UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

YOB, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 MICHAEL E. ZELLOUS 

United States Army, Appellant 

ARMY 20110098 

Headquarters, Joint Readiness Training Center and Fort Polk 

Jacqueline L. Emanuel, Military Judge 

Colonel Keith C. Well, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief, 

supplemental brief & reply brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain Daniel D. Maurer, JA (on brief, supplemental brief & reply brief). 

28 September 2012 

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SUMMARY DISPOSITION ON REMAND 

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Per Curiam: 

A military judge sitting as a special court-martial convicted appellant in 

accordance with his pleas of failing to go to his appointed place of duty at the times 

prescribed, disobeying a superior commissioned officer, disobeying a 

noncommissioned officer, being disrespectful in deportment toward a 

noncommissioned officer, and failing to obey a lawful general order, in violation of 

Articles 86, 90, 91, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 

890, 891, 892 (2006) [hereinafter UCMJ]. Contrary to his plea, the military judge 

convicted appellant of communicating a threat in violation of Article 134, UCMJ, 10 

U.S.C. § 934 (2006). The convening authority approved the adjudged sentence of a 

bad-conduct discharge, confinement for 100 days, and reduction to the grade of E-1. 

The convening authority credited appellant with 33 days of confinement against the 

approved sentence to confinement. 
ZELLOUS—ARMY 20110098 

2

On 3 May 2012, we issued a decision in this case, affirming the findings of 

guilty and the sentence. United States v. Zellous, ARMY 20110098 (Army Ct. Crim. 

App. 3 May 2012). On 14 September 2012, our superior court reversed our decision 

as to Specification 2 of Charge VI, communicating a threat, in violation of Article 

134, UCMJ, and as to the sentence; affirmed our decision in all other respects; and 

returned the record of trial to The Judge Advocate General of the Army for remand 

to this court for further consideration in light of United States v. Humphries, 71 M.J. 

209 (C.A.A.F. 2012). United States v. Zellous, 71 M.J. ___ (C.A.A.F. 14 Sept. 

2012). Consequently, appellant’s case is again before this court for review under 

Article 66, UCMJ. 

Specification 2 of Charge VI failed to allege the terminal elements of 

prejudice to good order and discipline or service-discrediting conduct. In light of 

Humphries, we are compelled to disapprove the finding of guilt as to Specification 2 

of Charge VI. Specification 2 of Charge VI does not contain allegations of terminal 

elements under Article 134, UCMJ, and there is nothing in the record to 

satisfactorily establish notice of the specific need to defend against a terminal 

element as required under Humphries. Therefore, we now reverse appellant’s 

conviction for communicating a threat and dismiss the defective specification which 

failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011). 

On consideration of the entire record, the finding of guilty of Specification 2 

of Charge VI is set aside and that specification is dismissed. 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. Sales, 22 

M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), 

to include the factors identified by Judge Baker in his concurring opinion in Moffeit, 

the court affirms only so much of the sentence as provides for a bad-conduct 

discharge, confinement for 75 days, and reduction to the grade of E-1. All rights, 

privileges, and property, of which appellant has been deprived by virtue of that 

portion of his sentence set aside by this decision, are ordered restored. See UCMJ 

arts. 58b(c) and 75(a). 

 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: