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

                           UNITED STATES, Appellee
                                         v.
                           Specialist JIOVANNY LEON
                          United States Army, Appellant

                                   ARMY 20120685

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

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief).

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

                                  25 November 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 terminated by
apprehension, three specifications of absence without leave (AWOL), and two
specifications of wrongful use of cocaine, in violation of Articles 86 and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter
UCMJ], respectively. 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 approved the adjudged sentence, except that he only approved
six months of confinement. The convening authority credited appellant with 56 days
of confinement credit against the sentence to confinement.

      This case is before us for review under Article 66, UCMJ. Appellate counsel
assigned two errors to this court, and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One assigned error warrants
discussion and relief. The remaining assignment of error and those matters raised
pursuant to Grostefon are without merit.
LEON—ARMY 20120685

                                    BACKGROUND

       At trial, appellant pleaded guilty (among other offenses) to Specification 1 of
Charge I, AWOL terminated by apprehension. During the plea inquiry, the military
judge listed the elements for AWOL terminated by apprehension and defined
apprehension as follows: “‘Apprehension’ means that your return to military control
was involuntary.” The military judge did not provide the rest of the baseline
definition of apprehension, nor did he elaborate on apprehension by civilian
authorities from related instructions in the Military Judges’ Benchbook [hereinafter
Benchbook]. 1 Appellant acknowledged he understood the elements and definitions

1
    The relevant provisions in the Military Judges’ Benchbook state:

               “Apprehension” means that the accused’s return to
               military control was involuntary. It must be shown that
               neither the accused nor persons acting at his request
               initiated the accused’s return.

               That the accused was apprehended by civilian authorities,
               for a civilian violation, and was thereafter turned over to
               military control by the civilian authorities, does not
               necessarily indicate that the accused’s return was
               involuntary. Such return may be deemed involuntary if,
               after the accused was apprehended, such civilian
               authorities learned of the accused’s military status from
               someone other than the accused or persons acting at his
               request.

               In addition, the return may be involuntary if, after being
               apprehended by civilian authorities, the accused disclosed
               his . . . identity as a result of a desire to avoid trial,
               prosecution, punishment, or other criminal action at the
               hands of such civilian authorities. However, if the
               accused disclosed his . . . identity to the civilian
               authorities because of the accused’s desire to return to
               military control, the accused’s return should not be
               deemed involuntary or by apprehension.

               The arrest of an accused by civilian authorities does not,
               in the absence of special circumstances, terminate his . . .
               unauthorized absence by apprehension where the record
               does not show such apprehension to have been conducted
               with or done on behalf of the military authorities. Thus,
               in the absence of special circumstances, mere


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LEON—ARMY 20120685

as set forth by the military judge. The military judge then engaged the appellant in
the following colloquy:

         MJ: And then tell me about how the AWOL ended, how did you
         come back to your unit?

         ACC: They actually a -- I got kind of started figuring out that I
         was -- they were going to start looking for me at any moment now
         so I decided to go back to a -- that weekend that I was there I was
         suppose to come back in -- my family, all my family lives in El
         Paso so a -- I was there at her house that weekend just so I could a
         -- leave my things that I had moved out of my apartment as well
         and a -- I was getting ready to come back in and a -- I was picked
         up by a Marshall [sic] that Thursday or Friday and a -- he asked
         me about my name and if I was in the Army. I told him, “yes.”
         And if I knew why he was there and I said, “I’m pretty sure -- it’s
         most likely the Army.” I told him I was going to come back on
         Monday anyways. I was waiting for the weekend to pass but a --
         he told he was just take me in then and there.

         MJ: So he picked you up at your parent’s house?

         ACC: Yes, sir.

         MJ: And that was the only reason he was there just to pick you up
         for being AWOL?

         ACC: Yes, sir.

         MJ: And he brought you back to Fort Bliss, then?

         ACC: Yes, sir.

         MJ: Where did he bring you on post?

         ACC: He took me straight to the MP station.



             apprehension by civilian authorities does not sustain the
             government’s burden of showing the return to military
             control was involuntary.

Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para.
3-10-2.d (1 Jan. 2010) (parentheses omitted).


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LEON—ARMY 20120685

         ....

         MJ: Do you agree that your absence was terminated by
         apprehension?

         ACC: Yes, sir.

The foregoing colloquy constituted the entire plea inquiry conducted by the military
judge into the termination by apprehension element. Based on the plea inquiry and
the stipulation of fact, 2 the military judge accepted appellant’s plea as provident.

                              LAW AND DISCUSSION

       We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “[I]n reviewing a
military judge’s acceptance of a plea for an abuse of discretion [we] apply a
substantial basis test: Does the record as a whole show a substantial basis in law
and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted). There exists a
substantial basis in fact to question a plea of guilty where a military judge “fails to
obtain from the accused an adequate factual basis to support the plea.” Id. (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). In order to establish an
adequate factual predicate for a guilty plea, the military judge must elicit “‘factual
circumstances as revealed by the accused himself [that] objectively support that
plea[.]’” Jordan, 57 M.J. at 238 (quoting United States v. Davenport, 9 M.J. 364,
367 (C.M.A. 1980)) (alterations in original).

       In this case, there exists a substantial basis in fact to question the providence
of appellant’s plea to AWOL terminated by apprehension. To establish that an
absence was terminated by apprehension, “the facts on the record must establish
[the] return to military control was involuntary.” United States v. Gaston, 62 M.J.
404, 405 (C.A.A.F. 2006). “Apprehension contemplates termination of the accused’s
absence in an involuntary manner; and termination otherwise is an absence ended
freely and voluntarily.” Id. (citing United States v. Fields, 13 U.S.C.M.A. 193, 196,
32 C.M.R. 193, 196 (1962)). Mere proof of apprehension by civilian authorities is
insufficient to establish that a return to military control is involuntary. Id. Rather,
in order to establish the absence was terminated by apprehension, the record must



2
  Regarding Specification 1 of Charge 1, the relevant portion of the stipulation of
fact reads: “On 15 July 2011, the [appellant] left his assigned unit, HHC, 1-41 IN,
and remained absent from his unit until he was apprehended on 5 October 2011.”



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LEON—ARMY 20120685

indicate the apprehension was “connected with or done on behalf of the military
authorities.” Fields, 32 C.M.R. at 197.

       Appellant’s counsel asserts the military judge abused his discretion by
accepting the guilty plea to Specification 1 of Charge I because there was not a
sufficient inquiry regarding whether the appellant’s return to military control was
involuntary. We agree. The military judge provided an incomplete definition of
apprehension from the Benchbook, and there was no explanation of apprehension by
civilian authorities. The sparse colloquy that followed did not satisfactorily
establish the appellant understood the involuntary nature of the apprehension, and
the record did not clearly indicate the apprehension by the marshal was conducted
with or done on behalf of military authorities. Further, the bare-bones stipulation of
fact did not assist our review of the appellant’s plea, considering it was little more
than a summarized version of the charge sheet. Consequently, based on the record
before us, we find an insufficient factual predicate to establish the appellant’s
absence was terminated by apprehension.

                                   CONCLUSION

       Accordingly, upon consideration of the entire record, submission by the
parties, and those matters personally raised by appellant pursuant to Grostefon, we
affirm only so much of the findings of guilty of Specification 1 of Charge I as finds
that: “appellant, U.S. Army, did, at or near Fort Bliss, Texas, on or about 15 July
2011, without authority, absent himself from his unit, to wit: Headquarters and
Headquarters Company, 1st Battalion, 41st Infantry Regiment located at Fort Bliss,
Texas, and did remain so absent until on or about 5 October 2011.” 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 of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), 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
                                        FORTHE
                                            THECOURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk
                                       Clerkof
                                             ofCourt
                                               Court




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