UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            SIMS, COOK, and GALLAGHER
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class BRYAN K. JONES
                          United States Army, Appellant

                                   ARMY 20090983

                             Headquarters, Fort Drum
                          Andrew J. Glass, Military Judge
                  Colonel Michael O. Lacey, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura A. Kesler, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Major Ellen S. Jennings, JA; Captain Stephen E. Latino, JA (on brief).

                                  20 December 2011

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his plea, of one specification of wrongful use of marijuana, in violation
of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter
UCMJ]. Contrary to his pleas, the military judge found appellant guilty of one
specification of absence without leave, and one specification of disrespect in
language toward a noncommissioned officer, in violation of Articles 86 and 91,
UCMJ, 10 U.S.C. §§ 886 and 891. * Appellant was sentenced to a bad-conduct
discharge, confinement for five months, and reduction to the grade of Private E1.
The convening authority approved the adjudged sentence and credited appellant with
sixteen days of confinement against the sentence to confinement. This case is before
us for review pursuant to Article 66, UCMJ.



*
 Appellant was found not guilty, in accordance with his plea, of one specification
alleging wrongful disposal of military property in violation of Article 108, UCMJ.
JONES—ARMY 20090983

       Appellant was originally charged with wrongfully using marijuana “at or near
Fort Drum, New York,” in violation of Article 112a, UCMJ. At his court-martial,
appellant pled guilty to the offense, “except the words, ‘Fort Drum, New York,’
substituting therefore the words, ‘Denton, Texas.’” Appellant pled not guilty to the
excepted words and guilty to the substituted words.

       During his Care inquiry (United States v. Care, 18 U.S.C.M.A. 535, 538-39,
40 C.M.R. 247, 250-51 (1969)), the military judge elicited sufficient information
from appellant to provide a factual predicate for appellant’s plea to wrongful use of
marijuana in Denton, Texas. The military judge advised appellant of the elements
citing the location as Denton, Texas, and found him provident as pled. The
government did not produce evidence in an attempt to prove the excepted language
of Charge IV and its specification. When the military judge announced findings,
however, he stated the location of the wrongful use as Pana, Illinois.

       We conclude the military judge misspoke in announcing the location of the
offense. This conclusion is consistent with appellant’s pleas and his statements
during a thorough providence inquiry that he understood all the elements of this
particular offense and described how he committed the offense. Thus, there can be
no doubt appellant committed the charged offense with the substituted language to
which he pled guilty. It is also clear the military judge intended to find appellant
guilty in accordance with his pleas as he found the accused provident and accepted
his pleas. The announcement of the military judge, under the circumstances of this
case, is sufficient to intelligently discern the basis for the findings and is adequate to
bar a subsequent prosecution for the same offense. Under these facts, we find no
error materially prejudicial to a substantial right of appellant. See UCMJ art. 59(a),
10 U.S.C. § 859.

       Upon consideration of the entire record, the submissions of the parties,
including the matter personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), the court affirms only so much of the finding
of guilty of Charge IV and its Specification as finds appellant did, at or near Denton,
Texas, between on or about 8 April 2009 and on or about 7 May 2009, wrongfully
use Marijuana, a Schedule I controlled substance, in violation of Article 112a,
UCMJ. Reassessing the sentence on the basis of the error noted, the entire record,
and in accordance with the principles 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, the court affirms the
remaining findings of guilty and the sentence.




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JONES—ARMY 20090983
                           FOR THE COURT:
                          FOR THE COURT:



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




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