UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist BENJAMIN M. ACKMAN 

United States Army, Appellant 

ARMY 20090615 

Headquarters, United States Army Maneuver Center of Excellence 

James Pohl, Military Judge 

Colonel Tracy A. Barnes, Staff Judge Advocate 

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

Jamison, JA; Major Laura R. Kesler, JA; Captain E. Patrick Gilman, JA (on brief). 

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; 

Major Adam S. Kazin, JA; Captain Joshua W. Johnson, JA (on brief). 

8 August 2012 

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SUMMARY DISPOSITION ON REMAND 

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Per Curiam: 

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

pursuant to his pleas, of two specifications of wrongful use of cocaine in violation of 

Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2006) [hereinafter 

UCMJ]. At the same general court-martial, a panel of officer and enlisted members 

convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent 

conduct, and adultery, in violation of Articles 120 and 134, UCMJ.1

 See Manual for 

Courts-Martial, United States (2012 ed.), pt. IV, ¶ 62.b. The panel sentenced 

appellant to a dishonorable discharge, confinement for four years, forfeiture of all 

pay and allowances, and reduction to the grade of E-1. The convening authority 

 

1

 One specification of unlawful entry in violation of Article 134, UCMJ, was 

dismissed. 
ACKMAN—ARMY 20090615 

2 

disapproved one year of confinement, waived a portion of the automatic forfeitures 

for six months,2

 and otherwise approved the remainder of the sentence. 

On 30 November 2011, we issued a decision in this case, affirming the 

findings of guilty and the sentence. On 10 July 2012, our superior court reversed 

our decision as to Specification 1 of Charge II (renumbered) (adultery in violation of 

Article 134, UCMJ) and as to the sentence, 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). 

Consequently, appellant’s case is again before this court for review under Article 66, 

UCMJ. 

In light of Humphries, we are compelled to disapprove the finding of guilt as 

to the Article 134, UCMJ, offense previously affirmed. The specification does not 

contain allegations of terminal elements under Article 134, UCMJ, and there is 

nothing in the record to satisfactorily establish notice of the need to defend against a 

terminal element as required under Humphries. Therefore, we now reverse 

appellant’s conviction for adultery 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 1 

of Charge II (renumbered) 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 

 

2

 Prior to action, the convening authority approved appellant’s request for waiver of 

automatic forfeitures in the amount of $1399.50 pay per month (the basic pay 

amount for an E1 in 2009). This waiver was approved for a six-month period to 

begin after action. Thereafter, the convening authority took action and reiterated the 

previously approved waiver of forfeitures, directing payment to Mrs. Tracy Ackman 

for a period of six months. However, the convening authority also approved the 

adjudged sentence to total forfeiture of all pay and allowances. Thus, although the 

automatic forfeitures were waived, the adjudged forfeitures were still in effect, 

thereby leaving no forfeitures to pay for the benefit of Mrs. Ackman. In order to 

effectuate the clear intent of the convening authority and in the spirit of judicial 

economy, we will set aside that portion of the sentence that included total forfeiture 

of all pay and allowances in our decretal paragraph. To the extent that the Defense 

Finance and Accounting Service did not execute the convening authority’s waiver of 

forfeitures of $1399.50 pay per month for a six month period, we order retroactive 

payment to Mrs. Tracy Ackman. 
ACKMAN—ARMY 20090615 

3 

(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 

dishonorable discharge, confinement for three years, 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: