                        UNITED STATES, Appellee

                                        v.

            Stanley L. HARDEMAN, Jr., Senior Airman
                   U.S. Air Force, Appellant

                                 No. 03-0208

                          Crim. App. No. S30117

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                        Argued October 22, 2003

                         Decided April 20, 2004

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN JJ., joined.



                                    Counsel


For Appellant: Captain L. Martin Powell (argued); Colonel
Beverly B. Knott (on brief); and Major Terry L. McElyea.

For Appellee: Captain Michelle M. Lindo (argued); Colonel
LeEllen Coacher, Major John D. Douglas and Major James K.
Floyd (on brief); Lieutenant Colonel Robert V. Combs and
Lieutenant Colonel Lance B. Sigmon.



Military Judge:       Kurt D. Schuman
      THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Hardeman, No. 03-0208/AF


      Judge BAKER delivered the opinion of the Court:

      Pursuant to his pleas, Appellant was convicted by a

special court-martial, military judge alone, of one

specification of unauthorized absence and one specification

of failure to go in violation of Article 86, Uniform Code

of Military Justice [hereinafter UCMJ], 10 U.S.C. § 886

(2000).    The adjudged sentence provided for a bad-conduct

discharge, confinement for four months, and reduction to

pay grade E-1.     In accordance with a pretrial agreement,

the convening authority approved confinement for two

months, but otherwise approved the sentence as adjudged.

The United States Air Force Court of Criminal Appeals

affirmed the findings and sentence in an unpublished

opinion.    This Court granted review to determine:

      WHETHER APPELLANT’S GUILTY PLEA TO SPECIFICATION 1 OF
      THE CHARGE IS IMPROVIDENT BECAUSE THE MILITARY JUDGE
      FAILED TO ELICIT FACTS FROM APPELLANT TO SUPPPORT THAT
      HIS ABSENCE FROM HIS UNIT WAS WITHOUT PROPER
      AUTHORITY.

Appellant was charged with absenting himself without

authority from his unit on or about November 1, 2001, and

remaining absent until apprehended on or about December 14,

2001.1    During his providence inquiry, Appellant set forth




1
  Appellant has not challenged the providence of his guilty plea to
Specification 2 alleging an unrelated failure to go.



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United States v. Hardeman, No. 03-0208/AF


matters inconsistent with a plea of guilty to an

unauthorized absence on November 1.          As a result, we are

left with a substantial basis in law and fact to question

the plea and we reverse as to Specification 1 of the

Charge.

                                 FACTS

      Appellant reported to Tinker Air Force Base, Oklahoma,

on October 22, 2001.      At the time, Appellant was a 26 year-

old E-4 with 44 months active duty service and was married

with two dependents.      Prior to joining his unit, the 72nd

Security Forces Squadron, Appellant was required to attend

training between October 22 and October 29.          Appellant’s

stipulation of fact indicated that when he had not yet

reported to training on October 25, his supervisor, Staff

Sergeant (SSgt) Brian Andrew, called Appellant at home.

SSgt Andrew gave Appellant permission to stay home that day

and told him to report to training the following morning.

Appellant reported one hour late.           On Monday, October 29,

SSgt Andrew released Appellant from the training course.

Appellant was not thereafter present for duty with his unit

until he was apprehended on December 14 at his local

residence.

     The stipulation of fact also states that “[i]f called

to testify, SSgt Andrew would say he instructed the accused


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United States v. Hardeman, No. 03-0208/AF


to report to ‘A’ flight, day shift on 1 November, 2001.”

However, during the providence inquiry Appellant maintained

that SSgt Andrew did not give him a specific date to report

for duty and that he was expecting a telephone call

advising him when he should report.         In Appellant’s words:

     I was supposed to report to duty -- I left training
     and I was supposed to receive a phone call. I never
     received the phone call, so I never reported to duty.
     Around December 14th, as the document states, I was
     apprehended at my home and brought down to the LE
     station; but, I was waiting for the phone call so
     that’s why I never came to duty. During the time that
     I left training, a couple of days after, I never
     received the phone call. I know the phone call was
     supposed to come, but I never — I didn’t call back; I
     was waiting to see if they were going to call back.
     And, days went into weeks, and weeks into that month
     and I never went in to work.

Upon further questioning, Appellant insisted that he was

not given a specific date and time to report for duty:

      MJ: . . . Now, do you recall Staff Sergeant Andrew
      instructing you to report to “A” Flight day shift on 1
      November of 2001?

      ACC: I recall him saying that he would give me a call.
      The date, exactly, I don’t recall him saying.

      . . . .

      MJ: Okay. So, as of the 29th -- now, what the
      stipulation says is that if Staff Sergeant Andrew were
      to testify, that he would testify that he did tell you
      to report to “A” Flight day shift on 1 November of
      2001. Do you agree with that? That, in fact, that’s
      what he would say?

      ACC: Yes, I agree that’s what he would say is the
      truth.



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United States v. Hardeman, No. 03-0208/AF


      MJ: Okay, but you have -- did you know that you were
      going to be assigned to “A” Flight?

      ACC: Yes, sir, he told me “A” Flight.

      MJ: Okay, so there’s no question in your mind that you
      were assigned to “A” Flight?

      ACC: Right.

      MJ: Okay. Now, if he says you were supposed to report
      on 1 November — okay, that’s what he would testify to,
      right? Now you don’t recall him necessarily saying
      that?

      ACC: No, sir.

      MJ: And, you expected a phone call?

      ACC: Yes, sir.

     Appellant acknowledged that he had no accrued leave

and that he should have called his unit, especially because

“everybody was pretty busy” and “working long hard hours”

in the month following September 11, 2001.    The military

judge continued:

      MJ: Now, after a couple of days, you should have known
      that somebody missed something. Now, this is assuming
      that no one told you to report on the 1st of November,
      right?

      ACC: Right.

      MJ: Now, if you were waiting for the phone call and it
      didn’t come for a few days, you should have called in,
      right?

      ACC: Yes, sir.

      . . . .




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United States v. Hardeman, No. 03-0208/AF


      MJ: And, it became even more obvious after two and
      three and four and five weeks had passed?

      ACC: Yes, sir.

      MJ: So, what I’m getting at here is maybe there was a
      misunderstanding early on during this charged time
      period; but as time passed, you knew better. You knew
      you should be getting back to your unit.

      ACC: Yes, sir.

      . . . .

      MJ: So, do you agree that, on or about 1 November
      2001, that you absented yourself from your
      organization?

      ACC: Yes, sir.

      MJ: And, that your absence was without proper
      authority from someone who could give you leave?

      ACC: Yes, sir.

Based on this colloquy and Appellant’s stipulation of fact,

the military judge accepted Appellant’s plea of guilty to

an unauthorized absence on or about November 1 and ending

with his apprehension on December 14, a period of 43 days.

In summary, Appellant persistently asserted that he was

waiting for a telephone call to inform him when he was to

report for duty. Appellant also explained that the person

he expected to call him, SSgt Andrew, had previously

authorized his absences.

      On appeal, Appellant argues that his statements during

the providence inquiry regarding the time and place at



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United States v. Hardeman, No. 03-0208/AF


which he was required to report for duty were inconsistent

with his plea to unauthorized absence on or about November

1.

      The Government responds that Appellant admitted to all

the elements of the offense before the military judge,

therefore, there is no substantial basis on which to

question the plea.

                              DISCUSSION

      A court shall not accept a plea of guilty where “an

accused . . . sets up matter inconsistent with the plea, or

if it appears that he has entered the plea of guilty

improvidently . . . .”      Article 45(a), UCMJ, 10 U.S.C. §

845(a) (2000).     Nor shall a court 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.”    Rule for Courts-Martial [hereinafter R.C.M.]

910(e).    See United States v. Care, 18 C.M.A. 535, 40

C.M.R. 247 (1969).

          A guilty plea will be rejected only where the record

of trial shows a substantial basis in law and fact for

questioning the plea.      United States v. Prater, 32 M.J.

433, 436 (C.M.A. 1991); United States v. Jordan, 57 M.J.

236, 238 (C.A.A.F. 2002). In this case the record of trial

includes the colloquy between Appellant and the military


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United States v. Hardeman, No. 03-0208/AF


judge and a stipulation of fact, as well as any inferences

reasonably drawn from the record.           See Care, 18 C.M.A. at

540, 40 C.M.R. at 252.

        A service member commits the offense of unauthorized

absence, Article 86, when it is shown:

        (a)    That the accused absented himself or herself
               from his or her unit . . . at which he or
               she was required to be;

        (b)    That the absence was without authority from
               anyone competent to give him or her leave;
               and

        (c)    That the absence was for a certain period of
               time.2

A definitive inception date is indispensable to a

successful prosecution for unauthorized absence.              United

States v. Harris, 21 C.M.A. 590, 593, 45 C.M.R. 364, 367

(1972).       Moreover, the Manual for Courts-Martial, United

States (2002 ed.), Part IV, para. 10.e., authorizes

increased punishments based upon, among other things, the

duration of the absence.         Thus, it necessarily follows that

in addition to establishing that an unauthorized absence

offense has been committed at all, a precise inception date

is required in determining the duration of the absence.

“The length of an unauthorized absence is the essential

element in determining the legal punishment for the


2
    In this case an additional element was termination by apprehension.


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United States v. Hardeman, No. 03-0208/AF


offense.”    United States v. Francis, 15 M.J. 424, 427

(C.M.A. 1983)(citation omitted).

        In Appellant’s case, the providence inquiry revealed

an inconsistency between the stipulation of fact and

Appellant’s statements during the plea inquiry.          Although

there may have come a point between November 1 and December

14 when Appellant was absent without authority, the record

does not fix a date of inception.           The judge made several

comments reflecting his understanding of Appellant’s belief

that he would receive a telephone call including the

following: “maybe there was a misunderstanding early on

during this charged time period,” and “you may feel that

you have some justification for a few days here.”          But the

providence inquiry does not ultimately reveal the date on

which Appellant was willing to admit he absented himself

without authority.

        On the one hand, when asked directly by the military

judge whether he agreed that he absented himself without

proper authority on November 1, Appellant responded “Yes,

Sir.”    On the other hand, Appellant indicated repeatedly

that he was waiting for a telephone call and that it only

became obvious over a matter of weeks that he should have

called.    The military judge’s colloquy with Appellant did

not resolve this inconsistency or otherwise establish that


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United States v. Hardeman, No. 03-0208/AF


Appellant lacked authority to remain away from his unit on

or about November 1.      Rather than focusing on a precise

date for the inception of the Appellant’s unauthorized

absence, the military judge confirmed only that “it became

more obvious after two and three and four and five weeks

had passed” that Appellant “knew better” and should have

contacted or returned to his unit.

       As noted above, Article 86 authorizes increased

punishments depending on the duration of the unauthorized

absence, and it is only for an absence greater than 30 days

that an accused becomes eligible for punitive discharge.

Thus, for this particular offense, Appellant was only

exposed to a punitive discharge if the date of inception

was more than 30 days before December 14, or on November

13.3

       Finally, the Government argues that it is implausible

for someone of Appellant’s grade and experience to believe

he was authorized to remain away from his unit until

telephoned.    While this is certainly a valid consideration

in a contested case, in order to plead guilty, Appellant



3
  We are cognizant of the fact that in this case, neither an absence of
30 days or less nor the accompanying failure to go offense would
authorize a punitive separation individually. However, under the
escalator clause of Rule for Courts-Martial 1003(d)(3), the combined
maximum authorized punishment includes confinement for seven months,
theoretically exposing Appellant to a punitive discharge.


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United States v. Hardeman, No. 03-0208/AF


must admit to a date that is in fact “on or about” November

1.   Here, for whatever reasons, Appellant refused to do so.

A guilty plea must be an admission to all the elements of a

formal criminal charge.      Care, 18 C.M.A. at 539, 40 C.M.R.

at 251.   Because the record does not support the legal

determination that Appellant conceded that his absence was

without authority on the charged date, there is a

substantial basis in law and fact to question his plea.

                              CONCLUSION

      The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 1 of the

Charge.   The finding of guilty to Specification 1 and the

sentence are set aside.      The record of trial is returned to

the Judge Advocate General of the Air Force.     A rehearing

is authorized.




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