UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                      Specialist ZACHARY B. ROBERTSON
                          United States Army, Appellant

                                   ARMY 20100124

                           Headquarters, Fort Stewart
                         Tara A. Osborn, Military Judge
       Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (pretrial &
                                recommendation)
          Colonel Jonathan C. Guden, Staff Judge Advocate (addendum)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Captain Barbara Snow-Martone, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA;
Major Thomas E. Brzozowski, JA (on brief).


                                  28 December 2012

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

ALDYKIEWICZ, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of negligent homicide in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for sixteen months, and reduction to the grade of E-1. The automatic
forfeiture of all pay and allowances required by Article 58b, UCMJ, was waived at
action for a period of three months for the benefit of appellant’s dependents.

       This case is before us for review under Article 66, UCMJ. We have
considered the record of trial, the assignment of error raised by appellant, and the
matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). Appellant alleges the military judge abused her discretion
in accepting appellant’s plea to negligent homicide when the offense is not a lesser
ROBERTSON—ARMY 20100124
 
included offense (LIO) of involuntary manslaughter and the charge was not
“formally referred.”

       On 5 August 2009, appellant was charged with false official statement,
damaging military property through neglect, and involuntary manslaughter,
violations of Articles 107, 108, and 119, UCMJ. All charges stem from the tragic
death of SSG M when the Pontiac G-6 he was driving collided, head on, with the up
armored High Mobility Multipurpose Wheeled Vehicle (HMMWV) operated by
appellant.

       On 28 October 2009 appellant’s charges were referred to a general court-
martial. On 17 November 2009, appellant was arraigned on the referred charges.
On 27 January 2010, the convening authority accepted appellant’s 19 January 2010
offer to plead guilty whereby appellant offered to plead guilty to negligent homicide,
“the Lesser Included Offense [(LIO) of involuntary manslaughter].” In exchange:
the government would not prove up the false official statement charge, the damaging
military property through neglect charge, or the greater involuntary manslaughter
charge; the convening authority would disapprove any confinement in excess of
twenty-four months; and the convening authority would disapprove any adjudged
dishonorable discharge, substituting therefor a bad-conduct discharge. On 17
February 2010, appellant pleaded guilty to negligent homicide consistent with his
offer to plead guilty. After a thorough, complete, and fully developed providence
inquiry, covering the elements and all appropriate definitions related to negligent
homicide to include the terminal elements for both a Clause 1 and Clause 2, Article
134, UCMJ offense, 1 the court entered a finding of guilty to the LIO of negligent
homicide.

       On 19 April 2010, our superior court decided United States v. Jones, 68 M.J.
465 (C.A.A.F. 2010), “return[ing] to the elements test” to determine if offenses
stand in a greater-lesser relationship. Jones, 68 M.J. at 468 (indecent acts not an
LIO of rape where the greater offense does not include all elements of the lesser);
see also, United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (negligent homicide
not an LIO of premeditated murder as the former requires a finding of prejudice to
good order and discipline or service discrediting conduct, elements not found in
premeditated murder).

       Applying a strict elemental analysis, appellant is correct—negligent homicide
is not an LIO of involuntary manslaughter. Appellant’s reliance, however, on Jones
and Girouard, in support of his requested relief that this court set aside his
conviction is misplaced. Unlike the accuseds in Jones and Girouard, both contested
                                                            
1
 The terminal elements of all charges brought under Clauses 1 or 2 of Article 134,
UCMJ, require proof that the conduct at issue was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the armed
forces.
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ROBERTSON—ARMY 20100124
 
courts-martial, appellant pleaded guilty pursuant to an offer to plead guilty that he
submitted to the convening authority. Once acted on, the convening authority
constructively referred the negligent homicide charge, placing that offense within
the jurisdiction and purview of the court like any other properly referred offense.
See United States v. Wilkins, 29 M.J. 421 (C.M.A. 1990) (entry into plea agreement
where accused agreed to plead guilty to receiving stolen property, a non-LIO of the
charged offense of larceny, resulted in functional equivalent of a referral). See also
United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (plea agreement accepting plea
to indecent act with a child in violation of Article 134, UCMJ, a non-LIO to the
charged offense of rape of a child in violation of Article 120, UCMJ, is functional
equivalent of a referral); United States v. Nealy, 71 M.J. 73 (C.A.A.F. 2012) (entry
into plea agreement where accused pleads guilty to provoking speech in violation of
Article 117, UCMJ, a non-LIO of communicating a threat in violation of Article 134,
UCMJ, where all parties to the agreement believed the offenses stood in a lesser-
greater relationship evidences convening authority’s intent to refer the Article 117,
UCMJ offense).

       Although the charge of negligent homicide was constructively referred,
appellant’s offer did not provide a modified specification to which he was pleading.
He simply offered to plead to what was believed to be, prior to Jones, an LIO of the
charged involuntary manslaughter offense. As such, appellant’s plea offer did not,
either expressly or by necessary implication, allege the terminal elements for a
clause 1 or clause 2, Article 134, UCMJ offense. Pursuant to United States v.
Fosler, 70 M.J. 225 (C.A.A.F.2011), and United States v. Ballan, 71 M.J. 28
(C.A.A.F.2012), failure to allege the terminal elements is error. However, error
alone is insufficient to establish prejudice to a substantial right.

       The stipulation of fact in appellant’s case states, “The accused specifically
admits that the death of SSG [M] was unlawful and as a Soldier on duty his actions
prejudice the good order and discipline of the armed forces.” During the providence
inquiry, the military judge properly advised appellant of the elements of negligent
homicide and provided the definitions of conduct prejudicial to good order and
discipline and service discrediting conduct, elements and definitions which appellant
acknowledged and stated he understood. Finally, during the plea colloquy with the
military judge, appellant stated he believed his actions were both prejudicial to good
order and discipline and service discrediting, specifically describing why he thought
both elements applied to his actions. On the facts of this case, there was no
prejudice to appellant’s substantial rights as a result of the failure to plead, either
expressly or by necessary implication, the terminal elements. See Ballan, 71 M.J. at
35–36; Nealy, 71 M.J. at 77–78.

                                   CONCLUSION

      On consideration of the entire record and the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M .J. 431 (C.M.A. 1982), the

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ROBERTSON—ARMY 20100124
 
finding of guilty and the sentence as approved by the convening authority are
AFFIRMED.

      Senior Judge KERN and Judge MARTIN concur.


                                      FOR THE COURT: 
                                       FOR THE COURT:



                                      JOANNE P. TETREAULT ELDRIDGE
                                      Deputy Clerk of Court
                                       JOANNE P. TETREAULT E




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