## 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 Bre nda n M. Donahoe , Staff Judge Advocate (new review and action)

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

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

26 November 2014

------------------------ -------------------- ------------------- SUMMARY DISPOSITION ON FURTHER REVIEW

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

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 ) (sum m

. disp.)

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

bef ore us for further review. 1

1 In his initial action, the convening a uthority 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 assign ments of error

. 2 In our previous decisio n, 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 anothe r” 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

- Mart ial

, 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 Specific ations 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 t he Specification (as consolidated) of Charge I and Charge I are AFFIRMED. The finding s of guilty to Charge II and its specifications

are set aside

, and Charge II and its Specificat ions are now dismissed as an unreasonable multiplication of charges

.

(. . . cont inued) 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 error s 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 milit ary judge as “one for sentencing purposes,” we are satisfied that appellant suffered no prejudice as to his sentence. Therefore,

r eassessing 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: