UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, KRAUSS, and BURTON
                               Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                       Private E1 RANDY A. KRYSTYAN
                         United States Army, Appellant

                                    ARMY 20110014

                            Headquarters, Fort Riley
                          Susan Arnold, Military Judge
      Lieutenant Colonel Robert Borcherding, Staff Judge Advocate (pretrial)
            Colonel Michael L. Smidt, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jennifer A. Parker, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Bradley M. Endicott, JA (on brief).


                                      5 October 2012

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                        SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his plea, of one specification of absence without leave in violation of
Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter
UCMJ]. Contrary to his pleas, the military judge also convicted appellant of assault
upon a noncommissioned officer and unlawful entry in violation of Articles 128 and
134, UCMJ, 10 U.S.C. §§ 928, 934 (2006). The military judge sentenced appellant
to a bad-conduct discharge and confinement for eleven months. In accordance with
a pretrial agreement, the convening authority reduced the sentence of confinement to
nine months and approved the remainder of the sentence. The convening authority
also credited appellant with ninety-five days of confinement credit against the
sentence to confinement.
KRYSTYAN—ARMY 20110014

       On 24 April 2012, we issued a decision in this case, affirming the findings of
guilty and the sentence. United States v. Krystyan, ARMY 20110014, 2012 WL
1415404 (Army Ct. Crim. App. 24 Apr. 2012) (mem. op.). On 11 September 2012,
our superior court reversed our decision as to Charge III and its Specification,
unlawful entry, in violation of Article 134, UCMJ, and as to the sentence; affirmed
our decision in all other respects; and returned the record of trial to The Judge
Advocate General of the Army for remand to this court for further consideration in
light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). United States v.
Krystyan, 71 M.J. ___ (C.A.A.F. 11 Sept. 2012). Consequently, appellant’s case is
again before this court for review under Article 66, UCMJ.

       In light of Humphries, we are compelled to disapprove the finding of guilt as
to Charge III and its Specification. Charge III and its Specification does not contain
allegations of terminal elements under Article 134, UCMJ, and there is nothing in
the record to satisfactorily establish notice of the specific need to defend against a
terminal element as required under Humphries. Therefore, we now reverse
appellant’s conviction for unlawful entry and dismiss the defective specification
which failed 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 finding of guilty of Charge III and
its Specification is set aside and dismissed. The remaining findings of guilty are
affirmed. Reassessing the sentence on the basis 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 Baker in his concurring opinion in Moffeit, the court
affirms the sentence as approved by the convening authority.

                                       FOR THE COURT:




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




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