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

                              UNITED STATES, Appellee
                                          v.
                        Staff Sergeant RICHARD A. BOURNE
                            United States Army, Appellant

                                      ARMY 20120481

                              Headquarters, Fort Drum
                        Elizabeth G. Kubala, Military Judge
                   Colonel Michael O. Lacey, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Jacob D.
Bashore, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).


                                     19 December 2013

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                                  MEMORANDUM OPINION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 conspiracy to commit obstruction of justice, absence
without leave, violating a lawful general order (two specifications), making a false
official statement, wrongful sexual contact, aggravated assault with force likely to
produce death or grievous bodily harm, adultery, and wrongfully communicating a
threat, in violation of Articles 81, 86, 92, 107, 120, 128 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 886, 892, 907, 920, 928 and 934 (2006 & Supp.
III 2010) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for 30 months, and reduction to the grade of E-1.
The convening authority approved the sentence as adjudged .

      This case is before us for review pursuant to Article 66, UCMJ. Appe llate
defense counsel raises one assignment of error alleging that the military judge
abused her discretion by accepting appellant’s plea of guilty to making a false
BOURNE — ARMY 20120481

official statement in violation of Article 107, UCMJ. We agree. We further find one
additional matter that warrants discussion and relief. Based on both errors, we grant
relief in our decretal paragraph. We find those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) to be
without merit.

                                  BACKGROUND

       On approximately 5 December 2010, appellant and his friend, Specialist
(SPC) MM, were drinking at a bar in Watertown, New York. Specialist MM and a
female at the bar, SPC NL, began to show romantic interest in one another. SPC NL
and SPC MM danced, kissed and exchanged phone numbers. Specialist NL became
extremely intoxicated over the course of the night and was driven home by other
friends accompanying her. After the bar closed, SPC MM and appellant telephoned
SPC NL at her home and invited her to an after-hours party that evening. SPC NL
agreed and appellant and SPC MM drove to her home to take her to the party. After
picking up SPC NL at her home, the three began to drive to the party. During the
drive, SPC MM and SPC NL ended up in the backseat and engaged in kissing,
touching and fondling each other.

        Instead of going to a party, appellant drove to his house. Once at appellant’s
house, SPC MM and SPC NL continued to kiss and fondle each other on appellant’s
couch while appellant sat on a nearby couch and watched them. Specialist MM then
left the room to use the bathroom, leaving SPC NL on the couch with her pants
unbuttoned. While SPC MM was out of the room, appellant removed SPC NL’s
pants and inserted his penis inside SPC NL’s vagina. Specialist MM returned to see
appellant having vaginal sex with SPC NL. While still having sex with SPC NL,
appellant suggested to SPC NL that she perform oral sex on SPC MM. Appellant
then asked SPC NL if she wanted to continue having sex with him (appellant), and
SPC NL replied “no, you belong to Jeanise” (a friend of SPC NL’s whom appellant
had been dating). Appellant then withdrew his penis from SPC NL’s vagina and left
the room. Specialist MM and SPC NL then proceeded to have sex.

      Both the plea inquiry and the stipulation of fact establish beyond any
reasonable doubt that SPC NL did not consent to having sex with appellant.

                        False Official Statement, Art 107, UCMJ

       After SPC NL reported the sexual assault, the l ocal Watertown Police
Department opened a criminal investigation into the matter. The Watertown Police
subsequently brought appellant and SPC MM in for questioning as suspects.
Appellant had previously conspired with SPC MM to provide a false statement to the
police when questioned about the incident. During questioning by Watertown
Police, appellant lied and stated he had not had any contact with SPC MM since the



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5th of December, and that he (appellant) had not touched SPC NL in any way on the
night in question.

       During the providence inquiry into appellant’s plea of guilty to making a false
official statement, the military judge advised appellant of the elements of the offense
pursuant to Article 107, UCMJ. The military judge, however, did not define
“official statement” and failed to conduct an inquiry with appellant as to whether his
statement to the Watertown Police detective was “official” within the meaning of
Article 107, UCMJ.

       During the colloquy regarding the false official statement charge , when asked
by the military judge if he was guilty of this offense, appellant responded:

             [Specialist MM] and I agreed to provide false information
             to the Watertown Police Department when questioned
             about the incident. We specifically agreed to minimize or
             deny any sexual contact with SPC [NL] on 5 December
             2010. I was interviewed by Detective [D] of the
             Watertown PD on or about 9 December 2010. When
             interviewed, I told her essentially that I hadn’t had any
             contact with SPC [MM] since 5 December and that I
             hadn’t touched SPC [NL] in any way on 5 December.

      The military judge conducted no further inquiry into this offense.

       The stipulation of fact in this case is equally lacking as it relates to the
“official” nature of the statement as required by Article 107, UCMJ, stating simply
that the appellant’s statement to law enforcement “was an official statement.”

       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 of guilty for an abuse of discretion by
determining whether the record as a whole demonstrates a substantial basis in law or
fact for questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-
Martial [hereinafter R.C.M.] 910(e).

       In United States v. Spicer, the Court of Appeals for the Armed Forces (CAAF)
found that an accused’s statement to a civilian police officer may be “official” for
Article 107, UCMJ purposes, when the statement is made “‘in the line of duty,’ or to
civilian law enforcement officials if the statement bears a ‘clear and direct
relationship’ to the [accused's] official duties.” 71 M.J. 470, 474 (C.A.A.F. 2013);
See also United States v. Teffeau, 58 M.J. 62, 69 (C.A.A.F. 2003). Similarly, our
superior court explained that a statement may be “official” for such purposes if “the


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hearer is a military member ‘carrying out a military duty at the time the statement is
made,’” or when the person to whom the statement is made “is a civilian who is
performing a military function at the time the speaker makes the statement.” Spicer,
71 M.J. at 474-75 (citation and internal quotation marks omitted).

       In this case, appellant’s providence inquiry does not establish that the civilian
Watertown Police to whom he made his statement were “acting on behalf of military
authorities or . . . in any other way performing a military function,” making an
otherwise unofficial statement “official” for purposes of Article 107, UCMJ. United
States v. Capel, 71 M.J. 485, 487 (C.A.A.F. 2013). In its response to appellant’s
assignment of error, appellate government counsel concedes that the record is
“bereft” of any specific evidence to establish the “official” element of false official
statement. We accept the government’s concession.

       In light of Spicer, we find a substantial basis in law and fact to question
appellant’s guilty plea to false official statement in violation of Article 107, UCMJ .
As such, we find the military judge abused her discretion in accepting appellant’s
guilty plea to Charge V and its Specification and shall therefore set aside the guilty
findings of Charge V and its Specification, and dismiss same.

             Violation of a Lawful General Regulation, Article 92, UCMJ

       During the providence inquiry into appellant’s plea of guilty to the
Specification of Charge III, the military judge advised appellant of the elements of
Article 92, UCMJ, violating a lawful regulation—specifically, Army Regulation 600-
20, Army Command Policy [hereinafter AR 600 -20] para. 4-14(b), (18 Mar. 2008)
(Update 20 Sept. 2012). The military judge read paragraph 4-14(b):

             Relationships between soldiers of different rank are
             prohibited if they [1] appear to compromise the integrity
             of the supervisory authority or chain of command, [2]
             cause actual or perceived partiality or unfairness, [3]
             involve or appear to involve improper use of rank or
             position for personal gain, [4] are or are perceived to be
             exploitive or coercive in nature, [5] create an actual or
             predictable adverse impact on discipline, authority,
             morale, or the ability of the command to accomplish the
             mission.

       The military judge then established the incident referred to in Charge III was
the sexual intercourse that occurred on 5 December 2010 between appellant and SPC
NL. Next, she asked appellant why he was guilty of the offense. Appellant stated:

             I had sex with SPC NL on 5 December 2010. I was and
             am currently a staff sergeant and SPC NL was an E-4.


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             The customs of the service and Army Regulation 600 -20
             prohibit me from having this type of relationship with a
             junior Soldier, but I did it anyway. I knew what my
             obligations were as a non-commissioned officer and by
             engaging in this conduct, I violated them; I am guilty of
             this offense.

      In response to the military judge’s further questioning, appellant stated he and
SPC NL were in the same battalion, but he did not see SPC NL at work because they
were in different companies. Appellant specifically denied having any supervisory
responsibility over SPC NL. The military judge then repeated the elements of the
offense, eliciting “yes, ma’am” from appellant after each element was recited.

        We find the plea inquiry also falls short on this charge. It is not enough to
elicit legal conclusions. The military judge must also elicit the necessary facts to
support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F.
1996). The record of trial must reflect not only that the elements of each offense
have been explained to the accused, but also “make clear the basis for a
determination by the military trial judge . . . whether the acts or the omissions of the
accused constitute the offense . . . to which he is pleading guilty.” United States v.
Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). “The fundamental
requirement of a guilty plea inquiry under Care and R.C.M. 910 involves a dialogue
between the military judge and the accused, in which the military judge poses
questions about the nature of the offense and the accused provides answers and
explanations that describe his personal understanding of the criminality of his or her
conduct.” United States v. Medina, 72 M.J. 148, 149 (C.A.A.F. 2013) (quoting
United States v. Hartman, 69 M.J. 467, 469 (C.A.A.F. 2011)).

       Here, appellant did not articulate which provision of AR 600-20, para.
4-14(b) he believed he violated. His statements to the military judge do not
establish “supervisory” authority for purposes of paragraph 4-14(b)(1) given that he
explained he had no supervisory responsibility over SPC NL and does not even see
her at work. Further, AR 600-20, para. 4-14(b) does not strictly forbid relationships
between lower enlisted soldiers and noncommissioned officers. It only forbids those
relationships that fit into the categories listed in the regulation. Appellant’s
assertion that “the customs of the service” prohibit him from having sex with a
junior enlisted soldier is simply unfounded without further elucidation. As such, we
find the inquiry inadequate to provide a factual predicate to the charge. See Outhier,
45 M.J. at 331.

       To assist in our review of the adequacy of the plea, we next analyze the
stipulation of fact. The stipulation in this case provides another recitation of AR
600-20, para. 14-4(b). It adds, however, the following:




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BOURNE — ARMY 20120481

                    On 5 December 2010, the accused violated this
             lawful regulation by wrongfully having a prohibited
             relationship with [SPC NL], by having sexual intercourse
             with the said [SPC]. The intercourse occurred in the
             presence of another junior enlisted Soldier . . .
             [Appellant’s] behavior with [SPC NL] appeared to
             compromise the integrity of the supervisory authority.
             Moreover, his behavior involved or appeared to involve
             the improper use of rank or position for personal gain.

       Again, the stipulation of fact merely restates the prongs of paragraph 4-14(b),
and does little to establish the factual tie-in with this case. This court will not
speculate as to the ways appellant’s behavior could have fit into the categories
outlined in the regulation.

      Reviewing the military judge's acceptance of appellant’s guilty plea for an
abuse of discretion, we find the minimal facts elicited here raise a substantial
question regarding the appellant's guilty plea to the Specification of Charge III.
Inabinette, 66 M.J. at 322.

       In light of the limited providence inquiry and the brief and vague stipulation
of fact, we find a substantial basis in law and fact to question appellant’s guilty plea
to Charge III, violating a lawful regulation , under Article 92, UCMJ. * As such, we
find the military judge abused her discretion in accepting appellant’s guilty plea to
Charge III and its Specification.

                                    CONCLUSION

       Upon consideration of the entire record and the submissions by the parties,
the findings of guilty of Charge III and its Specification and Charge V and its
Specification are set aside and those charges and specifications are DISMISSED.
The remaining findings of guilty are AFFIRMED.

       Based on the foregoing, we are able to reassess the sentence on the basis of
the error noted, and do so in accordance with the principles articulated in United
States v. Winckelmann,       M.J.   , slip. op. at 12-13 (C.A.A.F. 18 Dec. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We note appellant pleaded
guilty in a judge alone court-martial. We find the nature of the remaining offenses
captures the gravamen of the original charges and the aggravating circumstances

*We juxtapose this deficient factual basis with the inquiry cond ucted and stipulation
of fact regarding Additional Charge I and its S pecification, a violation of Article 92,
UCMJ, for violating AR 600-20, paragraph 4-14(b). Additional Charge I and its
Specification withstands legal and factual scrutiny as the supervisory relationship
between appellant and the respective lower -enlisted soldier was clearly established.

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surrounding his course of conduct. We also find no dramatic change in the penalty
landscape or exposure which might cause us pause to reassess. Based on our
analysis, we approve only so much of the sentence that includes a bad-conduct
discharge, confinement for twenty-eight months and a reduction to E-1. We find this
sentence not only purges the error in accordance with Sales and Winckelmann, but is
also appropriate under Article 66(c), UCMJ.

       All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the findings and sentence set aside by this decision are
ordered restored.

      Senior Judge COOK and Judge HAIGHT concur.




                                                    FOR THE COURT:




                                                    MALCOLM H. SQUIRES, JR.

                                                    Clerk of Court




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