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

                            UNITED STATES, Appellee
                                         v.
                         Staff Sergeant BOBBY R. RIFFLE
                           United States Army, Appellant

                                    ARMY 20130653

                             Headquarters, Fort Bliss
                       Timothy P. Hayes, Jr., Military Judge
                Colonel Edward K. Lawson IV, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on brief); Colonel
Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Patrick J. Scudieri, JA (on
reply brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major John K. Choike, JA; Captain Jaclyn E. Shea, JA (on brief).


                                   25 November 2014

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


Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of four specifications of maltreatment, nine specifications of
assault consummated by battery, and one specification of communicating indecent
language, in violation of Articles 93, 128, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 893, 928, and 934 [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for nine months, and
reduction to the grade of E-1. The convening authority, pursuant to a pretrial
agreement, approved only six months of confinement, but otherwise approved the
adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error concerning dilatory post-trial processing that merits
neither discussion nor relief. Appellant personally raises several matters pursuant to
RIFFLE—ARMY 20130653

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) that are also without merit.
However, one additional issue concerning the maltreatment charge and its
specifications warrants discussion and relief.

                                  BACKGROUND

       The majority of the assaults to which appellant pleaded guilty 1 involved
appellant’s repeated offensive touching of numerous junior soldiers’ groins and
nipples before, during, and after physical training formations. Appellant also
pleaded guilty to separate assaults committed against junior soldiers when he
offensively touched one soldier’s groin area, slapped another soldier in the face, and
kissed yet another soldier on the cheek. Appellant’s conviction for communicating
indecent language involved appellant essentially asking a junior soldier whether
appellant could perform anal sodomy on him. The military judge, during the
providence inquiry, correctly listed the elements of each of these offenses, and
during the colloquy with appellant, he elicited a sufficient factual basis to support
finding appellant guilty of these offenses.

       The maltreatment charge and specifications, however, present us with a
different scenario. In four separate specifications, appellant was charged with four
incidents alleging maltreatment by: (1) making a junior soldier perform “45-50 push-
ups within 30 minutes of giving blood;” (2) making a junior soldier “do the duck
walk, rising stars, and the dying cockroach;” (3) making a junior soldier “low crawl
for more than twenty minutes to pick up trash;” and (4) making a junior soldier
repeatedly retrieve a rock.

       During the providence inquiry, the military judge’s colloquy with appellant
established the following factual basis for each respective maltreatment
specification: (1) appellant ordered a soldier to perform push-ups in response to a
deficiency but was not aware the soldier had recently donated blood, and appellant
stopped the soldier from doing push-ups once he learned the soldier had recently
given blood; (2) appellant, in an effort to mirror some of the “exercises that we used
to do in the military,” had a soldier, for about ten minutes: walk “with bended knees
like a duck” while mimicking a duck-shooting arcade game; jump in the air,
extending both arms and legs and yell “I’m a rising star!” and; “lay[] on his back
and squirm[] around like a dying cockroach;” (3) appellant made a soldier pick up
trash by low crawling for more than twenty minutes on rocky and sandy ground
based on appellant’s reasonable belief, contrary to the soldier’s protestations, that

1
 Of the nine assault specifications to which appellant pleaded guilty, five were
originally charged as violations of Article 120, UCMJ, Abusive Sexual Contact.
Pursuant to a pretrial agreement, the government accepted appellant’s offer to plead
guilty to the lesser included offense of assault consummated by battery in violation
of Article 128, UCMJ.


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RIFFLE—ARMY 20130653

the soldier had littered the area with cigarette butts; and (4) appellant had the same
soldier retrieve rocks for about 10 minutes based on appellant’s perception that this
soldier had done a poor job low crawling.

                                    DISCUSSION

       A military judge’s acceptance of a guilty plea is reviewed for an “abuse of
discretion and questions of law arising from the guilty plea [are reviewed] de novo.”
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “The test for an
abuse of discretion is whether the record shows a substantial basis in law or fact for
questioning the plea.” United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013)
(citation omitted). “It is an abuse of discretion for a military judge to accept a
guilty plea without an adequate factual basis to support it” or “if the ruling is based
on an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F.
2012); see also United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996); Rule for
Courts-Martial 910(e) (“The military judge shall not accept a plea of guilty without
making such inquiry of the accused as shall satisfy the military judge that there is a
factual basis for the plea.”).

      The explanation of maltreatment that accompanies Article 93, UCMJ, states:

             The cruelty, oppression, or maltreatment, although not
             necessarily physical, must be measured by an objective
             standard. Assault, improper punishment, and sexual
             harassment may constitute this offense.

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 17.c(2).

       In United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002), our superior
court held:

             [I]n a prosecution for maltreatment under Article 93,
             UCMJ, it is not necessary to prove physical or mental
             harm or suffering on the part of the victim, although proof
             of such harm or suffering may be an important aspect of
             proving that the conduct meets the objective standard. It
             is only necessary to show, as measured from an objective
             viewpoint in light of the totality of circumstances, that the
             accused’s actions reasonably could have caused physical
             or mental harm or suffering.

        Based on the record before us and applying an objective evaluation to the
totality of circumstances surrounding appellant’s alleged acts of maltreatment, we
find a substantial basis in law and fact to question his pleas of guilty. In general,



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ordering a soldier to perform the routine exercises and training techniques found in
these specifications would not typically constitute maltreatment. Making a soldier
perform push-ups to the point of dizziness could rise to maltreatment if appellant
knew the soldier was likely to suffer physical or mental harm or suffering as a result
of recently donating blood. However, the facts evinced during the providence
inquiry are that appellant had no idea the soldier he ordered to perform push-ups had
recently given blood. Appellant actually stopped the exercise once he learned this
factor and that the soldier was becoming dizzy. Needless to say, making a soldier do
push-ups absent an evil design is an everyday occurrence in the Army and should not
lightly be labeled as maltreatment.

       In regards to the other maltreatment specifications, the military judge failed to
inquire into whether appellant’s actions could have reasonably been expected to
cause mental harm and instead elicited mere affirmation from appellant that the
activities in question, performed for a short period of time under neither harsh nor
dangerous conditions, could have resulted in “physical suffering.” As such, the
military judge failed to establish an adequate factual basis as to how appellant’s
actions reasonably could have caused physical or mental harm or suffering. We will
therefore take appropriate action in our decretal paragraph to set aside the findings
in regards to this charge and its four accompanying specifications.

                                   CONCLUSION

       On consideration of the entire record, the findings of guilty to Charge II and
its Specifications are set aside and dismissed. The remaining findings of guilty are
AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case, and in accordance with the principles articulated by our superior
court 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). In evaluating the Winckelmann
factors, appellant’s case was tried by a special court-martial and we find no dramatic
change in the penalty landscape as the remaining offenses exceed the maximum
punishment allowed by a special court-martial. See Rule for Courts-Martial
201(f)(2)(B)(i). In addition, appellant was sentenced by a military judge and, based
on our experience, we are familiar with the remaining offenses so that we may
reliably determine what sentence would have been imposed at trial.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with Winckelmann, 73 M.J. 11, and Sales, 22 M.J. 305, we
AFFIRM only so much of the sentence as provides for a bad-conduct discharge,
confinement for five months, and reduction to the grade of E-1. We find this
sentence purges the errors in appellant’s case and is also appropriate. All rights,



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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.
See UCMJ arts. 58b(c) and 75(a).



                                       FOR
                                      FOR  THE
                                          THE  COURT:
                                              COURT:




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




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