UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, YOB, and ALDYKIEWICZ 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist ANTHONY R. ELLINGTON 

United States Army, Appellant 

ARMY 20100667 

Headquarters, Fort Stewart 

Tara A. Osborn and Tiernan P. Dolan, Military Judges 

Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (trial) 

Colonel Randall J. Bagwell, Staff Judge Advocate (new recommendation and action) 

For Appellant: Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA. 

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 

31 January 2012 

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SUMMARY DISPOSITION ON FURTHER REVIEW 

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ALDYKIEWICZ, Judge: 

 On 14 August 2010, a military judge sitting as a general court-martial 

convicted appellant, pursuant to his pleas, of assault consummated by a battery (two 

specifications), aggravated assault, and child endangerment in violation of Articles 

128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 

[hereinafter UCMJ]. On 29 October 2010, the convening authority approved the 

adjudged sentence of a bad-conduct discharge, confinement for thirty-two months, 

forfeiture of all pay and allowances, and reduction to Private E1. 

 On 30 June 2011, this court set aside the convening authority’s action, 

returning the record of trial to The Judge Advocate General for remand to the same 

convening authority for a new staff judge advocate recommendation and action.1

 

 

1

 The case was returned because twelve days after trial, the appellant, a Soldier with 

a dependent daughter, submitted a timely request to defer adjudged forfeitures and 

defer and waive automatic forfeitures in his case, a request that was never acted on 

by the convening authority. 
ELLINGTON – ARMY 20100667 

2

United States v. Ellington, ARMY 20100667 (Army Ct. Crim. App. 30 June 

2011)(unpub.). 

On 18 October 2011, the convening authority again acted in appellant’s case, 

this time approving only the bad-conduct discharge, confinement for thirty-two 

months, and reduction to Private E1. The convening authority granted a six-month 

waiver of the automatic forfeitures, directing payment of the funds “to the mother of 

the [appellant’s] child, in support of the [appellant’s] [f]amily [m]ember.” 2 

 A review of the record reveals one issue that merits discussion but no relief; 

that is, the failure of the child endangerment specification, a violation of Article 

134, UCMJ to allege the terminal element for a clause 1 or clause 2 violation. 3 

Fosler Issue 

 Whether a charge and specification states an offense is a question of law that 

is reviewed de novo. United States v. Roberts, 70 M.J. 550, 552 (Army Ct. Crim. 

App. 2011) (citing United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006)). 

 As noted by our superior court: 

The military is a notice pleading jurisdiction. United States v. Sell, 3 

C.M.A. 202, 206, 11 C.M.R. 202, 206 (1953). A charge and 

specification will be found sufficient if they, “first, contain[ ] the 

elements of the offense charged and fairly inform[ ] a defendant of the 

charge against which he must defend, and, second, enable[ ] him to 

plead an acquittal or conviction in bar of future prosecutions for the 

same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 

2887, 41 L.Ed.2d 590 (1974); see also United States v. Resendiz–

Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) 

(citations and quotation marks omitted); United States v. Sutton, 68 

 

2

 The Court notes that both the report of result of trial and promulgating order have 

errors requiring correction. The former incorrectly describes Charge IV and its 

specification; the latter, General Court-Martial Order Number 18, dated 18 October 

2011, is incomplete and fails to comply with Appendix 17 of the MCM, 2008, noting 

only the convening authority’s action and omitting information such as the time and 

place of arraignment, the offenses for which the appellant was arraigned, the pleas 

and findings, the adjudged sentence, and the requirement for DNA processing IAW 

10 U.S.C. § 1565. 

3

 The terminal element for a clause 1 and clause 2, Article 134, UCMJ violation is 

that the alleged conduct was “to the prejudice of good order and discipline” or 

“conduct of a nature to bring discredit upon the armed forces” respectively. See 

Manual for Courts-Martial, United States, (2005 ed.) [hereinafter MCM, 2005], Part 

IV, para. 60.c. 
ELLINGTON – ARMY 20100667 

3

M.J. 455, 455 (C.A.A.F. 2010); United States v. Crafter, 64 M.J. 209, 

211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R. at 206. The 

rules governing court-martial procedure encompass the notice 

requirement: “A specification is sufficient if it alleges every element of 

the charged offense expressly or by necessary implication.” R.C.M. 

