## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 MICHAEL E. QUEENAN United States Army, Appellant

ARMY 20110423

Headquarters, 101st Airborne Division (A ir Assault) and Fo rt Campbell Timothy Grammel, Military Judge Lieutenant Colonel Joseph B. Morse, Staff J udge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; Major James A. Ewing, JA (on brief).

22 August 2012

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

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

Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, pursuant to his pleas, of one specification of absent withou t leave, three specifications of engaging in sexual acts with a child wh o had attained the age of twelve years but had not atta ined the age of sixteen, tw o specifications of sodomy

with a child who has a ttained the age of twel ve but under th e age of sixt een, and two specifications of adultery in violation of Articles 86, 120b, 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 920b, 925, 934 (2006) [hereinafter UCMJ]. See Manual for Courts-Martial

, United States , (2008 ed.), pt . IV, ¶ 62.b. Appellant was sentenced to a bad-conduc t discharge, confin ement for forty-two months, and forfeiture of al l pay and allowances . The convening au thority approved a bad-conduct discharge, confinement for thir ty-six months, and forfeiture of all pay and allowances. Appellant was credited with one hundred sixty-seven days of confinement against the sent ence of confinement.QUEENAN—ARMY 20110423

2 In light of United States v. Humphries , 71 M.J. 209 (C.A.A.F. 2012), we are compelled to disapprove the fi ndings of guilt as to Specifications 2 and 3 of Charge IV in violation of Article 134, UCMJ. * The specifications do not contain allegations

of terminal elements under Article 134, UCMJ, and there is nothing in the record to satisfactorily establish notice of the need to defend against a terminal element as required under Humphries . Therefore, we now revers e appellant’s convictions for adultery and dismiss th e defective specifications which fa iled to state an offense in light of United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011).

On consideration of the entire record, the findings of guilty of Specifications 2 and 3 of Charge IV are set aside and dismissed. Th e remaining findings of guilty are affirmed. Reassessing th e sentence on the ba sis of the error noted, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F . 2006), to include the factors identified by Judge Bake r in his concurri ng opin ion in Moffeit , the court affirms the sentence as approved by the convenin g authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

* The Military Judge changed appellant’s plea to Specification 1 of Charge IV to not guilty prior to findings. Specificat ion 4 of Charge IV was dismissed. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: