## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Specialist BOBBY D. JAMES United States Army, Appellant

ARMY 20081163

Headquarters, Fort Lewis John M. Head, Military Judge Colonel Jeffrey C. McKitr ick, Staff Judge Advocate

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Major Peter Kage leiry, Jr., JA; Captain Barbara A. Snow-Martone, JA (on brief).

For Appellee: Major Christopher B. Burg ess, JA; Major Elle n S. Jennings, JA; Major Kirsten M. Do wdy, JA (on brief).

8 January 2013

--------------------------------------------------- SUMMARY DISPOSITION ON REMAND

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Per Curiam:

A panel of officer and en listed members, s itting as a genera l court-martial, convicted appellant, contrary to his pleas, of two specif ications of larceny and one specification of wearing unauth orized insignia, in viola tion of Articles 121 and 134 Uniform Code of Military Just ice, 10 U.S.C. §§ 921, 934 (2006) [herei nafter UCMJ]. The panel sentenced appellan t to a dishonorable discharge, confinement for two years, forfeiture of all pa y and allowances, a $10,000.00 fine , and reduction to the grade of E-1. Th e convening authority approved the adjudged sentence.

On 29 July 20 11, we issued a decision in this case, summaril y affirming the findings of guilty and the sentence. United States v. James , ARMY 20081163 (Army Ct. Crim. App. 29 July 2011). On 7 Decembe r 2011, our su perior court vacated our
decision and returned the re cord of trial to The Judge Advocate General of the Army for remand to this court for consideration in light of United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011), because no terminal element for the sp ecification chargedJAMES—ARMY 20081163

2 under Article 134, UCMJ, wa s expressly alleged. United States v. James , 71 M.J. 3 (C.A.A.F. 2011).

On 9 May 2012, we again issu ed a decision in this case, affirm ing the findings of guilty and the sentence. United States v. James , ARMY 20081163 (Army Ct. Crim. App. 9 May 2012). On 12 October 2012, our superior co urt reversed the portion of our decision as to the Specification of Charge II, and as to the sentence,
and affirmed our decision as to the rema ining charge and its specifications. United

States v. James , __ M.J. ___ (C.A.A.F. 2012). The court return ed the record of trial to The Judge Advocate Gene ral of the Army for remand to this court for further reconsideration in light of United States v. Humphries , 71 M.J. 209 (C .A.A.F. 2012).
Id . Consequently, appellant’s case is on ce again before this court for review under Article 66, UCMJ.

In the Specification of Charge II, appellant was char ged with wearing unauthorized insignia in violation of Ar ticle 134, UCMJ. See Manual for CourtsMartial

, United States (2008 ed.), pt. IV, ¶ 113.b. This specification fails to allege
the terminal elements of prejudice to good order and discip line or servicediscrediting conduct. Pursuant to Fosler and Humphries , it was error to omit the terminal elements from this specification, and in this case, we conclude that appellant was materially prejudiced as a result. UCMJ art. 59(a); Humphries

, 71 M.J. at 215. There is nothing in the record to satisfactorily establish notice of the need to defend against a terminal element a nd the evidence was controverted as to at
least one clause of Article 134, UCMJ. See Humphries , 71 M.J. at 215–16 (holding that to assess prejudice, “we look to the record to determine wh ether notice of the missing element is somewhere ex tant in the trial record, or whether the element is ‘essentially uncont roverted’” (citing United States v. Cotton , 535 U.S. 625, 633 (2002); Johnson v. United States , 520 U.S. 461, 4 70 (1997)). Accordingly, we must disapprove the findin gs of guilty as to the Article 134, UCMJ, offe nse previously
affirmed.

However, we are confident “that, absent a ny error, the sentence adjudged
would have been of at l east a certain severity.” United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986). In this case, the penalty landscape is minimally changed, as appellant remains convicted of the most serious offenses—invol ving the theft of more than $130,000.00—and woul d face a maximum senten ce to conf inement of fifteen years for the remain ing offenses. Therefore, in light of the remaining charges and their seri ous nature, we are co nfident the court woul d have adjudged a
sentence of at least a dishonorable discha rge, confinement for tw o years, forfeiture of all pay and allowances, a $10,000.00 fine, and reduction to the grade E-1.JAMES—ARMY 20081163

3 CONCLUSION

On consideration of the entire record, and in light of Humphries , the finding of guilty of the Specifica tion of Charge II, and Charge II, are set aside and that charge and specification are dismissed without prejudice. Reassessing the sentence
on the basis of the error no ted, the entire record, and in accordance with the principles of Sales and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identif ied by Judge Baker in hi s concurring opinion in Moffeit

, the approved sentence is AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: