UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 ROBERT L. CONRADY 

United States Army, Appellant 

ARMY 20080534 

Headquarters, Joint Readiness Training Center and Fort Polk 

Victor L. Horton, Military Judge 

Colonel James D. Key, Staff Judge Advocate 

For Appellant: William E. Cassara, Esquire (argued); Captain Sarah E. Wolf, JA; 

William E. Cassara, Esquire (on brief); Captain Michael E. Korte, JA; William E. 

Cassara, Esquire (on reply brief). 

For Appellee: Captain Stephen E. Latino, JA (argued); Colonel Michael E. 

Mulligan, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B. 

Burgess, JA; Major Lynn I. Williams, JA (on brief). 

21 December 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, 

contrary to his pleas, of two specifications of rape of a child under the age of 

twelve, one specification of sodomy with a child under the age of twelve, one 

specification of assault consummated by a battery upon a child under the age of 

sixteen, and three specifications of indecent acts with a child, in violation of 

Articles 120, 125, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 

§§ 920, 925, 928, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced 

appellant to thirty-five years of confinement and a dishonorable discharge. The 

convening authority approved a sentence to confinement of thirty-four years and 

nine months and a dishonorable discharge. The convening authority also credited 

appellant with 304 days of credit toward the sentence to confinement. 
CONRADY—ARMY 20080534 

2

On 30 March 2011, this court issued an opinion of the court pertaining to this 

case in which we found the military judge committed error in admitting an image of 

child pornography under Military Rule of Evidence [hereinafter Mil. R. Evid. ] 

414(d)(2). However, because we found the error was harmless, no relief was 

warranted. Accordingly, we affirmed the findings of guilty and the sentence United 

States v. Conrady, ARMY 20080534 (Army Ct. Crim. App. 30 Mar. 2011). On 7 

October 2011, our superior court set aside and dismissed the guilty findings to the 

words “on divers occasions” contained in both Specification 3 of Charge II (forcible 

sodomy with a child under the age of twelve) and Specification 7 of Charge III 

(indecent acts with a child under the age of sixteen). Our superior court then 

vacated our original 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). 

On 28 February 2012, we issued an opinion in this case, affirming the 

findings of guilty and the sentence. United States v. Conrady, ARMY 20080534 

(Army Ct. Crim. App. 28 Feb. 2012). On 10 July 2012, our superior court reversed 

our decision as to Specifications 2, 6, and 7 of Charge III (indecent acts with a child 

under the age of sixteen) in violation of Article 134, UCMJ, and as to the sentence; 

affirmed our decision as to the other specifications and charges; 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). United States v. Conrady, 71 M.J. 350 (C.A.A.F. 2012). 

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

UCMJ. 

DISCUSSION

The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1) 

the accused engaged in certain conduct, and (2) that the conduct was prejudicial to 

good order and discipline or service discrediting. See Manual for Courts-Martial, 

United States (2008 ed.), pt. IV, ¶ 66.b(1)(e). 

“The Government must allege every element expressly or by necessary 

implication, including the terminal element.” Fosler, 70 M.J. at 232 (C.A.A.F. 

2011). Pursuant to Humphries, even if a specification does not allege the terminal 

element by necessary implication, the question remains whether the defect resulted 

in material prejudice to appellant’s substantial right to notice. This question is 

answered by a close review of the record to determine if “notice of the missing 

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

‘essentially uncontroverted.’” Humphries, 71 M.J. at 215-216 (citing United States 

v. Cotton, 535 U.S. 625, 633 (2002)). 
CONRADY—ARMY 20080534 

3

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

to the Article 134, UCMJ, offenses of indecent acts with a child under the age of 

sixteen 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 convictions for 

indecent acts and dismiss the defective specifications which failed to state an 

offense in light of Fosler. 

CONCLUSION

On consideration of the entire record in light of United States v. Humphries, 

71 M.J. 209 (C.A.A.F. 2012), the findings of guilty of Specifications 2, 6, and 7 of 

Charge III are set aside and dismissed. 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 

(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring 

opinion in Moffeit, the court affirms the sentence as approved by the convening 

authority. 

 FOR THE COURT: 

JOANNE P. TETREAULT E 

 Deputy Clerk of Court 

JOANNE P. TETREAULT ELDRIDGE 

Deputy Clerk of Court 

FOR THE COURT: