UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               LIND, KRAUSS, and PENLAND
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Specialist KEVIN L. KINDLE
                             United States Army, Appellant

                                     ARMY 20120954

                           Headquarters, U.S. Army Alaska
                           Stefan R. Wolfe, Military Judge
                     Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Robert H. Meek, III, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Janae M. Lepir, JA; Captain Carrie L. Ward, JA (on brief).


                                     10 February 2015

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of failure to go to his appointed place of
duty; one specification of willful disobedience of a superior commissioned officer;
one specification of adultery; and one specification of incapacitation for
performance of duties through prior wrongful indulgence in intoxicating liquor in
violation of Articles 86, 90, and 134, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 886, 890, 934 (2006). A panel composed of officer and
enlisted members acquitted appellant of all offenses to which he pled not guilty.
The panel sentenced appellant to a bad-conduct discharge, confinement for
12 months, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence.
KINDLE — ARMY 20120954

       This case is before the court for review under Article 66, UCMJ. Appellant
raises one assignment of error, which warrants discussion but no relief. Appellant
also personally raises one matter pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), which warrants discussion and relief. While not raised by appellant,
we identify two additional errors warranting discussion and relief.

                    Providence of Appellant’s Plea of Guilty to Willful
                    Disobedience of a Superior Commissioned Officer

         Appellant was convicted of, inter alia, the following charge and specification:

                Charge II: Violation of the UCMJ, Article 90.

                Specification 1: In that [appellant], having received a
                lawful command from Captain [PV], his superior
                commissioned officer, then known by the said [appellant]
                to be his superior commissioned officer, to not consume
                alcohol, or words to that effect, did, at or near Fort
                Wainwright, Alaska, on or about 27 April 2012, willfully
                disobey the same.

       During the providence inquiry, 1 appellant expressed his understanding that, on
or about December 2011, his commander ordered him not to drink alcoho l. The
order’s purpose was to ensure appellant could satisfactorily and safely perform his
duty as a helicopter mechanic. 2 Focusing on a 27 April 2012 drinking incident, the
military judge and appellant discussed the charged willful disobedience:

                MJ: Okay. So what were your thoughts about when you
                decided to go to this bar and you knew there was the
                order. . . . [E]xplain your thought process.

                ACC: I just decided to go to the bar and have a couple
                drinks and ended up drinking more than I--I guess I
                planned on. So that was pretty much it. I was just going
                to go have a couple drinks.

                MJ: But when you went and had the drinks, . . . did you
                still know that this order . . . applied to you?

1
    There was no stipulation of fact in this case.
2
    The military judge concluded, and we agree, that the order was lawful.




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KINDLE — ARMY 20120954

             ACC: Okay.

             MJ: Okay. So what . . . were your thoughts about that
             order at the time.

             ACC: I was--I really wasn’t thinking about it, sir.

             MJ: What do you mean you--did you decide to disobey it
             is what I’m asking.

             ACC: Yes, sir.

      (emphasis added).

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We
apply this “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id.; see also UCMJ art. 45(a); Rule for Courts-Martial
[hereinafter R.C.M.] 910(e). Should an accused set up a matter inconsistent with his
plea at any time during the providence inquiry, “the military judge must either
resolve the apparent inconsistency or reject the plea.” United States v. Moon,
73 M.J. 382, 386 (C.A.A.F. 2014) (quoting United States v. Hines, 73 M.J. 119, 124
(C.A.A.F. 2014)).

       While the providence inquiry reflects appellant succumbed to his urge to
consume alcohol on 27 April 2012, appellant’s admissions to the judge created
ambiguity as to whether he willfully defied his commander’s order in doing so. The
Manual for Courts-Martial defines willful disobedience as “an intentional defiance
of authority” and notes that the mere failure to obey an order through “heedlessness,
remissness, or forgetfulness,” while not a vio lation of Article 90, UCMJ, may be a
violation of Article 92, UCMJ. Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶ 14.c.(2)(f). Appellant told the military judge that he
“really wasn’t thinking about [the order]” when he violated it. This created a matter
inconsistent with appellant’s plea, specifically, that his disobedience was a willful
defiance. A person cannot decide to willfully disobey an order he is not thinking
about. Appellant’s conclusory answer of “yes” to the judge’s question of whether
appellant decided to disobey the order does not resolve the inconsistency. The
military judge never clarified these conflicting statements made by appellant. We,
therefore, find a substantial basis to question appellant’s plea to willful disobedience
of a superior commissioned officer under Article 90, UCMJ, and will affirm the




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KINDLE — ARMY 20120954

lesser-included offense of failing to obey a lawful order in violation of Article 92,
UCMJ.

                Providence of Appellant’s Plea of Guilty to Adultery

       Appellant also pled guilty to Specification 3 of Charge IV, which alleged
adultery which was prejudicial to good order and discipline or service -discrediting.
The MCM provides that the adulterous conduct must be “ directly prejudicial to good
order and discipline.” MCM, pt. IV, ¶ 62.c.(2) (emphasis added). Examples of such
a direct prejudicial effect include adulterous conduct that “has an obvious, and
measurably divisive effect on unit or organization discipline, morale, or cohesion, or
is clearly detrimental to the authority or stature of or respect toward a
servicemember.” MCM, pt. IV, ¶ 62.c.(2). We hold the military judge did not elicit
an adequate factual basis to establish that appellant’s adulterous encounter with Ms.
[AL] was directly prejudicial to good order and discipline. See Inabinette, 66 M.J.
at 322; UCMJ art. 45(a); R.C.M. 910(e).

       We are satisfied, however, that appellant’s descriptions of the circumstances
surrounding his adultery evinced his understanding, knowing, and vo luntary
admission that his conduct was of a nature to bring discredit upon the armed forces.
“Discredit” in the context of an adultery charge means “to injure the reputation of
the armed forces and includes adulterous conduct that has a tendency, because of its
open or notorious nature, to bring the service into disrepute, make it subject to
public ridicule, or lower it in public esteem.” MCM, pt. IV, ¶ 62.c.(2) (emphasis
added). Adulterous conduct that is “private and discreet in nature may not be
service discrediting by this standard.” MCM, pt. IV, ¶ 62.c.(2). During the
providence inquiry, appellant admitted that at the party where the adultery occurred,
appellant’s friends, consisting of soldiers and civilians who knew appellant was
married to another woman, knew that he was engaging in sexual intercourse w ith
Ms. AL in an upstairs bedroom. Appellant explained to the m ilitary judge that,
under the circumstances, his actions tended to discredit his standing as a soldier.
We will take corrective action in our decretal paragraph to affirm only service
discrediting adultery.

                     Curative Instruction and Admissibility of
               Ms. AL’s Testimony during Pre-sentencing Proceedings

       The procedural context at trial is especially important here. The panel
originally found appellant guilty of aggravated sexual assault of Ms. AL while she
was substantially incapacitated. After completion of the entire pre-sentencing
case—which included one page of additional testimony from Ms. AL predicated
entirely on her being a victim of aggravated sexual assault—and before sentencing
arguments, the military judge decided that he erred in his findings instructions
regarding substantial incapacitation. He instructed the panel again on that specific



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KINDLE — ARMY 20120954

issue and directed them to re-deliberate on findings regarding the affected
specification. After receiving the amended findings instructions, the panel re-
deliberated and found appellant not guilty of the aggravated sexual assault.

       While the members were re-deliberating, the military judge asked: “Does
either party request any modifications to the sentencing proceedings if they were to
return a finding of not guilty or disagree with me and request additional sentencing
[instructions] if they were to return a finding of guilty?” Defense counsel did not
request a curative instruction to disregard Ms. AL’s pre -sentencing testimony or
object to the continued admissibility of Ms. AL’s testimony. After the military
judge gave the standard pre-sentencing instructions, the panel sentenced appellant as
described above.

      Appellant now argues Ms. AL’s sentencing testimony was not admissible
“under the military rules of evidence and . . . R.C.M. 1001,” therefore, the military
judge committed plain error by not curatively instructing the panel to disregard Ms.
AL’s testimony and by not excluding Ms. AL’s testimony during the pre-sentence
proceedings. The government concedes the military judge committed plain error.

        Rule for Courts-Martial 1005(f), which concerns “Instructions on sentence,”
states: “Failure to object to an instruction or to omission of an instruction before the
members close to deliberate on the sentence constitutes waiver of the objection in
the absence of plain error.” When reading the text of this rule, we consider our
superior court’s concern regarding the distinction between the terms “waiver” and
“forfeiture”: “Whereas forfeiture is the failure to make the timely asser tion of a
right, waiver is the ‘intentional relinquishment or abandonment of a known right.’”
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)). If an appellant has forfeited a right by failing to
raise it at trial, this court will review for plain error. Id. (citing United States v.
Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)). However, if an appellant
“intentionally waives a known right at trial, it is extinguished and may not be raised
on appeal.” Id. (citing Harcrow, 66 M.J. at 156). Since R.C.M. 1005(f) provides for
plain error review, the rule contemplates a failure to object as forfeiture rather than
waiver. 3 Similarly, where defense counsel does not object to inadmissible evidence,
appellate relief is normally forfeited absent plain error. United States v. Eslinger,
70 M.J. 193, 197-98 (C.A.A.F. 2011); see also Military Rule of Evidence 103(d)
(“Nothing in this rule precludes taking notice of plain errors that materially



3
 We acknowledge that mandatory sentencing instructions under R.C.M. 1005(e) are
not subject to R.C.M. 1105(f)’s waiver provision. See United States v. Miller,
58 M.J. 266, 270 (C.A.A.F. 2003).




