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

                                UNITED STATES, Appellee
                                             v.
                              Private E1 TRAVIS W. BARNES
                               United States Army, Appellant

                                        ARMY 20130529

             Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                            Paul R. Almanza, Military Judge
                Lieutenant Colonel Mark Seitsinger, Staff Judge Advocate

For Appellant: Major Vincent T. Schuler, JA; Captain Brian J. Sullivan (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief)

                                          21 March 2014

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

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.


CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of disobeying a lawful order, three specifications possessing
methamphetamine, five specifications of using methamphetamine, one specification
of larceny, and one specification of carrying a concealed weapon, in violation of
Articles 90, 112a, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
890, 912a, 921, and 934 (2006) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge and confinement for
twenty-one months. 

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and personally raised matters pursuant to
Unites States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issues raised by
appellant without merit. We find one additional issue, however, warrants di scussion
and relief.


    Appellant was credited with 95 days against his sentence to confinement.
BARNES — ARMY 20130529

                                  BACKGROUND

       On 7 May 2012, appellant was involved in a minor traffic stop while riding in
a vehicle in Cleveland County, Oklahoma. Pursuant to a lawful search of the
vehicle, police found a handgun and 26 grams of methamphetamine under the
passenger front seat where the accused was sitting. Appellant admitted to not
possessing a permit to carry a concealed weapon and to placing the weapon under
the seat to conceal it.

      As a result, appellant was charged, inter alia, with unlawfully carrying a
concealed weapon, a violation of Article 134. The Specification of Additional
Charge I alleged:

             In that [appellant], U.S. Army, did, at or near Cleveland
             Country, Oklahoma, on or about 7 May 2012, unlawfully
             carry on or about his person a concealed weapon, to wit:
             a 9MM handgun without proper licensing, 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.

      Appellant pleaded guilty to this offense consistent with the pretrial agreement
and the military judge found him guilty.

       During the providence inquiry, the military judge listed the Article 134
elements of the Specification of Additional Charge I , including the terminal element
of “to the prejudice of good order and discipline in the armed forces” and was “of a
nature to bring discredit upon the armed forces.” The military judge then asked the
appellant to explain how his behavior met this element. The exchange was
conducted as follows:

             MJ: … do you believe and admit that your conduct was
             prejudicial to good order and discipline in the armed service
             or was of a nature to bring discredit upon the armed forces?

             ACC: Yes, your honor.

             MJ: …one or both?

             ACC: It would bring discredit to the military.

             MJ: Why…?

             ACC: Because I had no reason to be carrying the weapon.



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BARNES — ARMY 20130529

         MJ: And how would members of the public react if they
         knew that soldiers carried concealed weapons?

         ACC: Unfavorably.

         MJ: And why is that?

         ACC: Because you don’t need a weapon in the United - -you
         don’t to carry a weapon unless you’re a police officer.

         MJ: Now, do you believe carrying a concealed weapon
         is also prejudicial to good order and discipline?

         ACC: Yes.

         MJ: Why is that?

         ACC: Because it doesn’t show discipline that we have as Soldiers.

         MJ: Explain a little bit more why.

         ACC: As a Soldier you’re taught you don’t need to carry a gun
         in the United States. You don’t need to protect yourself with a
         firearm here.

         MJ: Now, what might be a harmful consequence of somebody
         carrying a concealed weapon in the manner you did?

         ACC: They could get shot.

         MJ: Okay.

         ACC: Or death.

         MJ: How could that happen?

         ACC: Because if someone else thinks that you’re reaching for a
         gun they could take that as hostile and then shoot you if they were
         carrying a weapon.

         ...

         MJ: And do you admit that under the circumstances your conduct
         was prejudicial to good order and discipline in the armed forces or was
         of a nature to bring discredit upon the armed forces ?


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BARNES — ARMY 20130529


             ACC: Yes, your honor.

                                 LAW AND DISCUSSION

                                  Terminal Element

        “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 for
questioning the guilty plea. Id. at 322.

       In order to find appellant's conduct was prejudicial to good order and
discipline, however, the plea inquiry must establish facts demonstrating that
appellant's conduct caused “direct and palpa ble” prejudice to good order and
discipline. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶
60.c.(2)(a). See generally United States v. Erickson, 61 M.J. 230, 231-32 (C.A.A.F.
2005). To be service discrediting, appellant's conduct must “tend to bring the
service into disrepute if it were known.” United States v. Phillips, 70 M.J. 161, 166
(C.A.A.F. 2011).

       In this case, the military judge did not elicit an adequate factual basis duri ng
the colloquy with appellant to support his plea that his conduct was either
prejudicial to good order and discipline or service discrediting. N or does the
stipulation of fact satisfy the providency requirement for either clause of the
terminal element. See United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247
(C.M.A.1969). Consequently, on the record before us, we find a substantial basis in
fact to question appellant's plea to this offense.

                                    CONCLUSION

       On our consideration of the entire record and the assigned error, the findings
of the Additional Charge I and its Specification are set aside and dismissed.

       We AFFIRM the remaining findings of guilty.

       We are able to reassess the sentence on the basis of the error noted, and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986).



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BARNES — ARMY 20130529

      In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or appellant’s punitive exposure which might cause us pause in
reassessing appellant’s sentence. Second, appellant pleaded guilty in a judge -alone
court-martial. Third, we find the nature of the remaining offense still captures the
gravamen of the original offenses, and the circumstances surrounding appellant’s
conduct remain admissible and relevant to the remaining offense s. Finally, based on
our experience, we are familiar with the remaining offense s so that we may reliably
determine what sentence would have been imposed at trial.

       Reassessing the sentence based on the noted error, the remaining findings of
guilty, and the entire record, including the matters presented by appellant pursuant
to Grostefon, we AFFIRM only so much of the sentence as extends to confinement
for twenty months and a bad conduct discharge. We find this reassessed sentence is
not only purged of any error but is also appropriate. 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 ordered restored. See UCMJ arts. 58b(c) and
75(a).

      Senior Judge COOK and Judge HAIGHT concur.


                                       FOR THE COURT:




                                     ANTHONY
                                       ANTHONY   O. POTTINGER
                                                       O. POTTINGER
                                     Chief
                                       Chief Clerk of Court
                                           Deputy




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