          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                     Staff Sergeant CHARLES B. EICHELBERGER
                                 United States Air Force

                                              ACM 38318

                                            1 August 2014

         Sentence adjudged 14 December 2012 by GCM convened at Little Rock
         Air Force Base, Arkansas. Military Judge: Natalie D. Richardson.

         Approved Sentence: Dishonorable discharge and reduction to E-1.

         Appellate Counsel for the Appellant:                Captain Isaac C. Kennen and
         Captain Lauren A. Shure.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                  Before

                              ALLRED, MITCHELL, and WEBER
                                  Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



WEBER, Judge:

       A panel of officer members convicted the appellant, contrary to his pleas, of the
following violations of Articles 123a and 134, UCMJ, 10 U.S.C. §§ 923a, 934:
five specifications of wrongfully and unlawfully making and uttering checks without
sufficient funds, two specifications of dishonorably failing to pay a debt, and
one specification of engaging in a scheme to defraud a financial institution insured by the
Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 1344. The members
acquitted the appellant of several additional specifications alleging various forms of
financial misconduct. The members sentenced the appellant to a dishonorable discharge,
reduction to E-1, and restriction to base and hard labor without confinement for specific
periods. The convening authority approved only the punitive discharge and reduction to
E-1.

       The appellant raises five issues on appeal: (1) whether the record supports a
finding that the court-martial had personal jurisdiction over the appellant; (2) whether the
military judge erred by instructing the members that the terminal element for two
Article 134, UCMJ, specifications was charged in the disjunctive; (3) whether the
conviction as to one specification of failing to pay debts is legally insufficient;
(4) whether the conviction for defrauding a financial institution is legally insufficient; and
(5) whether the military judge erred by failing to instruct the members as to the elements
of attempting to defraud a financial institution. Finding no error materially prejudicial to
a substantial right of the appellant, we affirm.

                                        Background

       The appellant engaged in significant financial misconduct over the course of
several months in 2011 and 2012. He wrote checks to five different people or entities
against a bank account that had been closed several months earlier. He also opened a
bank account at another institution by depositing checks written to himself on his closed
account. The appellant was evicted from his off-base apartment for failing to pay his
rent, and left his debt unpaid for several months until his mother satisfied his obligation.
He failed to pay another debt owed on his Military Star Card for about two months.
Further facts relevant to each assignment of error are discussed below.

                                        Jurisdiction

       The charge sheet reflected that the appellant’s most recent enlistment began on
26 June 2006 for a period of five years. Charges were preferred on 17 October 2012,
more than three months after this five-year period expired. Trial defense counsel did not
challenge the court-martial’s jurisdiction, but during the members’ deliberation in
findings, the military judge noted this issue. When the military judge asked counsel
about this matter, trial defense counsel stated that either the appellant’s enlistment had
been extended by nine months (until March 2012) or that the appellant’s date of
separation was scheduled for June 2013. Despite the military judge’s direction that this
issue would be revisited, no further explanation was provided on the record.

       We review questions of jurisdiction de novo. See United States v. Kuemmerle,
67 M.J. 141, 143 (C.A.A.F. 2009). “Jurisdiction is an interlocutory issue, to be decided
by the military judge, with the burden placed on the Government to prove jurisdiction by
a preponderance of the evidence” when it is challenged at trial. United States v. Oliver,
57 M.J. 170, 172 (C.A.A.F. 2002). See also Rule for Courts-Martial (R.C.M.)
905(c)(2)(B).



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        “Members of a regular component of the armed forces, including those awaiting
discharge after expiration of their terms of enlistment” are subject to court-martial
jurisdiction. Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). “It is black letter law that
in personam jurisdiction over a military person is lost upon his discharge from the
service, absent some saving circumstance or statutory authorization.” United States v.
Howard, 20 M.J. 353, 354 (C.M.A. 1985). The mere expiration of a period of enlistment,
alone, does not alter an individual’s status under the UCMJ. United States v. Hutchins,
4 M.J. 190, 191 (C.M.A. 1978). Once attached, personal jurisdiction over the member
continues until it is terminated through a proper discharge. United States v. Harmon,
63 M.J. 98, 101 (C.A.A.F. 2006).

       The appellant did not challenge the court-martial’s jurisdiction at trial, even after
the military judge noted the issue of the apparent expiration of the appellant’s enlistment.
In fact, trial defense counsel volunteered a belief that the appellant’s date of separation
had been extended until well after the court-martial. The appellant has supplied no
reason to believe that he had been discharged before his court-martial. In addition, the
Government successfully moved on appeal to attach documents that support trial defense
counsel’s belief that the appellant’s date of separation had been extended until June 2013.
We therefore find no reason to question the court-martial’s jurisdiction over the
appellant.

