UNITED STATES ARMY COURT 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. McKitrick, Staff Judge Advocate 

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Peter Kageleiry, Jr., JA; Captain Barbara A. Snow-Martone, JA 

(on brief). 

For Appellee: Major Christopher B. Burgess, JA; Major Ellen S. Jennings, JA; 

Major Kirsten M. Dowdy, JA (on brief). 

8 January 2013 

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SUMMARY DISPOSITION ON REMAND 

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Per Curiam: 

 A panel of officer and enlisted members, sitting as a general court-martial, 

convicted appellant, contrary to his pleas, of two specifications of larceny and one 

specification of wearing unauthorized insignia, in violation of Articles 121 and 134 

Uniform Code of Military Justice, 10 U.S.C. §§ 921, 934 (2006) [hereinafter UCMJ]. 

The panel sentenced appellant to a dishonorable discharge, confinement for two 

years, forfeiture of all pay and allowances, a $10,000.00 fine, and reduction to the 

grade of E-1. The convening authority approved the adjudged sentence. 

 On 29 July 2011, we issued a decision in this case, summarily affirming the 

findings of guilty and the sentence. United States v. James, ARMY 20081163 (Army 

Ct. Crim. App. 29 July 2011). On 7 December 2011, our superior court vacated our 

decision and returned the record 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 specification charged 
JAMES—ARMY 20081163 

2

under Article 134, UCMJ, was expressly alleged. United States v. James, 71 M.J. 3 

(C.A.A.F. 2011). 

On 9 May 2012, we again issued a decision in this case, affirming 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 court 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 remaining charge and its specifications. United 

States v. James, __ M.J. ___ (C.A.A.F. 2012). The court returned the record of trial 

to The Judge Advocate General 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 once again before this court for review under 

Article 66, UCMJ. 

In the Specification of Charge II, appellant was charged with wearing 

unauthorized insignia in violation of Article 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 discipline 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 and 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 whether notice of the 

missing element is somewhere extant in the trial record, or whether the element is 

‘essentially uncontroverted’” (citing United States v. Cotton, 535 U.S. 625, 633 

(2002); Johnson v. United States, 520 U.S. 461, 470 (1997)). Accordingly, we must 

disapprove the findings of guilty as to the Article 134, UCMJ, offense previously 

affirmed. 

However, we are confident “that, absent any error, the sentence adjudged 

would have been of at least 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—involving the theft of 

more than $130,000.00—and would face a maximum sentence to confinement of 

fifteen years for the remaining offenses. Therefore, in light of the remaining 

charges and their serious nature, we are confident the court would have adjudged a 

sentence of at least a dishonorable discharge, confinement for two years, forfeiture 

of all pay and allowances, a $10,000.00 fine, and reduction to the grade E-1. 
JAMES—ARMY 20081163 

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CONCLUSION

On consideration of the entire record, and in light of Humphries, the finding 

of guilty of the Specification 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 noted, 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 identified by Judge Baker in his 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: