United States v. Evans , 73 M.J. 410 ( 2014 )

CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE TV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]