## UNITED STATES ARMY COUR T 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 Tr aining Center and Fort Polk Jacqueline L. Eman uel, Military Judge Colonel Keith C. Well, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Ba shore, JA; Captain Jack D. Einhorn, JA (on brief, supplemental brief & reply brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on br ief, supplemental br ief & reply brief).

28 September 2012

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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 ge neral order, in violation of Articles 86, 90, 91, a nd 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890, 891, 892 (2006) [herei nafter UCMJ]. Contrary to his plea, the military judge convicted appellant of communicating a thr eat in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2006). The convening authority approved the adjudged se ntence of a bad-conduct discharge, confinement for 100 days, and reduction to the grade of E-1. The convening authority credit ed appellant with 33 days of confinemen t against the approved sentence to confinement.ZELLOUS—ARMY 20110098

2 On 3 May 2012, we issu ed a decision in this case, affirmin g 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 th reat, in violat ion of Article 134, UCMJ, and as to the sentence; affirmed our decision in all other respects; and returned the record of trial to The Judg e 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 ca se 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 se rvice-discrediting co nduct. In light of Humphries , we are compelled to disa pprove the findi ng of guilt as to Specification 2 of Charge VI. Specification 2 of Charge VI does not contain allegations of terminal
elements under Article 1 34, UCMJ, and there is nothing in the record to satisfactorily establis h notice of the spec ific 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 specific ation is dismissed. The remaining findings of guilty are affirmed. Reas sessing the sentence on the basis of the error noted, the entire record, and in accordan ce 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 Judg e Baker in his conc urring op inion in Moffeit

, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for 75 days, and reduc tion to the grade of E-1. All rights, privileges, and property, of which appellan t 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: