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

                           UNITED STATES, Appellee
                                        v.
                           Sergeant KYLE A. HANES
                          United States Army, Appellant

                                  ARMY 20130365

             Seventh U.S. Army Joint Multinational Training Command
                          Joshua S. Shuey, Military Judge
           Lieutenant Colonel David E. Mendelson , Staff Judge Advocate


For Appellant: Major Amy E. Nieman, JA; Captain Sara E. Lampro, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                 30 September 2013
                              ---------------------------------
                               SUMMARY DISPOSITION
                              ---------------------------------

CAMPANELLA, Judge

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of three specifications of communicating indecent language to
a minor, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. §
934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for nine months, forfeiture of $5 00.00 pay per month for
nine months, reduction to the grade of E -1, and a reprimand. The convening
authority approved only so much of the sentence as provided for a bad -conduct
discharge, confinement for seven months, forfeiture of $500.00 pay per month f or
nine months, reduction to the grade of E -1, and the reprimand.

      This case is before this court for review pursuant to Article 66, UCMJ. This
case was submitted on its merits with appellant personally raising matters pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find those issues
personally raised by appellant are without merit. Upon review, however, we find
one additional issue meriting discussion and relief.
HANES—ARMY 20130365

                                  BACKGROUND

       In Specifications 1, 2, and 3 of The Charge, appellant was charged with
communicating indecent language to HY, a child under sixteen, in violation of
Article 134, UCMJ. In charging the terminal element, all three specifications
alleged appellant’s conduct was “to the prejudice of good order and di scipline in the
armed forces and was of a nature to bring discredit to the armed forces.”

       At trial, consistent with a pretrial agreement, appellant pleaded guilty to The
Charge and its Specifications. Appellant admitted he communicated certain
language in writing to HY; that the language was indecent; and that HY was a child
under the age of sixteen. The military judge then questioned appellant on whether
his actions met the terminal element of Article 134, UCMJ. Appellant admitted and
established that his conduct was service discrediting in that his actions clearly
harmed the reputation of the service. Regarding whether his conduct was prejudicial
to good order and discipline, the military judge and appellant engaged in the
following colloquy:

             MJ: Is there anything about your conduct that’s prejudicial
             to good order and discipline as well?

             ACC: Yes, sir. It affected myself from performing in my
             unit . . . .

             MJ: I mean, you weren’t being affected in the performance
             of your duties while you were engaging in the criminal
             conduct, were you?

             ACC: No, sir, I was not.

             MJ: Okay. So, we’re probably going to limit this in terms
             of just service discrediting conduct even though it is
             alleged as both prejudicial to good order and discipline
             and service discrediting . . . .

       The military judge did not question appellant any further on his conduct being
prejudicial to good order and discipline. Following the plea inquiry, the military
judge accepted appellant’s pleas of guilty to each of the three specific ations but did
not make any exceptions to the charged offenses. Similarly, the stipulation of fact
was silent as to this aspect of the conjunctively charged element.




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HANES—ARMY 20130365

                              LAW AND DISCUSSION

      In this case, we find there is a substantial basis in law and fact to question
appellant’s plea of guilty to clause 1 of Article 134, UCMJ . We find, however, an
ample factual predicate to establish clause 2 of Article 134, UCMJ .

        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). “In doing so, we apply
the substantial basis test, looking at whether there is something in the record of trial,
with regard to the factual basis or the law, that would raise a substantial question
regarding the appellant's guilty plea.” Inabinette, 66 M.J. at 322. “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.” 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[.]” United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980). It
is not enough to elicit legal conclusions. The military judge must elicit 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
charged 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 or offenses 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). As our
superior court recently reiterated, “[t]he three clauses of Article 134 constitute
‘three 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)). Thus, if a specification alleges all three, then there must be an
adequate basis in fact in the record to support a finding of guilty to all three.

       Given the facts of this case, there i s no question that appellant’s language was
indecent. Moreover, the plea inquiry established facts demonstrating that
appellant’s conduct was service discrediting in that his actions clearly harmed the
reputation of the service. In this case, the providence inquiry did not establish
appellant’s actions were prejudicial to good order and discipline pursuant to clause 2
of Article 134. The military judge did not elicit an adequate factual basis during his
colloquy with appellant to support his plea to commi tting conduct prejudicial to
good order and discipline. As such, the military judge effectively excepted the
clause 1 language from the specification but failed to expressly reflect this action on
the record. Therefore, we find the military judge abused his discretion in accepting
appellant’s plea of guilty to the clause 1 language of the terminal element which had
been charged in the conjunctive.




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HANES—ARMY 20130365

       We find, however, appellant’s guilty plea adequately establishes appellant’s
actions were in violation of clause 2 of Article 134, UCMJ .

                                   CONCLUSION

       On consideration of the entire record and those matters personally submitted
by appellant pursuant to Grostefon, this court affirms only so much of The Charge
and its Specifications as provides appellant:

             Specification 1: Did, at or near Bamberg, Germany, on or
             about 20 February 2012, in writing communicate to H.Y.,
             a child under the age of 16 years, certain indecent
             language, to wit: “just come over and get naked,” or words
             to that effect, and under the circumstances, the conduct of
             the accused was of a nature to bring discredit upon the
             armed forces.

             Specification 2: Did, at or near Bamberg, Germany, on or
             about 20 February 2012, in writing communicate to H.Y.,
             a child under the age of 16 years, certain indecent
             language, to wit: “I really want to rip your clothes off and
             have my way with you because I like you and your
             Chinese and you have the sexiest lips oh my god. I know
             you are a virgin and haven’t had sex yet. Oral sex is
             great. 69 is best. While you suck my cock I am eating
             your pussy and fingering it,” among other things, or words
             to that effect, and under the circumstances, the conduct of
             the accused was of a nature to bring discredit upon the
             armed forces.

             Specification 3: Did, at or near Bamberg, Germany, on or
             about 20 February 2012, in writing communicate to H.Y.,
             a child under the age of 16 years, certain indecent
             language, to wit: “Well I want to rub your pussy from
             outside of your thong until I see your pussy making your
             thong wet. Then I want to use my teeth and take your
             thong off, then I want to kiss back up your legs and when I
             get to the inside of your thigh I will gently bite the ins ide
             making you even more wet I will slide your legs apart and
             spread your pussy lips open with my fingers as I slide my
             tongue inside your super tight pussy,” or words to that
             effect, and under the circumstances, the conduct of the
             accused was of a nature to bring discredit upon the armed
             forces.



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HANES—ARMY 20130365

       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 sentence is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the finding set aside by this decis ion, are
ordered restored. See UCMJ art. 75(a).

      Senior Judge COOK and Judge HAIGHT concur.

                                        FOR THE COURT:




                                        ANTHONY O. POTT
                                        ANTHONY O. POTTINGER
                                        Chief  Deputy
                                        Chief Deputy     Clerk
                                                     Clerk       of Court
                                                           of Court




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