UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, TELLITOCCI, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist JOHN W. COX

United States Army, Appellant

ARMY 20111136

Headquarters, Third Army (trial)

United States Army Central (new review and action)

Reynold P. Masterton, Military Judge

Colonel Stephanie L. Stephens, Staff Judge Advocate (trial)

Colonel Brendan M. Donahoe, Staff Judge Advocate (new review and action)

For Appellant: Captain Brian D. Andes, JA; Major Yolanda D. McCray Jones, JA.

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

26 November 2014

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SUMMARY DISPOSITION ON FURTHER REVIEW

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Per Curiam:

On 24 December 2013, this court set aside the convening authority’s action in 

this case and returned the record of trial to The Judge Advocate General for remand 

to the same or a different convening authority for a new staff judge advocate 

recommendation and convening authority action. United States v. Cox, ARMY 

20111136, 2013 CCA LEXIS 1065 (Army Ct. Crim. App. 24 Dec. 2013) (summ.

disp.). This new action was completed on 17 October 2014, and the record is now 

before us for further review. 1

 

1

In his initial action, the convening authority approved a sentence of a bad-conduct 

discharge, confinement for twelve months, forfeiture of $978.00 pay per month for 

twelve months, and reduction to the grade of E-1. In the new action upon remand, 

the convening authority approved a bad-conduct discharge, confinement for ten 

(continued . . .)
COX — ARMY 20111136

2

We have considered the entire record, including the issues personally raised 

by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), as 

well as all previous assignments of error.

2

 In our previous decision, we noted that 

“all parties at trial agreed that appellant’s threats were ‘part and parcel’ of the 

aggravated assault” and suggested that we would “be inclined to view the 

simultaneously committed offenses of assault by offer and communication of a threa t 

as appropriate for merger.” We now follow this inclination.

In this case, appellant’s verbal threats to injure his victim and his assault of 

the same victim “by charging and waving a loaded firearm in a manner intended to 

threaten and intimidate another” occurred “all at once.” According to the Manual 

for Courts-Martial, “if the threatening words are accompanied by a menacing act or 

gesture, there may be an assault, since the combination constitutes a demonstration 

of violence.” Manual for Courts-Martial, United States (2012 ed.), pt. IV, 

¶54.c(1)(c)(ii). Accordingly, we consolidate the communication of a threat 

specifications with the aggravated assault specification. 

The aggravated assault specification of Charge I is consolidated with 

Specifications 1 and 2 of Charge II (communication of a threat) to allege the 

following:

Charge I: Article 128, UCMJ.

The Specification: In that Specialist (E-4) John W. Cox, 

U.S. Army, did at or near Camp As Sayliyah, Qatar, on or 

about 9 October 2011, commit an assault upon SPC CT by 

threatening to injure SPC CT by shooting him and 

“beating his ass,” or words to that effect, such words 

accompanied by the said Specialist John W. Cox charging 

and waving a dangerous weapon, to wit: a loaded firearm, 

in a manner intended to threaten and intimidate another.

The findings of guilty to the Specification (as consolidated) of Charge I and 

Charge I are AFFIRMED. The findings of guilty to Charge II and its specifications 

are set aside, and Charge II and its Specifications are now dismissed as an 

unreasonable multiplication of charges. 

 

(. . . continued)

months, forfeiture of $978.00 pay per month for twelve months, and reduction to the 

grade of E-1.

2 Upon receipt of the new review and action, no further pleadings were filed by 

appellate defense counsel.
COX — ARMY 20111136

3

We are able to reassess the sentence on the basis of the errors noted and do so 

after conducting a thorough analysis of the totality of the circumstances presented 

by appellant’s case, 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. 2013) and 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). As these specifications were 

already considered by the military judge as “one for sentencing purposes,” we are 

satisfied that appellant suffered no prejudice as to his sentence. Therefore, 

reassessing the sentence based on the noted error and the remaining findings of 

guilty, we AFFIRM the sentence as approved by the convening authority on 17 

October 2014. We find this reassessed sentence is not only purged of any error but 

is also appropriate. 

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: