UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              HAIGHT, PENLAND, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                       Staff Sergeant TRAVIS R. McGRUDER
                            United States Army, Appellant

                                      ARMY 20130294

         Headquarters, United States Army Maneuver Center of Excellence
                        Stephen E. Castlen, Military Judge
             Colonel James F. Garrett, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Charles C. Poche, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Robert N. Michaels, JA; Captain Patrick A. Crocker, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major John
K. Choike, JA; Captain Scott L. Goble, JA (on brief).


                                      30 October 2015

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of aggravated assault with a means
likely to produce death or grievous bodily harm (three of them with excepted
language), reckless endangerment, and adultery, in violation of Articles 128 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (2006) [hereinafter
UCMJ]. Then, a panel composed of officer and enlisted members convicted
appellant, contrary to his pleas, of six specifications of willful disobedience of a
noncommissioned officer, of making a false official statement, and of the contested
language of the three specifications of aggravated assault to which appellant pleaded
McGRUDER—ARMY 20130294

guilty with exceptions, in violation of Articles 91, 107, and 128, UCMJ. 1 The panel
sentenced appellant to a dishonorable discharge, confinement for 17 years, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority, consistent with a pretrial agreement, approved only 60 months of
confinement but otherwise approved the adjudged sentence.

      This case is before us for review under Article 66, UCMJ. Appellate defense
counsel raises four assignments of error, two of which merit discussion and relief.
Appellant personally submitted initial matters and then additional matters pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits
discussion or relief. However, both parties agree that the promulgating order
contains an error which merits brief discussion and relief.

                                  BACKGROUND

       Appellant tested positive for the Human Immunodeficiency Virus (HIV).
Consequently, he was counseled by both medical personnel and his chain of
command regarding the risks and responsibilities corresponding to his condition.
Appellant was specifically ordered not to engage in unprotected sex, to inform
potential sexual partners of his HIV-positive status, not to engage in combatives, not
to participate in Mixed Martial Arts (MMA) competitions, and “to follow all medical
advice given [him] by healthcare providers and to make all [his] appointments
associated with [his] HIV diagnosis.” Appellant repeatedly and consistently
disobeyed the above directives, thereby endangering multiple persons: soldiers,
civilians, sexual partners, MMA and combatives opponents, and attending medical
personnel alike.

      Appellant also pleaded guilty to and was convicted of an aggravated assault
by unlawfully striking a woman in the face with such force as to fracture her nasal
bone and orbital floor.

                             LAW AND DISCUSSION

                            1. HIV Cases and Likelihood

       Appellant alleges there is a substantial basis in law and fact to question the
providency of his plea of guilty to the three specifications of aggravated assault with
a means likely to produce death or grievous bodily harm by engaging in sexual
intercourse as an HIV carrier with three different women as well as his plea of guilty
to reckless endangerment by “engaging in a full contact mixed martial arts
competition, an activity resulting in bleeding by both participants.” In two


1
 The panel acquitted appellant of two specifications of assault consummated by
battery and one specification of making a false official statement.


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assignments of error, appellant claims he was improvident to these four offenses
because, during the colloquy with the military judge, appellant did not adequately
understand or explain how the “risk of harm caused by his actions” was “likely” to
produce death or grievous bodily harm.

       “A military judge's decision to accept a guilty plea is reviewed for an abuse of
discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). An
appellate court will not set aside a guilty plea unless there is “a substantial basis in
law and fact for questioning the guilty plea.” United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008) (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)) (internal quotation marks omitted).

         A military judge can abuse his discretion if he accepts appellant’s guilty plea
based upon “an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 322). A knowing and voluntary plea
requires the military judge to explain the elements of an offense to the accused and
to elicit the factual basis of the offense. United States v. Redlinski, 58 M.J. 117, 119
(C.A.A.F. 2003) (citations omitted). Failure to do so constitutes “reversible error,
unless ‘it is clear from the entire record that the accused knew the elements,
admitted them freely, and pleaded guilty because he was guilty.’” Id. (quoting
United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992)). Moreover, “[t]he
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.” United States v. 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)). An accused must understand “the nature of the charges brought against him
. . . .” Id. (citations omitted). “[A]n accused has a right to know to what offense and
under what legal theory he or she is pleading guilty.” Id.

       One of the elements of the offense of aggravated assault to which appellant
pleaded guilty is “[t]hat the weapon, means, or force was used in a manner likely to
produce death or grievous bodily harm.” Manual for Courts Martial, United States
(2008 ed.) [hereinafter MCM], pt. IV, ¶ 54.b.(4)(a)(iv). Similarly, one of the
elements of the offense of reckless endangerment to which appellant also pleaded
guilty is “that the conduct was likely to produce death or grievous bodily harm to
another person.” MCM, pt. IV, ¶ 100a.b. (3).

      When explaining the elements of appellant’s offenses that pertain to his
conduct relative to his HIV status, the military judge defined “likely” in the
following fashion:

             The likelihood of death or grievous bodily harm is
             determined by measuring two factors. Those two factors
             are: one, the risk of the harm; and two, the magnitude of



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McGRUDER—ARMY 20130294

             the harm. In evaluating the risk of the harm, the risk of
             death or grievous bodily harm must be more than merely a
             fanciful, speculative, or remote possibility. In evaluating
             the magnitude of the harm, the consequence of death or
             grievous bodily harm must be at least probable and not
             just possible, or in other words, death or grievous bodily
             harm would be a natural and probable consequence of your
             acts. Where the magnitude of the harm is great, the fact
             finder may find that an aggravated assault exists even
             though the risk of harm is statistically low. For example,
             if someone fires a rifle bullet into a crowd and a bystander
             in the crowd is shot, then to constitute an aggravated
             assault, the risk of harm of hitting that person need only
             be more than merely a fanciful, speculative, or remote
             possibility since the magnitude of the harm which the
             bullet is likely to inflict on that person is great if it hits
             the person.

See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para.
3-54-8, n.4. (10 Sep. 2014). Significantly, when defining the term “likely” with
respect to the aggravated assault offense for severely injuring a woman by striking
her in the face, conduct completely unrelated to his HIV status but to which
appellant also pleaded guilty, the military judge merely stated, “A force is likely to
produce death or grievous bodily harm when the natural and probable results of its
particular use would be death or grievous bodily harm.” This difference in how
“likely” is defined in the context of HIV cases as opposed to other cases of
aggravated assault is the very concern addressed last term by our superior court in
United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015). The Court of Appeals for
the Armed Forces (C.A.A.F.) ruled that “‘likely’ must mean the same thing in an
Article 128, UCMJ, prosecution for an aggravated assault involving HIV
transmission as it does in any other prosecution under the statute.” Id. at 66.

       In Gutierrez, the C.A.A.F. expressly rejected, at least for purposes of HIV
cases, that “the risk of harm need only be more than merely a fanciful, speculative,
or remote possibility.” 2 Id. at 66-67. The court found this standard inconsistent
with the statutory language of Article 128, UCMJ. Instead, the “ultimate standard []
remains whether -- in plain English -- the charged conduct was ‘likely’ to bring
about grievous bodily harm.” Id. at 66. Therefore, as the very language found


2
  As this is an HIV case, we need not decide at this time whether or not it would be
error to apply the current Military Judges’ Benchbook full instruction regarding
“likelihood of death or grievous bodily harm” with its corresponding analytical
framework to a non-HIV aggravated assault. Dep’t of Army, Pam. 27-9, Legal
Services: Military Judges’ Benchbook, para. 3-54-8, n.4 (10 Sep. 2014).


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McGRUDER—ARMY 20130294

problematic in Gutierrez is the language used in this case, we find a substantial basis
in law and fact to question appellant’s guilty plea to three of the charged aggravated
assaults and reckless endangerment.

       Like the C.A.A.F. did in Gutierrez, with respect to the three HIV-related
aggravated assault specifications, we find that we can still affirm convictions to the
lesser-included offense of assault consummated by battery as appellant’s “sexual
partners did not provide meaningful informed consent.” Id. at 68. This is
particularly evident in this case as the specifically contested language in these
aggravated assault specifications, which appellant excepted from his guilty plea and
of which the panel subsequently found appellant guilty, is “engaging in said sexual
intercourse without informing [his sexual partner] of his HIV infection.”