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KINDLE — ARMY 20120954

prejudice substantial rights although they were not brought to the attention of the
military judge.”).

       In a plain error analysis, appellant has the burden of showing: (1) there was
an error; (2) the error was plain or obvious; and (3) the error materially prejudiced a
substantial right. United States v. Fisher, 67 M.J. 617, 620 (Army Ct. Crim. App.
2009). “An error is not ‘plain and obvious’ if, in the context of the entire trial,
[appellant] fails to show the military judge should be ‘faulted for taking no action’
even without an objection.” United States v. Burton, 67 M.J. 150, 153 (C.A.A.F.
2009) (quoting United States v. Maynard, 66 M.J. 242, 245 (C.A.A.F. 2008)).

       We decline to accept the government’s concession that the military judge
committed plain error by not curatively instructing the panel to disregard Ms. AL’s
testimony or by not excluding Ms. AL’s testimony during pre-sentencing
proceedings. First, appellant waived the issue. The military judge gave appellant
the opportunity to request any additional sentencing instructions or remedies if the
panel returned a verdict of not guilty of the aggravated sexual assault specification.
Appellant affirmatively declined to request such an instruction , thereby waiving the
issue on appeal. Appellant also did not object to the admissibility of Ms. AL’s
testimony or make a motion to strike Ms. AL’s testimony after the panel acquitted
him of aggravated sexual assault, again waiving the issue on appeal. Further, the
military judge had no sua sponte duty to give such an instruction absent a defense
request; it was not a “required instruction” under R.C.M. 1005(e).

      Second, even if appellant did not waive the issue, appellant has not met his
burden to establish plain error. Assuming without deciding the military judge erred,
we are nonetheless confident that any error was neither plain, obvious, nor
prejudicial. Ms. AL’s testimony was only one-page in length. Trial counsel did not
mention Ms. AL’s testimony during sentencing argument. Finally, considering the
panel’s re-deliberated finding of not guilty and that it came shortly after Ms. AL’s
pre-sentencing testimony, appellant’s defense c ounsel would have reason to
conclude the panel found her latter testimony incredible and, as a result, found
appellant not guilty of aggravated sexual assault when given an additional
opportunity to do so. Extending this logic, it is additionally plausibl e that trial
defense counsel wanted the panel to continue considering Ms. AL’s incredibility as
they deliberated on an appropriate sentence.

                                   Post-trial Delay

        In his Grostefon matters, appellant personally complains of excessive post-
trial delay. Appellant was sentenced on 12 October 2012. The record of trial was
684 pages in length. On 21 February 2013, 132 days after completion of appellant’s
trial, defense counsel received the record for review. Defense counsel completed his
errata on 25 February 2013, 4 days later. The military judge received the record of



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KINDLE — ARMY 20120954

trial on 21 March 2013, 24 days later. The military judge authenticated the record of
trial on 6 May 2013, 46 days later. The staff judge advocate’s recommendation was
signed on 17 May 2013, 11 days after authentication. The record of trial and
recommendation were served on appellant on 29 May 2013, 12 days later. On
27 June 2013, 29 days after receiving his copy of the record and the
recommendation, appellant submitted his R.C.M. 1105 matters to the convening
authority complaining, inter alia, that his right to speedy post-trial review was
violated. The addendum was prepared 6 days later on 3 July 2013. The staff judge
advocate recommended no clemency. On 8 July 2013, the convening authority took
action. A total of 269 days had elapsed since the conclusion of appellant’s trial .

       We review de novo appellant’s claim that he has been denied his due process
right to a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). Our superior court has adopted the four factor test of Barker v.
Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process violation has
occurred: (1) the length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of the right to timely review and appeal; and (4) prejudice. Id.
We presume unreasonable delay when more than 120 days have elapsed between
completion of an appellant’s trial and action by the convening authority. Id. at 142.
This presumption requires analysis of the remaining three factors. Id.

       In this case, the total post-trial processing time from sentence to action was
269 days. Turning to the second factor—the reasons for the delay—both the military
judge and the government submitted contemporaneous memoranda explaining the
delay. The judge’s explanation stated the delay in authentication (46 days) was due
to the ten trials he presided over and the five other records of trial he authenticated
during the same period of time. The government’s memorandum, which contained
multiple errors regarding relevant dates, explained that the transcription delay was a
result of “short staffing of court-reporters at the time of the trial” and that additional
time was used for “mail transport . . . due to the distance between the military judge
and [the criminal law] office.” The military judge’s explanation is reasonable, the
government’s explanation is not. With regard to delay caused by appellant, he
waited 29 days after receipt of the record and recommendation to file his post-trial
matters. However, we only attribute 19 of those days to him because R.C.M.
1105(c)(1) authorizes a 10-day period for submitting clemency matters. We resolve
the first and second factors in appellant’s favor. Turning to the third factor,
appellant complained of the unreasonable post -trial processing delay multiple times.
Defense counsel submitted written requests on 20 December 2012, 5 February 2013
and 9 May 2013, asking the government to speed the post-trial processing of the
case. Defense counsel again requested relief as part of appellant’s R.C.M. 1105
submissions. In summary, appellant asserted his right to speedy post -trial review in
a timely fashion. However, in assessing the fourth factor under Moreno, appellant
has failed to demonstrate any prejudice resulting from the dilatory post-trial
processing in his case. See generally United States v. Arriaga, 70 M.J. 51, 57-59



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KINDLE — ARMY 20120954

(C.A.A.F. 2011) (finding prejudice for oppressive incarceration pending appeal
where appellant obtained substantive and sentence relief at the service court and
established that had the case been processed within the timelines set forth in
Moreno, he would not have spent an additional 51 days in prison).

       Even when there is no showing of prejudice, we may nonetheless find a due
process violation if “in balancing the other three factors, the delay is so egregious
that tolerating it would adversely affect the public’s perception of the fairness and
integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). Having considered the lengthy delay, the government’s
contemporaneous explanations, and appellant’s multiple timely assertions of his
right to speedy post-trial review, we hold that the post-trial delay in this case is not
so egregious as to constitute a due-process violation under Toohey.

       Finally, we must also review the appropriateness of appellant’s sentence in
light of the lengthy post-trial processing. See UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sentence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post -trial delay.”). The lengthy post-trial
processing, the government’s inadequate explanation, and appellant’s repeated
requests for speedy post-trial review warrant sentence relief.

                                    CONCLUSION

        We affirm only so much of the finding of guilty of Specification 1 of Charge
II that extends to the lesser-included offense of failure to obey a lawful order in
violation of Article 92, UCMJ.

      We affirm only so much of the finding of guilty of Specification 3 of Charge
IV as provides:

             In that Specialist Kevin L. Kindle, U.S. Army, a married
             man, did, at or near Fort Wainwright, Alaska, between on
             or about 10 December 2011 and on or about 11 December
             2011, wrongfully have sexual intercourse with Ms. [AL], a
             woman not his wife, and that said conduct was of a nature
             to bring discredit upon the armed forces.

      The remaining findings of guilty are AFFIRMED.

      We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986). We recognize that appellant was sentenced by a panel.
The gravamen of the findings of guilty has significantly changed because of our


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KINDLE — ARMY 20120954

decision with respect to Specification 1 of Charge II . The sentencing landscape has
also drastically changed; the maximum confinement has decreased from six years
and three months to one year and nine months. 4 MCM, pt. IV, ¶¶ 10.e.(1); 14.e.(2);
16.e(2); 62.e; 76.e. Nonetheless, we have the experience and familiarity with the
types of offenses of which appellant remains convicted to reliably determine what
sentence would have been imposed at trial absent the errors noted above. Appellant
remains convicted of failure to obey an order issued by a superior commissioned
officer. Appellant’s three prior civilian convictions —in 2007 for disorderly
conduct, in 2009 for disorderly conduct, and in 2012 for driving under the influence
of alcohol or a controlled substance—were properly admitted during pre-sentencing
proceedings and also remain relevant in aggravation.

       Reassessing the sentence on the basis of the errors noted and the entire record,
we are confident the panel would have sentenced appellant to at least a bad-conduct
discharge, confinement for eight months , and reduction to the grade of E-1. See
Sales, 22 M.J. at 307-08.

       In light of the excessive post-trial delay, the entire record, and the particular
facts and circumstances of this case, we determine it is also appropriate to reduce
appellant’s sentence to confinement by one month. See UCMJ art. 66(c).

       We AFFIRM only so much of the sentence as provides for a bad-conduct
discharge, confinement for seven months, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings and sentence set aside by this decision, are ordered
restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge LIND and Judge KRAUSS concur.
                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:



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




4
  The military judge merged two of the offenses for sentencing: failure to repair and
incapacitation for performance of duties through prior wrongful indulgence in
intoxicating liquor.




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