UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                 Private First Class TIMOTHY M. DABROWSKI
                          United States Army, Appellant

                                   ARMY 20120012

                Headquarters, 3d Infantry Division and Fort Stewart
                          Tiernan Dolan, Military Judge
                 Colonel Randall J. Bagwell, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA.

For Appellee: Lieutenant Colonel Amber J. Roach, JA.

                                   31 October 2012

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                               SUMMARY DISPOSITION
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YOB, Senior Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of violating a lawful order of a superior
commissioned officer to remain on post because his pass privileges were revoked,
one specification of violating a lawful order of a noncommissioned officer not to
maintain a personally owned weapon or store ammunition in his barracks room, one
specification of wrongful manufacture of a controlled substance with the intent to
distribute, three specifications of wrongful use of a controlled substance, one
specification of wrongful distribution of a controlled substance, and one
specification of negligently discharging a firearm, in violation of Articles 90, 91,
112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 891, 912a, 934
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a dishonorable discharge, confinement for 28 months, and reduction to
the grade of E1. Appellant was credited with a total of 243 days of confinement
credit for pretrial confinement pursuant to United States v. Allen, 17 M.J. 126
(C.M.A. 1984), for unlawful pretrial punishment under Article 13, UCMJ, and for
punishment already imposed pursuant to United States v. Pierce, 27 M.J. 367
(C.M.A. 1989).
DABROWSKI—ARMY 20120012

       This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case on its merits. This court has considered the matters appellant
raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
determined that they are without merit. However, pursuant to the ultimate offense
doctrine and in light of the fact that breaking restriction can no longer be considered
a lesser-included offense of willfully disobeying a superior commissioned officer,
we find a substantial basis in law and fact to reject appellant’s plea to Charge II and
its Specification.

       Neither the stipulation of fact nor the providence inquiry develops or
establishes sufficient facts to support a plea of guilty to a violation of Article 90,
UCMJ, but merely establish the offense of breaking restriction in violation of Article
134, UCMJ. Absent admission or stipulation that the superior officer invested the
restriction, subject to charge here, “with the full authority of his office” to “lift [the
duty to remain within certain limits] above the common ruck,” United States v. Loos,
4 U.S.C.M.A. 478, 480–81, 16 C.M.R. 52, 54–55 (1954), the “ultimate offense” in
this case was breaking restriction. See United States v. Traxler, 39 M.J. 476
(C.M.A. 1994); United States v. Peaches, 25 M.J. 364 (C.M.A. 1987); United States
v. Bratcher, 18 U.S.C.M.A. 125, 39 C.M.R. 125 (1969). In addition, the offense of
breaking restriction can no longer be considered a lesser-included offense of
disobeying a superior commissioned officer so that this court is not free to substitute
the former for the latter. See generally United States v. Jones, 68 M.J. 465, 472
(C.A.A.F. 2010).

       Therefore, we find a substantial basis in law and fact to reject appellant’s plea
of guilty to Charge II and its Specification and disapprove the finding of guilty. See
United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

       On consideration of the entire record, we disapprove the finding of guilty of
Charge II and its Specification and dismiss that charge and specification. The
remaining findings of guilty are correct in law and fact and 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. 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 in Moffeit, the court affirms the
sentence as approved by the convening authority.

      Judge KRAUSS and Judge BURTON concur.

                                         FOR
                                          FORTHE
                                              THECOURT:
                                                  COURT:



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

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DABROWSKI—ARMY 20120012




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