UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, M.G. MILLER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
TRAVIS W. WORLEY
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201400381
SPECIAL COURT-MARTIAL
Sentence Adjudged: 29 July 2014.
Military Judge: LtCol Valerie Danyluk, USMC.
Convening Authority: Commanding Officer, Chemical
Biological Incident Response Force, Indian Head, MD.
Staff Judge Advocate's Recommendation: LtCol G.W. Riggs,
USMC.
For Appellant: CAPT Jill R. James, USN.
For Appellee: Mr. Brian K. Keller, Esq.
23 April 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
MILLER, Judge:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of making a false official statement, one
specification of larceny, and one specification of forgery in
violation of Articles 107, 121, and 123, Uniform Code of
Military Justice, 10 U.S.C. §§ 907, 921, and 923. The military
judge sentenced the appellant to confinement for eleven months,
reduction to pay grade E-1, forfeiture of $500.00 pay per month
for twelve months, and a bad-conduct discharge. The convening
authority (CA) disapproved the adjudged forfeitures but
otherwise approved the sentence as adjudged. Pursuant to a
pretrial agreement the CA suspended all confinement adjudged for
twelve months from the date of the convening authority’s action,
and disapproved all forfeitures adjudged. However, the pretrial
agreement did not include an agreement that confinement would be
deferred from the date of sentencing (29 July 2014) until the
date of the CA’s action (1 October 2014), a period of 64 days.
As a result, by the date of the CA’s action 64 days of adjudged
confinement had already run and could not be suspended. See RULE
FOR COURTS-MARTIAL 1113(e)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). We will take corrective action in our decretal
paragraph.
Although submitted without assignment of error, we find the
appellant’s guilty plea to larceny under the specification of
Charge II improvident as to the dates of the offense. After
taking corrective action in our decretal paragraph, we conclude
that the remaining findings and the sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.
Improvident Plea
Before accepting a guilty plea, the military judge must
find there is a sufficient factual basis to satisfy each and
every element of the pled offense. United States v. Care, 40
C.M.R. 247, 253 (C.M.A. 1969). The standard of review to
determine whether a plea is provident is whether the record
reveals a substantial basis in law or fact for questioning the
plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008).
The appellant was charged with and pled guilty to larceny
of military property by stealing government Basic Allowance for
Housing payments (BAH) in excess of $40,000.00 between on or
about 5 October 2011 and on or about 31 October 2013. As
alleged, this offense has four elements: (a) That between on or
about 5 October 2011 and on or about 31 October 2013, the
appellant wrongfully took, withheld or obtained certain
property, to wit: BAH payments in U.S. currency; (b) that the
property belonged to the United States Government; (c) That the
property was of a value in excess of $40,000.00; and (d) that
the taking, withholding or obtaining was with the intent to
permanently deprive or defraud the United States Government of
the use and benefit of the property or permanently to
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appropriate the property to his own use or the use of someone
other than the owner. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), Part IV, ¶ 46b(1).
The impetus for the charge was that the appellant continued
to collect BAH at the with dependents rate (BAH-D) even though
his wife had obtained a legal divorce on 05 October 2011, which
ended the appellant’s entitlement to BAH-D. However, the
appellant informed the military judge that he was not aware that
he was divorced, and therefore not aware he was not entitled to
BAH-D, until June of 2012. We therefore have “a substantial
basis in law or fact for questioning the providency of the
appellant’s plea” that he was guilty of larceny by taking before
this period. That stated, the military judge explained larceny
by withholding and elicited a sufficient factual basis to
support the appellant’s plea of guilty to that offense
commencing on June 2012. We therefore find the appellant
providently pled guilty to larceny of the specified amount.
We therefore affirm only so much of the specification that
alleges as follows: “In that Corporal Travis W. Worley, U.S.
Marine Corps, on active duty, did, at or near Chemical
Biological Incident Response Force, Indian Head, Maryland,
between on or about June 2012 and on or about 31 October 2013,
steal Basic Allowance for Housing payments, a value in excess of
forty-thousand dollars ($40,000.00), U.S. currency, the property
of the United States Government.”
Conclusion
The finding of guilty as to the Specification of Charge II
as excepted and substituted and the remaining findings of guilty
are affirmed. We have reassessed the sentence in accordance
with United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998),
United States v. Peoples, 29 M.J. 426, 428 (C.M.A. 1990), and
United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).
Taking into account the appellant’s conduct in committing the
affirmed offense as well as the offenses to which he providently
pled guilty, we are satisfied that the military judge would have
adjudged no lesser sentence for the affirmed charges and
specifications. Accordingly, we affirm the sentence as approved
by the CA.
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The supplemental court-martial order will reflect that all
confinement in excess of 64 days was suspended for a period of
twelve months from 1 October 2014.
Senior Judge FISCHER and Judge KING concur.
For the Court
R.H. TROIDL
Clerk of Court
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