307(c)(3). 

Fosler, 70 M.J. at 229 (holding an adultery charge failed to state an offense where it 

neither expressly nor impliedly alleged the terminal elements for a clause 1 or clause 

2 Article 134, UCMJ offense, appellant objected at trial to the pleading, and 

appellant contested the charge and specification at issue). See also, Roberts, 70 M.J. 

at 553; United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994). 

 Charges and specifications first challenged on appeal, even where an 

appellant pleaded not guilty, are liberally construed. Roberts, 70 M.J. at 553 (citing 

United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986)); see also, United 

States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); United States v. Berner, 32 M.J. 570, 

572 (A.C.M.R. 1991). Additionally, an appellant’s “standing” to challenge the 

pleading following a knowing and voluntary guilty plea thereto is diminished. 

Roberts, 70 M.J. at 553. Absent an objection at trial, we will not set aside a 

specification unless it is “‘so obviously defective that by no reasonable construction 

can it be said to charge the offense for which conviction was had.’” Id (citing 

United States v. Watkins, 21 M.J. 208, 209-210) (quoting United States v. Thompson, 

356 F.2d 216, 226 (2d Cir.1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 

L.Ed.2d 675 (1966)) (internal quotation marks omitted). 

 

 Unlike Fosler, the procedural posture and facts of appellant’s case are notably 

different, resulting in a different outcome. The pleading itself alleged a violation of 

Article 134, UCMJ “Child endangerment,” a title that necessarily implies service 

discrediting behavior. The text of the specification stated, in part, that appellant 

“did endanger the mental health of [KW], by assaulting Ms. [AP], the mother of 

[KW], while [KW] was in [the] home and able to hear such acts take place.” The 

appellant did not object to the pleading.4 The action taken by appellant and made 

criminal by Article 134 was the endangerment of a two-year old child’s mental 

health, through culpable negligence, as he physically assaulted the child’s mother 

within the hearing of the child. The stipulation of fact, dated 19 July 2010, almost 

one month before trial and signed by appellant and counsel noted: appellant 

assaulted the child’s mother within hearing of the child; the child awoke during the 

assault and heard the “noise from the assault and the pleas of her mother;” appellant 

knew or should have known that his actions endangered the mental health of the 

child; appellant had a duty of care towards the child; and appellant’s actions “would 

lower the reputation and public esteem towards the military and would also cause a 

 

4

 Appellant did not object to the pleading at trial, during the post-trial processing of 

his case, or on appeal before this court. 
ELLINGTON – ARMY 20100667 

4

good order and discipline issue.” Additionally, the colloquy between the military 

judge and appellant during the providence inquiry addressed how his actions were 

both prejudicial to good order and discipline and service discrediting, elements 

clearly defined by the military judge and understood by appellant. 

 The pleading was sufficient to place the appellant on notice of the offense 

charged and the specification as written, and pleaded to, necessarily implies conduct 

that, at a minimum, is service discrediting, the terminal element for a “clause 2” 

Article 134, UCMJ offense. See United States v. Hoskins, 17 M.J. 134, 136 (C.M.A. 

1984) (listing factors that directly impact the ultimate decision of whether a charge 

and specification necessarily imply an element); see also, United States v. Berner, 

32 M.J. 570 (A.C.M.R. 1991); United States v. Watkins, 21 M.J. 208 (C.M.A. 1986). 

Finally, the pleading and the record of trial sufficiently protect the appellant from a 

double jeopardy perspective. 

Conclusion 

 On consideration of the entire record, we hold the findings of guilty and the 

sentence as approved by the convening authority correct in law and fact. 

Accordingly, the findings of guilty and the sentence are affirmed. 

Senior Judge KERN and Judge YOB concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: