                            UNITED STATES, Appellee

                                           v.

  Jaime J. PINERO, Cryptologic Technician Administrative Second
                               Class
                       U.S. Navy, Appellant


                                     No. 03-0279
                           Crim. App. No. 200101373


       United States Court of Appeals for the Armed Forces

                            Argued October 8, 2003

                             Decided June 21, 2004

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.



                                        Counsel

For Appellant:      Captain James D. Valentine, USMC (argued).

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued);
Commander R. P. Taishoff, JAGC, USN (on brief); Colonel Rose M.
Favors, USMC, and Captain Glen R. Hines, USMC.




Military Judge: R. W. Redcliff



          THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Pinero, No. 03-0279/NA


     Judge BAKER delivered the opinion of the Court.

     In accordance with his pleas, Appellant was convicted by a

military judge at a special court-martial of unauthorized

absence terminated by apprehension and five specifications of

wrongful use of a controlled substance in violation of Articles

86 and 112a, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. §§ 886 and 912a (2000).   The adjudged and

approved sentence provided for a bad-conduct discharge,

confinement for 72 days, and reduction to pay grade E-1.     The

United States Navy-Marine Corps Court of Criminal Appeals

affirmed. United States v. Pinero, 58 M.J. 501 (N-M. Ct. Crim.

App. 2003)(en banc).    We granted review of the following

question:

     WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY
     ACCEPTING APPELLANT’S GUILTY PLEA TO AN UNAUTHORIZED
     ABSENCE IN EXCESS OF THIRTY DAYS WHEN APPELLANT WAS SUBJECT
     TO MILITARY CONTROL AND CUSTODY DURING A PORTION OF THE
     CHARGED PERIOD.

     Appellant was charged with and pleaded guilty to a 53-day

period of unauthorized absence.    However, Appellant testified,

and the military judge concluded, that he returned to military

control and authority at some point during this period of

unauthorized absence before initiating a second period of

unauthorized absence.    As a result, the record of trial

demonstrates a substantial basis in law and fact to question

Appellant’s plea to a 53-day period of unauthorized absence.


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Although the legal error committed by the military judge in this

case may not have prejudiced Appellant on sentencing in light of

his other convictions, our recent decision in United States v.

Jenkins, ___ M.J. ___ (C.A.A.F. 2004), requires that we remand

to allow the Court of Criminal Appeals to complete its review

pursuant to Article 66, UCMJ 10 U.S.C. § 866 (2000), consistent

with this opinion and with Jenkins.

                              BACKGROUND

     Appellant entered a guilty plea to a period of unauthorized

absence from his unit, Naval Security Group Activity, Kunia,

Hawaii, that began on October 23, 2000, and was terminated by

apprehension on December 15, 2000.        During the providence

inquiry, Appellant stated that at some time in mid-November and

prior to Thanksgiving, a petty officer second class (E-5) from

his command came to his off-base house and ordered him to

participate in a command-directed fitness-for-duty urinalysis

screening.   According to Appellant, he dressed in his uniform

and proceeded with the command representative to the Makalapa

Medical Clinic at Pearl Harbor and then returned home.       This

evolution took approximately five hours, and Appellant stated

that he did not thereby intend to terminate his absence.

Appellant did not report for duty the following day as directed

by the command representative.    By Appellant’s admission, his




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absence ended on December 15 when he was apprehended at his

house.

     Based on this record, the judge stated:

     It would appear that at least for a 5-hour period during
     the [unauthorized absence] period, Petty Officer Pinero was
     subject to military control and authority. He certainly
     complied with an order issued by his commanding officer to
     participate in a urinalysis and blood sample screening, and
     that would apparently . . . terminate the unauthorized
     absence at that point. And when he was ordered to report
     for duty the next day, that would appear to commence a
     second period of unauthorized absence, which was
     subsequently terminated by his apprehension on 15 December.

However, lacking a factual basis to determine the precise day on

which the first absence ended and the second began, the judge

found “as a matter in extenuation that during the period of

unauthorized absence, at least for 5 hours, Petty Officer Pinero

did subject himself to military custody and control and would

not, in fact, have been an unauthorized absentee for that

period.”

     The judge solicited counsels’ opinions on how to proceed

and whether the pretrial agreement remained undisturbed.    Trial

counsel adopted the judge’s suggestion that even if the precise

date of the urinalysis was not determined, the agreement was

still binding because “[i]t’s certainly proper for the court to

find two short periods of [unauthorized absence] encompassed in

a single extensive period.”    The military judge further




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suggested that “even though there’s [sic] two periods, he’s

still, I think, technically UA during every day of that period.”

     The court recessed to explore the significance of the five-

hour period.    Counsel were unable to fix the date of the

urinalysis or otherwise confirm Appellant’s presence at the

clinic in November.   Ultimately, trial defense counsel adopted

the military judge’s theory that the charged period was

appropriate and stated that “[w]e want to stick with the deal

and ask you to consider whatever extenuation the providence

inquiry may have elicited.”

     In affirming, the Court of Criminal Appeals concluded that

the five-hour period was “a de minimis interruption of the

alleged [unauthorized absence].”       58 M.J. at 503.   The court

further concluded that Appellant waived the defense of early

termination since he lacked the intent to terminate his

unauthorized absence, and that there was no material prejudice

to Appellant’s substantial rights because “Appellant was not

misled as to the charge, and no unfairness resulted as the

variance did not increase his punitive exposure.”        Id. at 504.

     The Government’s Answer before the lower court contained 59

lines of legal analysis.    The CCA’s en banc opinion replicates

48 of those lines verbatim or with modest grammatical or

citation edits.   Another six lines appear with more substantial

modification.   This material appeared in 8 of the CCA’s 13


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paragraphs of legal analysis.    But the lower court’s conclusions

regarding waiver of available defenses and whether a de minimis

absence was consistent with this Court’s holding in United

States v. Francis, 15 M.J. 424, 429 (C.M.A. 1983), were not

based on the Government’s Answer.

                              DISCUSSION

     The military justice system takes particular care to test

the validity of guilty pleas because the facts and the law are

not tested in the crucible of the adversarial process.     Further,

there may be subtle pressures inherent to the military

environment that may influence the manner in which

servicemembers exercise (and waive) their rights.    The

providence inquiry and a judge’s explanation of possible

defenses are established procedures to ensure servicemembers

knowingly and voluntarily admit to all elements of a formal

criminal charge.   See, e.g., United States v. Care, 18 C.M.A.

535, 539, 40 C.M.R. 247, 251 (1969)(citing McCarthy v. United

States, 394 U.S. 459, 466 (1969)); United States v. Chancelor,

16 C.M.A. 297, 299, 36 C.M.R. 453, 455 (1966)(“Congress made

clear the nature of the safeguards which they intended to

surround the receiving of [guilty pleas].”).   These procedures

have also been incorporated into the Rules for Courts-Martial

[hereinafter R.C.M.] and the guides for courts-martial.    See

R.C.M. 910(e) and discussion; Manual for Courts-Martial, United


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States (2002 ed.) [hereinafter MCM], Guide for General and

Special Courts-Martial A8-1; MCM, Guide for Summary Courts-

Martial A9-1.

     We are cognizant that in guilty-plea cases the quantum of

proof is less than that required at a contested trial.     Before

accepting a plea, due process requires a military trial judge to

question the accused “to make clear the basis for a

determination by the military judge or president whether the

acts or the omissions of the accused constitute the offense or

offenses to which he is pleading guilty.”      Care, 18 C.M.A. at

541, 40 C.M.R. at 253.    See R.C.M. 910(e).    A plea of not guilty

must be entered where a “substantial indication of direct

conflict between the accused’s plea and his following

statements” arises.   United States v. Logan, 22 C.M.A. 349, 351,

47 C.M.R. 1, 3 (1973).    Within this framework, guilty pleas are

rejected on appellate review only when the record of trial shows

a substantial basis in law and fact for questioning the plea.

United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002); United

States v. Prater, 32 M.J. 433 (C.M.A. 1991).

     “Where an accused’s responses during the providence inquiry

suggest a possible defense to the offense charged, the trial

judge is well advised to clearly and concisely explain the

elements of the defense in addition to securing a factual basis

to assure that the defense is not available.”     United States v.


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Jemmings, 1 M.J. 414, 418 (C.M.A. 1976).        Also, “in a guilty

plea case, inconsistencies and apparent defenses must be

resolved by the military judge or the guilty pleas must be

rejected.”   United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.

1996)(citing Jemmings, 1 M.J. at 418; United States v. Dunbar,

20 C.M.A. 478, 43 C.M.R. 318 (1971)).

     In the context of Article 86, the elements of the offense

often include an aggravating factor of duration that bears on

the maximum authorized punishment.        Appellant was charged with a

53-day period of continuous unauthorized absence.       However,

Appellant’s statements regarding the interruption of his absence

created a substantial basis to question the providence of his

guilty plea because termination in this case is a defense to an

absence exceeding 30 days.    The military judge seemed to

recognize as much when he concluded that a second period of

unauthorized absence commenced following the command-directed

urinalysis screening.    Termination was not merely a “possible”

defense here — the judge secured a factual basis establishing

that Appellant was, for a five-hour period, not guilty of

unauthorized absence.    For these reasons, we hold that there was

a substantial basis in law and fact to question Appellant’s

guilty plea to a 53-day unauthorized absence.

     Having found that Appellant was under military control and

custody and not absent on a date in November, it was incumbent


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upon the military judge to resolve any conflicting facts so the

correct duration could be determined and counsel could decide

how to proceed regarding the remainder of the charged period.

Notwithstanding Appellant’s return to military control, the

judge and counsel attempted to preserve the pretrial agreement

by finding a continuous 53-day absence based on the fact that

Appellant was not present for duty for the entire day of the

urinalysis.   However, the hours of departure and return were not

alleged, therefore, the unresolved termination date would have

counted as a day of duty.    MCM, Part IV, para. 10.(c).(9).

Therefore, as a matter of law, on this record, the date of the

urinalysis could not have sufficed as both the termination date

of the first period of absence and the inception date for any

subsequent period.   Thus, the military judge’s conclusion that

Appellant was “technically UA during every day of that period”

was erroneous.

     As important, even if Appellant’s absence had been charged

from a specific hour, Appellant’s unauthorized absence could not

have been continuous.    A military judge may find multiple

absences within a single charged period so long as the maximum

authorized punishment does not exceed that for the longer

period.   Francis, 15 M.J. at 429.    Under Francis there must be a

factual basis to support the inception date of a second absence

where that date is essential to calculating the legal


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punishments for Article 86 violations.    That is, without an

inception date it is impossible to know whether duration is an

aggravating factor.

     A factual interruption in a continuous period of

unauthorized absence cannot be overlooked by a court where such

interruption changes the qualitative nature of the offense and

the punitive exposure.    Moreover, whether there is incentive to

do so or not, a servicemember cannot plead guilty to an offense

he did not commit, in this case 53 days of continuous

unauthorized absence.    United States v. Schwabauer, 37 M.J. 338

(C.M.A. 1993); United States v. Lewis, 18 C.M.A. 287, 289, 39

C.M.R. 287, 289 (1969)(An accused may not “abandon evidence of a

defense in favor of possible advantages derived from a guilty

plea.”).   Acceptance of Appellant’s plea in this case may prove

to be harmless, but it was still error to accept the plea and we

should not conflate that which is harmless with that which is de

minimis in our analysis.

     The record of trial establishes sufficient facts to affirm

Appellant’s conviction for an unauthorized absence of some

lesser period.   United States v. Harris, 21 C.M.A. 590, 593-94,

45 C.M.R. 364, 367-68 (1972).    Notwithstanding counsels’

inability to establish the early termination date, such a date

may be established by facts elicited during Appellant’s plea

inquiry.   United States v. Simmons, 3 M.J. 398 (C.M.A. 1977).


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There is a factual basis on this record to support a nine-day

absence beginning October 23 and terminating on November 1, the

earliest date Appellant could have terminated his absence based

on the plea colloquy.    The failure of the military judge to

conclusively establish the date on which Appellant was under

military control at the clinic leaves the inception date for any

additional unauthorized absence period unresolved.     Thus, the

current state of the record does not support a conviction for an

absence extending beyond November 1.      See, e.g., Harris, 21

C.M.A. at 593, 45 C.M.R. at 367 (“Proof of a date of inception

obviously is indispensable to a successful prosecution for

unauthorized absence if a conviction is to be had for an

unauthorized absence which exceeds one day, the proven date of

return.”).   Therefore, the military judge’s acceptance of the

plea and his subsequent finding of guilty were error.

     Regarding prejudice, in his brief to this Court Appellant

argues that “the maximum punishment for an unauthorized absence

in excess of thirty days is dramatically more significant than

even twice the maximum punishment for an absence of less than 30

days.”   He also argues that a punitive discharge is not an

authorized punishment for an unauthorized absence not exceeding

30 days.   Moreover, termination by apprehension is only relevant

in aggravation for unauthorized absence over 30 days.     While we

agree with Appellant that these are indeed accurate statements


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of the law, the argument ignores the fact that Appellant was

tried at a special court-martial.      Even without the absence

offense, the aggregation of the other offenses to which

Appellant pleaded guilty exposed Appellant to the jurisdictional

maximum of a special court-martial.1

                               DECISION

     In light of our conclusions above, the decision of the

United States Navy-Marine Corps Court of Criminal Appeals is set

aside.   As review is not yet complete in accordance with our

decision in United States v. Jenkins, ___ M.J. ___ (C.A.A.F.

2004),2 the record of trial is returned to the Judge Advocate

General of the Navy for remand to the Court of Criminal Appeals

for review consistent with this opinion.     Thereafter, Article

67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.




1
  At the time of Appellant’s trial Rule for Courts-Martial
201(f)(2)(B) authorized a special court-martial to adjudge no
more than a bad-conduct discharge, confinement for six months,
and forfeitures of two-thirds pay per month for six months.
2
  Although not assigned or specified as an issue, we note that
the lower court's opinion in this case contains substantial
replication from the Government's brief.


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