UNITED STATES ARMY COURT 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 (Air Assault) and Fort Campbell (trial) 

Headquarters, Fort Campbell (action) 

Timothy Grammel and Steven E. Walburn, Military Judges 

Colonel Jeff A. Bovarnick, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Captain A. Jason Nef, JA; Captain Brian J. Sullivan, 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 

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SUMMARY DISPOSITION 

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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 knowingly and wrongfully distributing 

child pornography and two specifications of knowingly and wrongfully possessing 

child pornography, in violation of Article 134, Uniform Code of Military Justice 

[hereinafter UCMJ], 10 U.S.C. § 934 (2006). The convening authority approved the 

adjudged sentence of a bad-conduct discharge, confinement for two years, forfeiture 

of all pay and allowances, and reduction to the grade of E-1. 

 This case is before us for review pursuant to Article 66, UCMJ. One of 

appellant’s personal submissions raised pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982) has merit. Appellant alleges, and we agree, that the 

government failed to prove that any of the offenses were prejudicial to good order 
MCINTOSH—ARMY 20120780 

2 

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

without merit. 

 The government charged appellant with four violations 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 superior 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. 2011) (quoting United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 

C.M.R. 37, 39 (1953)). It follows then that “[v]iolation of one clause does not 

necessarily lead to a violation of the other . . . .” Id. More specifically to the case 

before us, the court in Fosler went on to state that “disorders and neglects to the 

prejudice of good order and discipline” are not synonymous with “conduct of a 

nature to bring discredit upon the armed forces . . . .” Id. 

 Here, the government admitted no evidence tending to prove that appellant’s 

conduct was prejudicial to good order and discipline. Therefore, on the record 

before us, we conclude that the evidence is legally and factually insufficient to 

sustain appellant’s convictions for conduct in violation 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 Specification 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 pornography 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 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 pornography 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 Specification 3 of The 

Charge as finds that appellant: 
MCINTOSH—ARMY 20120780 

3 

did, on or about 10 August 2010, at or near Fort Campbell, 

Kentucky, knowingly and wrongfully possess 

approximately six images of child pornography 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 2010, at or near Fort Campbell, 

Kentucky, knowingly and wrongfully possess two videos 

containing child pornography as defined 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 Additional Charge are AFFIRMED. 

Reassessing the sentence on the basis of the error noted, the entire record, and in 

accordance with the principles articulated 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 sentence as approved by the convening authority 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. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: