United States v. Private E1 ASHLEN N. GIBSON ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK  , HAIGHT, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ASHLEN N. GIBSON
United States Army, Appellant
ARMY 20140112
Headquarters, United States Army Maneuver Center of Excellence
Charles A. Kuhfahl, Jr., Military Judge
Colonel Charles C. Poché, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Captain Robert H. Meek, III, JA.
For Appellee: Major A.G. Courie, III, JA.
18 August 2015
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SUMMARY DISPOSITION
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PENLAND, Judge:
A military judge sitting as a general court-martial convicted appellant,
consistent with her pleas, of wrongfully using provoking gestures, assault
consummated by battery, knowingly furnishing an alcoholic beverage to a person
under 21 years of age, and two specifications of wrongfully communicating a threat,
in violation of Articles 117, 128, and 134 of the Uniform Code of Military Justice,
10 U.S.C. §§ 917, 928, 934 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge and nine months confinement, and
the convening authority approved the adjudged sentence.
We review appellant’s case pursuant to Article 66, UCMJ, and grant relief
based on the partially insufficient providence inquiry. Appellant submitted a merits
pleading, and we have reviewed those matters personally raised by appellant under
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); they lack merit.

Senior Judge COOK took final action in this case prior to his retirement.
GIBSON—ARMY 20140112
In Specification 3 of Charge II, appellant was charged with, inter alia,
communicating a threat to injure Private KL “by shooting her . . . .” Pleading guilty
to this specification by exceptions and substitutions, appellant admitted that, instead,
she threatened PVT KL with a different form of violence. Nonetheless, the quoted
phrase, “by shooting her . . .” remains in the conviction now under review.
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)). The
court applies 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
910(e). Considering the providence inquiry, a substantial basis exists here.
CONCLUSION
We affirm only so much of the finding of guilty of Specification 3 of Charge
II as provides:
Charge II: Article 134. Specification 3. In that Private (E-
1) Ashlen N. Gibson, U.S. Army, did, at or near Fort
Benning, Georgia, on or about 19 August 2013, wrongfully
communicate to Private (E-1) KML a threat to injure Private
L, to wit: “I will kick your ass too,” or words to that effect,
and that said conduct was to the prejudice of good order and
discipline in the armed forces and 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 error noted, the entire record, and
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 are confident the military judge would have adjudged the same sentence absent
the error. The approved sentence is AFFIRMED. All rights, privileges, and
property, of which appellant has been deprived by virtue of the portions of the
findings set aside by this decision are ordered restored.
Senior Judge COOK and Judge HAIGHT concur.
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GIBSON—ARMY 20140112
FOR
FOR THE
THE COURT:
COURT:
MALCOLM
MALCOLM H.H.
SQUIRES,
SQUIRESJR.
JR.
Clerk of Court
Clerk of Court
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