## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, BERG, and KRAUSS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist BENJAMIN M. ACKMAN United States Army, Appellant

ARMY 20090615

Headquarters, United States Army Maneuver Center of Excellence James Pohl, Military Judge Colonel Tracy A. Barnes , Staff Judge Advocate

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Capt ain E. Patrick Gilma n, JA (on brief).

For Appellee: Colonel Mich ael E. Mulligan, JA; Majo r Amber J. Williams, JA; Major Adam S. Kazin, JA; Captain Joshua W. Johnson, JA (on brief).

30 November 2011

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

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

Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, pursuant to his pleas, of two specificatio ns of wrongful use of cocaine in vi olation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2 007) [hereinafter UCMJ]. At the same general court-martial, a panel of o fficer and enlisted members convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent conduct, and adultery, in violatio n of Articles 12 0, and 134, UCMJ. 1 See Manual for
Courts-Martial

, United States , (2005 ed.) [hereinafter MCM ], Part IV, para. 62.b. Appellant was sentenced to a dishonorable discharge, confinemen t for four years, forfeiture of all pay and al lowances, and reduction to E1 . The convening authority

1 One specification of adul tery in violation of Arti cle 134, UCMJ, was dismissed.ACKMAN—ARMY 20090615

2 disapproved one year of confinement, waived a portion of the automa tic forfeitures for six months, 2 and otherwise appr oved the remainder of the sentence.

Appellant’s case is now be fore this court for review under Article 66, UCMJ. Appellant raises three assignments of error 3 and personally submits matters pursuant

to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). In addition, it is evident that Specification 1 of Char ge III, setting forth a viol ation of Article 134, UCMJ, does not expressly allege a te rminal element. We have considered the Article 134 charge and specification in light of United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011), and we have also considered the issues raised by appellant, the government’s answer, and the record of tria l. We find the issues raised by appellant to be without merit, and we hold that Specification 1 of the re-numbered Charge II, when liberally construed, states the offense of adultery.

2 Prior to action, the convening authority ap proved appellant’s request for waiver of
automatic forfeitures in the amount of $1399.50 pay pe r month (the basic pay amount for an E1 in 2009). This waiver was approved for a six-month period to begin after action. Thereaft er, the convening authority t ook action and reiterated the previously approved waiver of forfeitures, directing payment to Mrs. Tracy Ackman for a period of six months . However, the convening authority also approved the adjudged sentence to total forfeiture of all pay and al lowances. Thus, although the

automatic forfeitures were waived, the adjudged forfeitures were still in effect, thereby leaving no forfeitures to pay for the benefit of Mrs. Ackman. In order to
effectuate the clear intent of the convenin g authority and in th e spirit of judicial economy, we will set asid e that portion of the sentence that included total forfeiture of all pay and allowances in our decretal paragraph. To the extent that the Defense Finance and Accounting Service did not execu te the convening authority’s waiver of forfeitures of $1399.50 pay per month for a six month pe riod, we order retroactive payment to Mrs. Tracy Ackman.

3 In one assignment of error, appellant aver s that the military judge erred when he did not instruct the panel th at appellant first possesse d the burden to prove the
affirmative defenses of consent and mistake of fact as to cons ent by a prep onderance
of the evidence. UCMJ art. 120(t)(16). We hold that the military judg e erred by not giving a legally suffici ent explanation when he provid ed an instruction that was
inconsistent with Ar ticle 120, UCMJ. United States v. Medina , 69 M.J. 462, 465 (C.A.A.F. 2011). Howeve r, under the facts of this case, we are satisfied that this
error was harmless be yond a reasonable doub t. The instruction that was given was clear and correctly conveyed that the burde n to disprove the a ffirmative defenses beyond a reasonable doubt rested solely wi th the government. Id

.ACKMAN—ARMY 20090615

3 LAW AND DISCUSSION

Whether a charge and specifi cation state an offense is a question of law that is
reviewed de novo. United States v. Roberts , __ M.J. ___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011). Toge ther, the charge and specif ication must “allege every element of the offense either expressly or by necessary implication, so as to give the accused notice and protect him against double jeopardy,” id. (quoting United States

v. Dear , 40 M.J. 196, 197 (C.M.A. 1994)). Rule for Courts-M artial 307(c)(3). Here, appellant pleaded not guilty to the charge of adultery—which in this case does not expressly allege that appe llant’s conduct was to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces. However, appellant did not object to the language of the charge and specification at trial, nor did he object in his post-tria l matters to the convening auth ority, or in his appeal to this court. Appellant’s silence on this issue speaks volumes and informs our
decision on this matter. See United States v. Hoskins , 17 M.J. 134, 136 (C.M.A. 1984) (listing factors that directly impact the ultimate decision of wh ether a charge and specification necessarily imply an element). Where a charge and specification are not challenged at trial, their langu age is to be libe rally construed. Roberts

, __ M.J. at ___, slip op . at 4 (citing United States v. Watkins , 21 M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler , 70 M.J. at 230. This liberal rule of interpretation is applicable even where an appe llant does not plead guilty. United States v. Fox , 34 M.J. 99, 102 (C .M.A. 1992); Roberts , __ M.J. at ___, slip op. at 5; United States v.

Berner , 32 M.J. 570, 572 (A.C.M.R. 1991).

In the absence of an objection at tria l, we will not set aside a charge and specification unless it is “so obviously defective that it could not be reasonably construed to embrace [the ] terminal element.” Roberts , __ M.J. at ___, slip op. at 5;
United States v. Watkins , 21 M.J. 208, 209–10 (C .M.A. 1986). We hold that in this case the Article 134 charge and specificat ion can be so constr ued, and, therefore,
state the offense of adul tery. Although th e adultery charge s at issue in Fosler and this case are similar, the procedural posture of the parties is differ ent. In this case, appellant did not object at trial; therefore, his standing to cha llenge the charge and specifications is circumscribed. Roberts , __ M.J. at ___, slip op. at 4. Cf. Fosler

, 70 M.J. at 230. In addition to the procedural posture, the factua l allegations also
differ. In the instant case the allegations contained in the adultery specification mirror those supporting the separately charge d specifications alle ging an aggravated
sexual assault and an indecent act. In othe r words, altogether the charges notified appellant that the adultery was committ ed by engaging in a sexual act with a substantially incapaci tated woman that was not his spouse in vi olation of Article 134, UCMJ. Therefore, the adultery charge a nd specification in th is case necessarily imply that appellant’s condu ct was prejudicial to good order and di scipline or service discrediting.

Furthermore, this textual relationship of necessary implication provided appellant with fair notice. The charge se ts forth a violation of Article, 134, UCMJ, and the specification states the date, location, and the victim of the offense. See,ACKMAN—ARMY 20090615

4 e.g. , United States v. Dear , 40 M.J. 196, 197 (C.M.A. 19 94) (holding a maltreatment specification provided no tice because “it set[] forth the Article of the Code, name of the victim, the time frame of the offense, and the commen ts alleged to have been made by appellant”). Add itionally, the panel was instru cted in open court, without comment from appellant or his defense counsel, that the Ar ticle 134 offense contained terminal elements and required proof of the same . Buttressed by the presumption of the de fense counsel’s competence, this is strong evidence that appellant was not misled about the nature of the charge leve led against him. See
MCM , Part IV, paras. 60.c.(6)(a) , and 62.b. Finally, the factual allegations in the specification combined with th e record of trial sufficientl y protect appellant against double jeopardy.

CONCLUSION

On consideration of the entire recor d, the matters person ally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M .A. 1982), and in light of United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011), we find appellant’s arguments to be without merit. The findings of guilty are affirme d. On the basis of the error noted, the c ourt affirms only so much of th e sentence as provides for a dishonorable discharge, confinement for th ree years, and reduc tion to Private E1. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue of that portion of his sent ence set aside by this deci sion, are ordere d restored. See UCMJ arts. 58b(c) and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: