UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                       CAMPANELLA, HERRING, and PENLAND
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E2 JOSEPH KARGBO
                          United States Army, Appellant

                                   ARMY 20150011

             Headquarters, 19th Expeditionary Sustainment Command
                         Mark A. Bridges, Military Judge
            Lieutenant Colonel Maureen A. Kohn, Staff Judge Advocate


For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Scott A. Martin, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).


                                  13 December 2016

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

PENLAND, Judge:

       A military judge sitting as general court-martial convicted appellant, pursuant
to his pleas, of disobeying a lawful order, disobeying a lawful general order, making
a false official statement, and two specifications of assaulting a law enforcement
officer, in violation of Articles 90, 92, 107, and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 890, 892, 907, 928 (2012) [hereinafter UCMJ]. A panel
composed of officer and enlisted members convicted appellant, contrary to his plea,
of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012) and
sentenced appellant to a bad-conduct discharge, confinement for 180 days, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority approved only so much of the adjudged sentence as provided for a bad-
conduct discharge, confinement for 175 days, forfeiture of all pay and allowances,
KARGBO—ARMY 20150011

and reduction to the grade of E-1. * Appellant was also credited with four days of
Allen credit against the sentence to confinement.

      This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error, one of which merits brief discussion and relief.

                                  BACKGROUND

       In the Specification of Additional Charge III, appellant was charged with
disobeying a lawful general order in violation of Article 92, UCMJ. The
specification alleged:

             In that [appellant], U.S. Army, did, at or near Camp
             Walker, Republic of Korea, on or about 4 October 2014,
             fail to obey a lawful general order, to wit: paragraph 4,
             General Order Regarding Off-Installation Curfew, dated
             14 January 2013, by wrongfully failing to comply with the
             off-installation curfew that is in effect from 0100 hours to
             0500 hours Monday through Sunday.

      The military judge listed the following elements of this specification:

             One, that there was in existence a certain lawful general
             order . . .

             Two, that you had a duty to obey such order, and

             Three, that at or near Camp Walker, Republic of Korea, on
             or about 4 October 2014, you failed to obey this lawful
             general order by wrongfully failing to comply with the
             off-installation curfew that is in effect from 0100 hours to
             0500 hours Monday through Sunday.

       The military judge did not define “wrongfully.” The providence inquiry as to
this specification included this discussion between appellant and the military judge:

             MJ: . . .but with respect to the curfew issue, you realized
             it was 1:10 when you looked down at your watch. Prior to
             looking down at your watch, did you recognize that you
             are about to violate curfew?



*
 The convening authority accepted the staff judge advocate’s recommendation to
grant appellant five days of confinement credit for post-trial delay.


                                          2
KARGBO—ARMY 20150011

             ACC: No, Your Honor. I was drinking, so I didn’t keep
             track of the time, Your Honor.

             MJ: You were drinking alcohol that night?

             ACC: Yes, Your Honor.

             MJ: So you just kind of lost track of time and did not
             realize what time it was?

             ACC: Yes, Your Honor.

      Based on his questions and appellant’s responses, the military judge found
appellant’s plea provident and accepted it.

                              LAW AND DISCUSSION

       Appellant now alleges there is a substantial basis in law or fact to question the
providency of his plea of guilty to disobeying a lawful general order in violation of
Article 92, UCMJ. Specifically, appellant cites a case decided by our superior court
after appellant’s court-martial, United States v. Gifford, 75 M.J. 140 (C.A.A.F.
2016), for the proposition that the military judge must address the unstated mens rea
required for a conviction of an Article 92, UCMJ, offense. Appellant argues his plea
was improvident because: 1) there is no factual predicate to establish that he was, at
a minimum reckless, and 2) there is nothing in the record to suggest that he
understood his violation of the curfew must have been reckless in order for it to have
been criminal.

        Although the standard for this case is “abuse of discretion,” when the law
changes due to a case decided while an appellant’s case is on direct appeal, appellant
is entitled to avail himself of the new rule, even though the military judge did
nothing wrong. United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Judge
Ryan, concurring).

       Here, Gifford was decided after appellant’s court-martial, so the military
judge did not have the benefit of our superior court’s opinion during appellant’s
providence inquiry. As a result, the providence inquiry was not sufficient to
establish the mens rea required to make appellant’s violation of the lawful general
regulation wrongful and we will take appropriate action in our decretal paragraph.




                                           3
KARGBO—ARMY 20150011

                                  CONCLUSION

       The Specification of Additional Charge III and Additional Charge III are set
aside and DISMISSED. The remaining findings of guilty are AFFIRMED. We are
able to reassess the sentence on the basis of the error noted and do so after
conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Senior Judge CAMPANELLA and Judge HERRING concur.


                                       FOR THE COURT:
                                       FOR THE COURT:



                                       JOHN P. TAITT
                                       JOHNDeputy
                                       Chief P. TAITT
                                                  Clerk of Court
                                       Chief Deputy Clerk of Court




                                          4
