UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, ALDYKIEWICZ and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Captain ROBERT A. WARREN 

United States Army, Appellant 

ARMY 20100914 

Special Operations Command Central 

Michael J. Hargis, Military Judge 

Commander Todd C. Huntley, USN, Staff Judge Advocate 

For Appellant: Captain Brandon H. Iriye, JA; Mr. Donald G. Rehkopf, Jr., Esquire 

(on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley, 

JA; Captain Edward J. Whitford, JA (on brief). 

29 August 2013 

SUMMARY DISPOSITION 

KERN, Senior Judge: 

A general court-martial composed of officer members convicted appellant, 

contrary to his pleas, of violating a general order, wrongfully possessing a 

controlled substance, rape, conduct unbecoming an officer, adultery, and obstruction 

of justice, in violation of Articles 92, l 12a, 120, 133, and 134, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 912a, 920, 933, 934 (2006) [hereinafter UCMJ]. 

The panel sentenced appellant to a dismissal, confinement for eight years, and to 

forfeit all pay and allowances. The convening authority approved only so much of 

the sentence as provided for a dismissal and confinement for seven years and eight 

months. 
WARREN-ARMY 20100914 

The case is now before this court for review under Article 66, UCMJ. 

Appellant alleges eight assignments of error', only one of which merits discussion 

and relief. In consideration of our superior court's decision in United States v. 

Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside the findings 

of guilty to specifications I and 2 of Charge V, the adultery and obstruction of 

justice specifications charged under Article 134, UCMJ. 

The specifications do not allege the Article 134, UCMJ, terminal element of 

conduct that is prejudicial to good order and discipline (Clause 1) or of a nature to 

bring discredit upon the armed forces (Clause 2). "Where, as here, a specification 

neither expressly alleges nor necessarily implies the terminal element, the 

specification is defective." United States v. Gaskins, 72 M.J. 225, 232 (C.A.A.F. 

2013) (citing United States v. Fosler, 70 M.J. 225, 229-30 (C.A.A.F. 2011 )). 

However, appellant did not object to the form of the specification at trial, and 

"where defects in a specification are raised for the first time on appeal, dismissal of 

the affected charges or specifications will depend on whether there is plain errorwhich, in most cases will turn on the question of prejudice." United States v. 

Humphries, 71 M.J. 209, 213-14 (C.A.A.F. 2012) (citing United States v. Cotton, 

535 U.S. 625, 631-32 (2002)). Therefore, appellant must demonstrate "the 

Government's error in failing to plead the terminal element of Article 134, UCMJ, 

resulted in material prejudice to [appellant's] substantial, constitutional right to 

notice." Humphries, 71 M.J. at 215; UCMJ art. 59(a). 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. '" 

Id. at 215-16 (citing Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S. 

461, 470 (1997)). 

After thoroughly reviewing the record, we do not find any indication that 

appellant was on notice of the missing terminal element for either specification. The 

government never proffered its theory of criminality with respect to the terminal 

element, and did not "put on any direct evidence of the terminal element." Gaskins, 

72 M.J. at 233-34. See also United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) 

(finding the appellant was not prejudiced by the government's failure to plead the 

terminal element because it proffered its theory of criminality, presented direct 

evidence on the terminal element, and appellant put on a vigorous defense). Based 

on a totality of the circumstances in this case, we are not convinced appellant was 

placed on sufficient notice of the government's theory as to which clause(s) of 

Article 134, UCMJ, he violated. As a result, appellant's substantial right to notice 

was materially prejudiced by the government's failure to allege the terminal 

By separate order, we direct the briefs of both appellant and appellee be sealed as 

both discuss evidence which was sealed by the military judge. 

2. 
WARREN-ARMY 201 00914 

element. See UCMJ art. 59(a). Accordingly, on consideration of the entire record 

and in light of Humphries, the findings of guilty to Specifications 1 and 2 of Charge 

V and Charge V are set aside. 

Reassessment of the Sentence 

We must now consider and determine whether we can appropriately reassess 

the sentence with the dismissal of Specifications 1 and 2 of Charge V and Charge V. 

If this court "can determine that, absent the error, the sentence would have been at 

least of a certain magnitude, then [we] may cure the error by reassessing the 

sentence instead of ordering a sentencing rehearing." United States v. Doss, 57 M.J. 

182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986)). A "dramatic change in the 'penalty landscape"' lessens our ability to 

reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003). 

Ultimately, a sentence can be reassessed only if we "confidently can discern the 

extent of the error's effect on the sentencing authority's decision." United States v. 

Reed, 33 M.J. 98, 99 (C.M.A. 1991). Because the error in this case is of a 

constitutional magnitude, we "must be satisfied beyond a reasonable doubt that ... 

reassessment [can cure] the error." Doss, 57 M.J. at 185 (citing Sales, 22 M.J. at 

307). Additionally, we must determine that a sentence we propose to affirm is 

"appropriate," as required by Article 66(c), UCMJ. In short, a reassessed sentence 

must be purged of prejudicial error and also must be appropriate for the offense and 

the offender involved. Sales, 22 M.J. at 307-08. 

In this case, the sentencing landscape does not change with the dismissal of 

Specifications 1 and 2 of Charge V and Charge V. The maximum punishment 

remains the same, including confinement for life without parole. Viewing the 

remaining convictions in light of this context, we are convinced that we can reassess 

the sentence from appellant's trial. We have considered the entire record and the 

principles of Sales and United States v. Mojfeit, 63 M.J. 40 (C.A.A.F. 2006), to 

include the factors identified by Judge Baker in his concurring opinion in Moffeit. 

Among other matters, we took into account appellant's length of service, his family, 

and his service .record. We also considered the serious nature of appellant's 

remaining convictions, to include the gravamen offense of rape. In addition, we also 

considered appellant's record of prior misconduct. In light of the foregoing, we are 

confident beyond a reasonable doubt that appellant would have received a sentence 

on the remaining convictions of no less than a dismissal and confinement for seven 

years and eight months. We find such a sentence is correct in law and fact and, 

based on the entire record, should be approved. 

CONCLUSION 

Specifications 1 and 2 of Charge V and Charge V are set aside. The 

remaining findings of guilty are AFFIRMED. After reassessing the sentence on the 

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WARREN-ARMY 20100914 

basis of the error noted above, the submissions of the parties, and the entire record, 

the approved sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are ordered restored. See UCMJ art. 75(a). 

Judge ALDYKIEWICZ and Judge HAIGHT concur. 

FOR THE COURT: 

H. SQUIRES JR. 

Cler of Court 

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