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

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

       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.



                                           2
COX — ARMY 20111136

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




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