United States v. Private First Class ALVIN J. FOGLE, ARMY 20140534

Background

PFC Alvin J. Fogle pleaded guilty at a general court-martial to conspiracy to obstruct justice (Art. 81), false official statement (Art. 107), and sexual assault (Art. 134). The military judge convicted on the pleas and sentenced him to a dishonorable discharge, six years confinement (reduced on review), and reduction to E-1. The convening authority approved a dishonorable discharge, 23 months and 15 days confinement (after treaty of the PTA and post-trial relief), and reduction to E-1.
The charged conspiracy alleged that Fogle and two co-accused agreed to give false statements to CID about sexual activity with the alleged victim and the existence of videos, intending to obstruct justice.
Fogle entered a pretrial agreement capping confinement and a stipulation of fact. During providence inquiry he admitted the plan to lie to CID and stated he knew lying would be "prejudicial to good order and discipline."
The stipulation and the providence colloquy were conclusory concerning the terminal element of the underlying Article 134 offense (i.e., that the conduct was to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces).
The Army Court found the military judge did not elicit an adequate factual predicate showing Fogle’s personal understanding of how his conduct met the terminal element, and concluded the guilty plea to the conspiracy count was improvident.
The court set aside the finding of guilty to the Specification of Charge I (conspiracy), affirmed the remaining findings, reassessed the sentence, and affirmed the sentence as approved by the convening authority.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the military judge elicited an adequate factual predicate for the terminal element of the underlying Art. 134 offense when accepting the guilty plea to conspiracy to obstruct justice	The government argued the colloquy and stipulation showed Fogle knew the plan to lie and that the lies would be prejudicial to good order and discipline, supporting the terminal element	Fogle (via Grostefon submission) argued the military judge failed to obtain facts showing his personal understanding of how his conduct was prejudicial to good order and discipline or service-discrediting	The court held the plea was improvident as the inquiry did not establish a personal factual basis for the terminal element; guilty finding on the conspiracy specification was set aside
Whether the remaining convictions and sentence could be affirmed and the sentence reassessed after setting aside the conspiracy conviction	Govt argued the remaining findings and punishment landscape permitted reassessment to the approved sentence	Fogle implicitly argued error required relief beyond reassessment (but did not prevail)	The court affirmed the other findings, reassessed the sentence under Winckelmann factors, and affirmed the convening authority–approved sentence

Key Cases Cited

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (procedures for raising issues not on the record; appellant submissions)
United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (standard of review for plea providence; substantial-basis test)
United States v. Davenport, 9 M.J. 364 (C.M.A. 1980) (military judge must elicit factual circumstances supporting plea)
United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996) (distinguishing legal conclusions from factual predicate in plea inquiries)
United States v. Care, 18 U.S.C.M.A. 535 (C.M.A. 1969) (Care requirements for plea inquiries and factual basis)
United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013) (plea inquiry must show accused’s personal understanding of criminality)
United States v. Perez, 33 M.J. 1050 (C.M.R. 1991) (terminal element: prejudice must be direct and palpable)
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (factors for sentence reassessment on appeal)