UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            DARPINO, JOHNSON, and BURTON
                                Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                  Private First Class ROBERT W. MEDEIROS
                         United States Army, Appellant

                                      ARMY 20081092

              Headquarters, National Training Center and Fort Irwin
                        Michael J. Hargis, Military Judge
       Lieutenant Colonel F. Dean Raab, Staff Judge Advocate (pretrial and
                                recommendation)
         Major Robert A. Vedra, Acting Staff Judge Advocate (addendum)
  Major Scott A. Dirocco, Acting Staff Judge Advocate (new recommendation and
                                   addendum)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Barbara A. Snow-Martone, JA (on brief).

For Appellee: Major Ellen S. Jennings, JA; Major Katherine S. Gowel, JA; Captain
Christopher S. Glascott, JA (on brief).


                                       20 January 2012

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of assault (two specifications), adultery, and communicating a
threat, in violation of Articles 128, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 928, and 934 [hereinafter UCMJ]. See Manual for Courts-Martial, United
States, (2005 ed.) [hereinafter MCM, 2005], Part IV, paras. 62.b., and 110.b. At the
same court-martial, the military judge convicted appellant, contrary to his pleas, of
attempted wrongful imprisonment, maiming, sodomy, and assault (six
MEDEIROS—ARMY 20081092

specifications), in violation of Articles 80, 124, 125, and 128, UCMJ. 1 The
convening authority approved the adjudged sentence of a dishonorable discharge,
confinement for thirty-two years, and reduction to E1. On 7 June 2011, 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’s recommendation and action. United
States v. Medeiros, ARMY 20081092 (Army Ct. Crim. App. 7 June 2011) (unpub).
The action has been completed and the record is now before us for further review
under Article 66, UCMJ.

       Following the new recommendation and action, appellant raises two
assignments of error, one of which merits discussion but no relief. Appellant argues
that Specifications 1 and 3 of Charge VI, setting forth violations of Article 134,
UCMJ, do not expressly allege a terminal element and, therefore, do not state
offenses. We have considered the issues raised by appellant, the government’s
answer, and the record of trial. We conclude that the issues raised by appellant are
meritless, and we hold that Specifications 1 and 3 of Charge VI, in light of United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Roberts, 70 M.J.
550 (Army Ct. Crim. App. 2011), state the offenses of adultery and communicating a
threat, respectively.

                              LAW AND DISCUSSION
       Whether a charge and specification state an offense is a question of law that is
reviewed de novo. Roberts, 70 M.J. at 552. Together, the charge and specification
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-Martial 307(c)(3). Here, appellant pleaded guilty to the charge of
wrongful communication of a threat and to the charge of adultery—neither of which
in this case expressly alleged that appellant’s conduct was of a nature to bring
discredit upon the armed forces. Although the adultery charges at issue in Fosler
and this case are similar, the procedural posture of the parties is different. In this
case, appellant did not object at trial; therefore, his standing to challenge the charge
and specifications is circumscribed. Roberts, 70 M.J. at 553. Where a charge and
specification are not challenged at trial, their language is to be liberally construed.
Roberts, 70 M.J. at 552–53 (citing United States v. Watkins, 21 M.J. 208, 209
(C.M.A. 1986)). Cf. Fosler, 70 M.J. at 230. Consequently, we will not set aside the
charge and its specifications in this case unless it is “so obviously defective that it


1
 Appellant initially pled guilty to Charge III and the Specification (maiming), and
Specifications 5 and 8 of Charge V (assault), but the military judge concluded
appellant was improvident and he declined to accept his guilty pleas. Appellant was
subsequently convicted of these charges and specifications in a contested case.


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MEDEIROS—ARMY 20081092

could not be reasonably construed to embrace [the] terminal element.” Roberts, 70
M.J. at 553.

       We hold that in this case the Article 134 charge and specifications can be so
construed. It is evident the language of the charge and specifications embraces an
allegation of conduct that is service discrediting. The adultery specification states
appellant wrongfully engaged in sexual intercourse with LC, a woman who was not
his wife, and the communicating-a-threat specification states that appellant later
threatened to burn LC alive. The charge for both of these specifications alleges
appellant’s conduct was in violation of Article 134, UCMJ. Therefore, both
specifications necessarily imply service-discrediting conduct. In addition, appellant
received fair notice and enjoys protection against being placed twice in jeopardy.
The charge sets forth a violation of Article 134, UCMJ, and the specifications state
the date, location, and the victim to whom specific threats were made. See, e.g.,
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994) (holding a maltreatment
specification provided notice because “it set[] forth the Article of the Code, name of
the victim, the time frame of the offense, and the comments alleged to have been
made by appellant”). See also MCM, 2005, Part IV, paras. 62.b., and 110.b.
Furthermore, appellant completed a knowing and voluntary guilty plea. E.g., United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). During the providence
inquiry, the military judge properly explained the terminal elements to appellant,
appellant stated that he understood he was charged with offenses that included these
elements, and then admitted he was guilty of those offenses. Finally, the foregoing
factual admissions, combined with factual allegations on the charge sheet
sufficiently protect appellant against double jeopardy.

                                   CONCLUSION
      On consideration of the entire record, and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), 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.

                                        FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




                                        MALCOLM H.
                                        MALCOLM      H. SQUIRES,
                                                         SQUIRES, JR.
                                                                   JR.
                                        Clerk  of Court
                                        Clerk of Court




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