                         2. Error in the Promulgating Order

      Appellant was charged with, pleaded guilty to, and was convicted of adultery. 3
However, the report of result of trial, as provided to the convening authority as an
enclosure to the staff judge advocate’s (SJA) post-trial recommendation (SJAR)
erroneously lists this offense as “Dismissed.” Likewise, the promulgating order also
shows this offense as “Dismissed.” Both parties acknowledge this error. While we
may presume a clerical oversight, we find this error cannot be simply fixed via a
correction certificate.

       “In a case referred to it, the Court of Criminal Appeals may act only with
respect to the findings and sentence as approved by the convening authority.” UCMJ
art. 66(c). In this case, the convening authority’s action makes no mention of the
findings of the court-martial. Rule for Courts-Martial [hereinafter R.C.M.] 1107(c)
provides that “[a]ction on the findings is not required.” However, “a convening
authority who does not expressly address findings in the action impliedly acts in
reliance on the statutorily required recommendation of the [SJA] and thus effectively
purports to approve implicitly the findings as reported to the convening authority by
the SJA.” United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994) (internal citation
omitted).

       Here, neither the SJAR nor its addendum lists or details the findings adjudged
at appellant’s court-martial, but instead properly relies upon the Result of Trial,
listed as an enclosure on both. In accordance with R.C.M. 1106, the SJAR is
required to contain “a copy of the report of results of the trial, setting forth the
findings, sentence, and confinement credit to be applied.” R.C.M. 1106(d)(3)
(emphasis added). Because we presume the convening authority approved the



3
 Appellant pleaded not guilty to a second specification of adultery, but this
specification was dismissed prior to findings.


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findings as reported to him by the SJA in the post-trial documents, we may not
affirm any finding of guilty to this adultery specification.

       While, in theory, we could return this record to the convening authority to
clarify his action with respect to the adultery offense and possibly correct the
promulgating order, in the interest of judicial economy, we will treat this
specification of adultery as it was reported and is currently promulgated—that is,
DISMISSED.

                                   CONCLUSION

       The findings of guilty to Specifications 2, 3, and 4 of Charge II are
AFFIRMED only as to the lesser-included offense of assault consummated by
battery. The findings of guilty to Specification 1 (reckless endangerment) of Charge
III and Charge III are set aside and that specification and charge are DISMISSED.
Specification 2 of Charge III will remain DISMISSED as originally promulgated.
The remaining findings of guilty are AFFIRMED.

       Findings of guilty have been set aside, and we must now decide whether to
reassess the sentence or order a rehearing. After considering the factors in United
States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we find that we can
reassess. Although we have reduced the three HIV-related aggravated assaults to
simple batteries, there is not a dramatic change in the penalty landscape. This is
especially so in light of the fact that the military judge instructed the panel to treat
each HIV-related assault and its corresponding violation of the safe sex order as one
offense for sentencing purposes. Also, the nature of the remaining offenses still
captures the gravamen of appellant’s misconduct, and the circumstances surrounding
the dismissed language and offenses remain admissible and relevant to the remaining
offenses.

        In this case, reassessment is quite simple. Each HIV-related aggravated
assault carried with it a maximum period of confinement of three years and
subsumed, due to merging for sentencing, the maximum of one year of confinement
for its corresponding disobedience. Now, instead, the one-year maximum for the
disobedience subsumes the six months of maximum confinement allowed for each
lesser-included offense of battery. Accordingly, the maximum benefit appellant
could experience is a reduction of two years of confinement for each of his three
HIV-related assaults. Furthermore, reckless endangerment carries a maximum
confinement period of one year, and the adultery offense, now dismissed, carries a
maximum of one year’s confinement. The panel sentenced appellant to a
dishonorable discharge, confinement for 17 years, total forfeitures, and reduction to
the lowest enlisted grade. Allowing for the maximum potential reduction in
confinement of eight years would still place appellant’s confinement time
significantly over his approved sentence which includes only 60 months of



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confinement. After reassessment, we are confident the sentence adjudged, absent
any and all noted errors, would have been at least as severe as the sentence
approved. See United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We also find the
approved sentence is appropriate. Accordingly, the approved sentence 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.

      Judge PENLAND and Judge WOLFE concur.


                                     FOR
                                     FOR THE
                                         THE COURT:
                                             COURT:



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




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