a position in appellant’s chain of command by
virtue of his role as garrison commander of a joint installation—we are not
persuaded. 3 Rather, we conclude that the revelation that Colonel Thomas was
actually a member of the Air Force created a substantial basis in law and fact to
question the providency of appellant’s plea, and the military judge abused his
discretion by accepting appellant’s guilty plea.

       Alternatively, appellant’s guilty plea to willful disobedience is also suspect
based on the manner in which the order was issued to him. As our superior court has
explained, disobedience of “a routine administrative sanction for a traffic offense”
does not amount to a violation of Article 90, UCMJ, in the absence of evidence
establishing that the officer issuing the order “did anything to lift his routine order
‘above the common ruck.’” United States v. Byers, 40 M.J. 321, 323 (C.M.A. 1994)
(quoting United States v. Loos, 4 U.S.C.M.A. 478, 480, 16 C.M.R. 52, 54 (1954));
See also United States v. Ranney, 67 M.J. 297, 299-300 (C.A.A.F. 2009). Here,
appellant explained that the order suspending his driving privileges was signed by

2
  The stipulation of fact merely recited the specification directly from the charge
sheet. It is of no assistance in disposing of this issue. Additionally, the actual
written order that is the subject of this offense does not appear among the exhibits.
3
  We note appellant’s unit was 2nd Battalion, 377th Parachute Field Artillery
Regiment, 4th Brigade (Airborne), 25th Infantry Division —not United States
Garrison, Joint Base Elemendorf-Richardson.


                                           4
HAYES—ARMY 20120480

Colonel Thomas, but that he physically received the written order from some other
unidentified member of his unit. The lack of proof establishing that this command
was anything but a routine administrative process automatically triggered by
appellant’s prior misconduct renders Specification 1 of Charge I legally defective.

       In spite of the deficiencies in appellant’s guilty plea to willful disobedience,
the facts elicited and colloquy between he and the military judge are more than
enough to sustain a conviction for the lesser included offense of Article 92 (2),
UCMJ, “failure to obey other lawful order[s].” See Article 79, UCMJ; Byers, 40
M.J. at 324; MCM, pt. IV, ¶ 14.d(3)(a); and United States v. Augustine, 53 M.J. 95
(C.A.A.F. 2000). Consequently, we will provide appropriate relief in our decretal
paragraph.

                                    CONCLUSION

       The finding of guilty to Specification 1 of Charge I is set aside. However, we
affirm a finding of guilty to the lesser included offense of failure to obey an order in
violation of Article 92(2), UCMJ. The remaining findings of guilty are AFFIRMED.
In reassessing the sentence on the basis 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—we are
convinced appellant would have received a sentence on the remaining convictions of
no less than that approved by the convening authority. After reassessing the
sentence and the entire record, 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 our decision, are ordere d restored. See Article 75(a), UCMJ.

      Senior Judge COOK and Judge CAMPANELLA concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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