## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, MORAN, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist TYLER A. MCINTOSH

United States Army, Appellant

ARMY 20120780

Headquarters, 101st Airborne Division (A ir Assault) and Fort Campbell (trial) Headquarters, Fort Campbell (action) Timothy Grammel and Steven E. Walburn, Military Judges

Colonel Jeff A. Bovarnic k, Staff Judge Advocate

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Captain A. Jason Nef, JA; Ca ptain Brian J. Sulliva n, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Elisabeth A. Claus, JA; Major Matthew T. Grady, JA (on brief).

29 May 2014

--------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of two specifications of knowin gly and wrongfully distributing child pornography and two specifications of knowin gly and wrongfully possessing child pornography, in violat ion of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S. C. § 934 (2006). The conve ning authority approved the adjudged sentence of a bad-conduct discharg e, confinement for tw o years, forfeiture of all pay and allowances, and re duction to the gr ade of E-1.

This case is before us for review pursuant to Article 66, UCMJ. One of appellant’s person al submissions raised pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) has merit. Appe llant alleges, and we agree, that the government failed to prove that any of the offenses were prejudicial to good orderMCINTOSH—ARMY 20120780

2 and discipline. Appellant’s other assignments of error and Grostefon claims are

without merit.

The government charged appe llant with four violatio ns of Article 134, UCMJ, alleging that appellant violated both Clause 1 and Clause 2 in all four specifications. See Manual for Courts-Martial

, United States (2008 ed.), Part IV , ¶ 60.c.(1), (2), (3). As our su perior court recently reiterated, “[t]he . . . clauses of Article 134 constitute ‘. . . distinct and separate parts.’” United States v. Fosler , 70 M.J. 225, 230 (C.A.A.F. 2 011) (quoting United States v. Frantz , 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). It fo llows then that “[v]iolation of one clause does not necessarily lead to a violat ion of the othe r . . . .” Id . More specifica lly to the case before us, th e court in Fosler went on to state that “disorders and neglects to the prejudice of good orde r and discipline” ar e not synonymous with “conduct of a nature to bring disc redit upon the armed forces . . . .” Id

.

Here, the government admitted no evid ence tending to prov e that appellant’s conduct was prejudicial to good order an d discipline. Theref ore, on the record before us, we conclude that the evidence is legally and factually insufficient to sustain appellant’s convictions for conduct in vi olation of Clause 1 of Article 134,

UCMJ.

CONCLUSION

On consideration of the entire record, as well as those matters personally raised by appellant pursuant to Grostefon

, the court affirms only so much of the finding of guilty of Specif ication 1 of The Charge as finds that appellant:

did, on or about 7 June 2010, at or near Fort Campbell, Kentucky, knowingly and wrongfully distribute approximately 16 images of child pornograph y as defined in 18 U.S.C. §2256(8), which conduct was of a nature to bring discredit upon th e armed forces.

The court affirms only so mu ch of the finding of guilty of Specification 2 of The Charge as finds that appellant:

did, on or about 2 July 2010, at or near Fort Campbell, Kentucky, knowingly and wrongfully distribute approximately 17 images of child pornograph y as defined in 18 U.S.C. §2256(8), which conduct was of a nature to bring discredit upon th e armed forces.

The court affirms only so mu ch of the finding of guilty of Specification 3 of The Charge as finds that appellant:MCINTOSH—ARMY 20120780

3 did, on or about 10 August 20 10, at or near Fort Campbell, Kentucky, knowingly an d wrongfully possess approximately six images of child pornograph y as defined in 18 U.S.C. §2256(8), which conduct was of a nature to bring discredit upon the armed forces.

The court affirms only so much of the finding of guilty of the Specification of The Additional Charge as finds that appellant:

did, on or about 10 August 20 10, at or near Fort Campbell, Kentucky, knowingly and wrong fully possess two videos containing child por nography as define d in 18 U.S.C. §2256(8), which conduct was of a nature to bring discredit upon the armed forces.

The findings of guilty of The Charge and The Additiona l Charge are AFFIRMED. Reassessing the sentence on the basis of the er ror noted, the entir e record, and in accordance with the principles ar ticulated by our superior court in United States v.

Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2014) and United States v. Sales , 22 M.J. 305 (C.M.A. 1986), the sent ence as approved by th e convening authority is AFFIRMED. All rights, priv ileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision, are

ordered restored.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: