UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

SIMS, COOK, and MAGGS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist MAC D. WARNER 

United States Army, Appellant 

ARMY 20100398 

Headquarters, V Corps 

Wendy P. Daknis, Military Judge 

Colonel Flora D. Darpino, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Matthew M. Miller, Acting Staff Judge Advocate (post-trial) 

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

Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief). 

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

Kenneth W. Borgnino, JA (on brief). 

24 May 2012 

-------------------------------- 

SUMMARY DISPOSITON 

--------------------------------

Per Curiam: 

 A military judge, sitting as a general court-martial, convicted appellant, 

contrary to his pleas, of one specification of aggravated sexual contact with a child, 

and two specifications of indecent language, in violation of Articles 120 and 134 of 

the Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2008) [hereinafter 

UCMJ]. Appellant was sentenced to a dishonorable discharge, confinement for 

eighteen months, total forfeiture of all pay and allowances, and reduction in rank to 

E-1. The convening authority (CA) approved the adjudged sentence. The CA 

deferred forfeitures effective 25 May 2010 until action on 22 Oct 2010. This case is 

before this court for review pursuant to Article 66, UCMJ. 
WARNER – ARMY 20100398 

2

DISCUSSION

Specifications 4 and 7 of Charge II concern appellants communication of 

indecent language. Appellants sole assignment of error on appeal is that these 

specifications failed to state an offense under Article 134, UCMJ, because they did 

not allege expressly that appellant’s conduct was prejudicial to good order and 

discipline or of a nature to bring discredit upon the Armed Forces. Trial defense 

counsel did not raise this objection to the specifications in pretrial proceedings, at 

trial, or in the post-trial Rule for Courts-Martial [hereinafter R.C.M.] 1105 

submission. Although defense counsel did challenge specification 7 of Charge II in 

a pretrial motion, the ground for the challenge was only that the language used was 

not indecent. See Pretrial Motion to Dismiss (Failure to State a Claim), Appellate 

Exhibit XIII, at 3. Defense counsel did not challenge specification 4 of Charge II on 

any grounds. We have reviewed this assignment of error in light of United States v. 

Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011); United States v. Fox, 34 M.J. 99 (C.M.A. 1986); United States v. Watkins, 21 

M.J. 208 (C.M.A. 1986); and United States v. Berner, 32 M.J. 570 (A.C.M.R. 1991). 

Although the specifications were defectively stated, we find no prejudice because 

appellant had notice and demonstrated actual knowledge that the government was 

required to prove one or both of the alternative terminal elements of Article 134, 

UCMJ. Trial defense counsel specifically identified the alternative terminal 

elements in the pretrial motion cited above and in a motion for a finding of not 

guilty at the close of the government’s case. Trial defense counsel also asserted that 

the government had failed to prove the element in closing argument. We therefore 

conclude that no relief is warranted. 

 

CONCLUSION 

We have considered appellant’s assignment of error, and those matters 

personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), in our review of the record and find them to be without merit. The 

findings of guilty and the sentence are AFFIRMED. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: