## UNITED STATES ARMY COUR T 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 J udge Advocate

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Ca ptain E. Patrick Gilman, JA (on brief).

For Appellee: Colonel Mich ael E. Mulligan, JA; Majo r Amber J. Williams, JA; Major Adam S. Kazin, JA; Captain Joshua W. Johnson, JA (on brief).

8 August 2012

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

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

Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, pursuant to his pleas, of two specificatio ns of wrongful use of cocaine in vi olation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2 006) [hereinafter UCMJ]. At the same general court-martial, a panel of o fficer and enlisted members convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent conduct, and adultery, in violatio n of Articles 12 0 and 134, UCMJ. 1 See Manual for
Courts-Martial

, United States (2012 ed.), pt. IV, ¶ 6 2.b. The panel sentenced appellant to a dishonorable discharge, conf inement for four years, forfeiture of all pay and allowances, and redu ction to the grade of E- 1. The convening authority

1 One specification of unl awful entry in violation of Article 134, UCMJ, was
dismissed.ACKMAN—ARMY 20090615

2 disapproved one year of confinement, waived a portion of the automa tic forfeitures for six months, 2 and otherwise approv ed the remainder of the sentence.

On 30 November 2011, we issued a decision in th is case, affirming the findings of guilty and the sentence. On 10 July 2012, our superi or court reversed our decision as to Specificat ion 1 of Charge II (renumbered ) (adultery in violation of Article 134, UCMJ) and as to the sentence, and returned th e 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 befo re this court for revi ew under Article 66,

UCMJ.

In light of Humphries , we are compelled to disapprove the fi nding of guilt as to the Article 134, UCMJ, offe nse previously affirmed. The specification does not contain allegations of terminal elements under Article 134, UCMJ, and there is nothing in the reco rd to satisfactorily esta blish 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 specifi cation is dismissed. The remaining findings of guilty are affirmed. Reassessing th e 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 ap proved appellant’s request for waiver of
automatic forfeitures in the amount of $1399.50 pay pe r month (the basic pay amount for an E1 in 2009). This waiver was approved for a six-month period to begin after action. Thereaft er, the convening authority t ook 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 al lowances. 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 convenin g authority and in th e spirit of judicial economy, we will set asid e 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 execu te the convening authority’s waiver of forfeitures of $1399.50 pay per month for a six month pe riod, we order retroactive payment to Mrs. Tracy Ackman.ACKMAN—ARMY 20090615

3 (C.A.A.F. 2006), to include th e factors identified by Judge Baker in his concurring opinion in Moffeit , the court affirms only so much of the senten ce as provides for a dishonorable discharge, confinement for thre e years, and reducti on 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 as ide 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: