UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Specialist JOSEPH W. MOORE, JR.
                         United States Army, Appellant

                                  ARMY 20120496

                             Headquarters, Fort Bliss
               David H. Robertson and Karen Riddle, Military Judges
                  Colonel Francis P. King, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Robert A. Feldmeier, JA (on brief).

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


                                   15 August 2014

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

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave, one
specification of violating a lawful general regulation, two specifications of assault
consumated by battery, and one specificaiton of breaking restriction, in violation of
Articles 86, 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886,
892, 928, 934 (2006). The military judge sentenced appellant to a bad-conduct
discharge, confinement for six months, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence and credited appellant with 108
days of confinement credit against the sentence to confinement.

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
None of appellant’s assignments of error or matters personally raised pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) warrant relief. We note,
however, one additional issue that warrants discussion and relief.
MOORE—ARMY 20120496

       Upon review of the record, we conclude the military judge failed to elicit an
adequate legal and factual basis to establish appellant’s breaking restriction was of a
nature to bring discredit upon the armed forces, in violation of Clause 2 of Article
134, UCMJ. “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; UCMJ art. 45; Rule for Courts-Martial
910(e).

       The government charged appellant with breaking restriction, “which conduct,
under the circumstances, 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,” a
violation of Clauses 1 and 2 of Article 134, UCMJ. See Manual for Courts–Martial,
United States (2008 ed.), pt. IV, ¶¶ 60.c.(2), (3). As our superior court recently
reiterated, “[t]he . . . clauses of Article 134 constitute ‘. . . distinct and separate
parts.’” United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United
States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). It follows, then
that “[v]iolation of one clause does not necessarily lead to a violation of the other . .
. .” Id. More specifically to the case before us, the court in Fosler went on to state
that “disorders and neglects to the prejudice of good order and discipline” are not
synonymous with “conduct of a nature to bring discredit upon the armed forces . . .
.” Id. Thus, when a specification alleges both Clause 1 and 2, and an accused
pleads guilty to the entire specification, then appellant’s guilty plea must be
provident to each clause.

       Given the facts of this case, there is no question that appellant broke
restriction. Moreover, the plea inquiry firmly established facts demonstrating
appellant’s conduct was prejudicial to good order and discipline. The plea inquiry,
however, failed to elicit an adequate legal and factual basis from appellant
establishing his understanding that his conduct “would tend to bring discredit on the
armed forces if known by the public.” United States v. Phillips, 70 M.J. 161, 165-
166 (C.A.A.F. 2011).

       Here, the military judge properly defined Clause 2 of Article 134, and
appellant acknowledged he understood that definition. Appellant summarily
acknowledged his conduct violated Clause 2, and the military judge never asked
appellant to explain how his conduct violated Clause 2. Furthermore, the stipulation
of fact only stated that appellant’s conduct “was of a nature to bring discredit upon
the armed forces as Soldiers and civilians were aware of his breaking restriction.”
However, nothing in the record shows how this stipulated fact reflects the
appellant’s understanding of how this fact relates to the law. See United States v.



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MOORE—ARMY 20120496

Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 18
U.S.C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969)) (“The providence of a plea
is based not only on the accused's understanding and recitation of the factual history
of the crime, but also on an understanding of how the law relates to those facts.”).
We therefore find a substantial basis in law and fact to question the providence of
appellant’s plea to committing conduct of a nature to bring discredit upon the armed
forces in violation of Clause 2 of Article 134, UCMJ.

                                   CONCLUSION

       On consideration of the entire record, as well as those matters personally
raised by appellant pursuant to Grostefon, the court affirms only so much of the
finding of guilty of the Specification of Charge III as finds that appellant, “U.S.
Army, having been restricted to the limits of White Sands Missile Range, by a
person authorized to do so, did, at or near White Sands Missile Range, New Mexico,
on or about 5 October 2011, break said restriction, which conduct, under the
circumstances, was to the prejudice of good order and discipline in the armed
forces.” The remaining findings of guilty are AFFIRMED. Reassessing the sentence
on the basis of the error noted, the entire record, 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. 2014) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986),
the sentence as approved by the convening authority is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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