UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist CORY D. KELLY
United States Army, Appellant
ARMY 20120990
Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell (pretrial)
Headquarters, Fort Campbell (action)
Steven E. Walburn, Military Judge
Colonel Jeff A. Bovarnick, Staff Judge Advocate
For Appellant: Captain A. Jason Nef, JA; Captain Susrut A. Carpenter, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).
26 August 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general order, one
specification of wrongfully and knowingly possessing child pornography, and four
specifications of communicating indecent language to a child under sixteen years, in
violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
892, 934 (2006) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1.
Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which warrants discussion and relief. * We
*
The matters personally submitted by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit.
KELLY—ARMY 20120990
conclude the military judge failed to elicit an adequate factual basis as to whether
appellant’s misconduct charged under Article 134, UCMJ was prejudicial to good
order and discipline. Although not raised by the parties, we also consolidate two
specifications of communicating indecent language to a child under sixteen years.
“During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). We review a
military judge’s decision to accept a plea for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).
The government charged appellant with wrongfully and knowingly possessing
child pornography and communicating indecent language to a child under sixteen
years, “which conduct was prejudicial to good order and discipline and of a nature to
bring discredit upon the [a]rmed [f]orces,” a violation of Clauses 1 and 2 of Article
134, UCMJ. See Manual for Courts–Martial, United States (2008 ed.), pt. IV, ¶¶
60.c.(2), (3). As our superior court recently reiterated, “[t]he . . . clauses of Article
134 constitute ‘. . . distinct and separate parts.’” United States v. Fosler, 70 M.J.
225, 230 (C.A.A.F. 2011) (quoting United States v. Frantz, 2 U.S.C.M.A. 161, 163,
7 C.M.R. 37, 39 (1953)). It follows, then that “[v]iolation of one clause does not
necessarily lead to a violation of the other . . . .” Id. More specifically to the case
before us, the court in Fosler went on to state that “disorders and neglects to the
prejudice of good order and discipline” are not synonymous with “conduct of a
nature to bring discredit upon the armed forces . . . .” Id. Thus, if a specification
alleges both Clause 1 and 2, then there must be a substantial basis in fact in the
record to support a finding of guilty as to both.
Given the facts of this case, there is no question that appellant wrongfully and
knowingly possessed child pornography and on multiple occasions communicated
indecent language to a child under sixteen years. Moreover, the plea inquiry
established facts demonstrating that appellant’s conduct was service-discrediting.
The plea inquiry, however, failed to elicit an adequate factual basis regarding the
prejudicial effect of appellant’s misconduct on good order and discipline in the
armed forces. Here, the military judge properly defined and explained the term
“prejudice to good order and discipline,” as, inter alia, “those acts in which the
prejudice is reasonably direct and palpable . . .” See also MCM, Part IV, ¶
60.c.(2)(a).
While appellant acknowledged that his conduct violated Clause 1, his factual
explanation as to why his conduct violated Clause 1 is insufficient. For both
offenses, he stated that his conduct violated Clause 1 if the public or other soldiers
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KELLY—ARMY 20120990
knew about his misconduct. He never stated that the public and other soldiers were
aware of his conduct. Put another way, he explained why his conduct would tend to
bring discredit upon the armed forces, but not why his conduct had a reasonably
direct and palpable effect upon good order and discipline. As a result, we find a
substantial basis in law and fact to question the providence of appellant’s plea to
committing conduct prejudicial to good order and discipline in violation of Clause 1
of Article 134, UCMJ.
We also note two of appellant’s convictions for communicating indecent
language to a child under sixteen years, Specifications 4 and 5 of Charge II,
respectively, occurred on 14 May 2011. Nothing in the record indicates that these
offenses occurred separately or were otherwise distinct criminal transactions.
Accordingly, we find that these specifications unreasonably exaggerate appellant’s
criminality. See United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). We
consolidate the specifications as a remedy.
CONCLUSION
On consideration of the entire record, as well as those matters personally
raised by appellant pursuant to Grostefon, the court affirms only so much of the
finding of guilty of Specification 1 of Charge II as follows:
In that [appellant], U.S. Army, did, at or near Forward
Operating Base Tarin Kowt, Afghanistan, on or about 29
June 2011, wrongfully and knowingly possess
approximately 10 images of child pornography, which
conduct was of a nature to bring discredit upon the Armed
Forces.
The court only affirms so much of Specification 2 of Charge II as follows:
In that [appellant], U.S. Army, did, at or near Fords, New
Jersey, on or about 29 March 2011, in writing
communicate to [LJ], a child under the age of 16 years,
certain indecent language, to wit: “I’d cum on ur chest
then on ur face”, or words to that effect, which conduct
was of a nature to bring discredit upon the Armed Forces.
The court only affirms so much of Specification 3 of Charge II as follows:
In that [appellant], U.S. Army, did, at or near Forward
Operating Base Tarin Kowt, Afghanistan, on or about 25
February 2011, in writing communicate to [LJ], a child
under the age of 16 years, certain indecent language, to
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KELLY—ARMY 20120990
wit: “yea I’ll spank u and fuck u in the ass”, or words to
that effect, which conduct was of a nature to bring
discredit upon the Armed Forces.
Specifications 4 and 5 of Charge II are consolidated into Specification 4 of Charge
II as follows:
In that [appellant], U.S. Army, did, at or near Forward
Operating Base Tarin Kowt, Afghanistan, on or about 14
May 2011, in writing communicate to [LJ], a child under
the age of 16 years, certain indecent language, to wit: “so
I can pull it out and handcuff ur hands behind ur back and
make u cry for my dick” and “then pound ur pussy and
right before i cum ill shoot it in ur mouth”, or words to
that effect, which conduct was of a nature to bring
discredit upon the Armed Forces.
The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the
basis of the errors noted, the entire record, 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. 2014) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986), the sentence
as approved by the convening authority 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.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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