      Military Judge’s Instructions Concerning Article 134, UCMJ, Specifications

       The Government charged the appellant with four specifications of making and
uttering worthless checks (dishonorably failing to maintain sufficient funds), and
four specifications of dishonorably failing to pay a debt, all in violation of Article 134,
UCMJ. The members convicted the appellant of just two specifications of dishonorably
failing to pay a debt. The appellant challenges the correctness of the military judge’s
instructions on these two specifications.

        Both specifications alleged the appellant’s actions were both to the prejudice of
good order and discipline in the armed forces and were of a nature to bring discredit upon
the armed forces. However, for both specifications the military judge instructed the
members that the Government only need prove one aspect of the terminal element. The
record of trial does not reveal the reason for the military judge’s instructions, but it is
apparent that both parties anticipated this instruction. The Government’s closing
argument focused on only the service-discrediting aspect of the terminal element, while
trial defense counsel argued to the members:

       The charges are written as being prejudicial to good order and discipline
       and service discrediting. As you will notice in the judge’s instructions, if
       it’s found beyond a reasonable doubt that it was one or the other of the
       criminal elements, it doesn’t have to be both but it has to be dishonorable.


                                             3                                    ACM 38318
Trial defense counsel did not object to the military judge’s instructions on this point.

       “The question of whether the members were properly instructed is a question of
law” we review de novo. United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
However, where counsel fails to object to an instruction at trial, we review the military
judge’s instruction for plain error. Id.; United States v. Tunstall, 72 M.J. 191, 193
(C.A.A.F. 2013); R.C.M. 920(f).

        We find no plain error in the military judge’s instruction informing the members
they may convict the appellant if they determined either aspect of the terminal element
was satisfied. The Manual for Courts-Martial specifies the elements of the general
article:

       (1) That the accused did or failed to do certain acts; and
       (2) That, under the circumstances, the accused’s conduct was to the
           prejudice of good order and discipline in the armed forces or was of a
           nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States (MCM), Part IV, ¶ 60.b. (2012 ed.) (emphasis
added). Therefore, the Manual only requires proof of either clause of the terminal
element, not both.

       Our colleagues on the Navy-Marine Corps Court of Criminal Appeals held in a
similar case that “[i]t was proper for the military judge to instruct in the disjunctive even
though the offense was charged in the conjunctive because Article 134 itself is worded in
the disjunctive.” United States v. Gifford, NMCCA 201200169, unpub. op. at 5
(N.M. Ct. Crim. App. 14 February 2013), pet. denied, 72 M.J. 457 (Daily Journal
2 August 2013). The court noted that an important distinction exists between an element
of a crime, as opposed to a method of committing the crime. Gifford, unpub. op. at 4.
The members may be instructed in the disjunctive if the fact at issue deals with a method
of committing the crime as opposed to an actual element of the crime. United States v.
Brown, 65 M.J. 356, 359 (C.A.A.F. 2007). In Gifford, the court relied on its earlier
conclusion that the terminal element is composed of merely different theories of liability,
not separate criminal elements. Gifford, unpub. op. at 5. See also United States v. Miles,
71 M.J. 671, 673 (N.M. Ct. Crim. App. 2012), pet. denied, 72 M.J. 257 (Daily Journal
19 August 2013).

       We agree with our sister court and hold that the military judge did not commit
plain error in instructing the members in the disjunctive. Our superior court has recently
stressed the distinct nature of the terminal element of Article 134, UCMJ; however, the
Court declined to overturn the Navy-Marine Corps court’s approach and has consistently
referred to the terminal element clauses as theories of liability rather than separate
criminal elements. See United States v. Goings, 72 M.J. 202, 208 (C.A.A.F. 2013)


                                              4                                    ACM 38318
(finding no prejudice to the appellant caused by the Government’s failure to allege the
terminal element in part because the appellant “defended himself against those theories of
guilt.”); Tunstall, 72 M.J. at 197 (finding no prejudice to the appellant in a similar
situation because the defense “introduced evidence for the specific purpose of negating
both theories of the terminal element of Article 134, UCMJ.”); United States v. Medina,
66 M.J. 21, 25 (C.A.A.F. 2008) (quoting United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F.
2000)) (finding the clauses of the terminal element “‘do not create separate offenses.
Instead, they provide alternative ways of proving the criminal nature of the charged
misconduct.’”). The military judge committed no plain error in instructing the members
that they may convict the appellant based on either theory of criminal liability.

      The appellant nonetheless cites United States v. Gaskins, 72 M.J. 225, 234
(C.A.A.F. 2013), for the following proposition:

      The military judge instructed the members in the disjunctive, telling them
      that they could find Appellant guilty of the Article 134, UCMJ,
      specifications if they concluded that Appellant’s conduct was either
      prejudicial to good order and discipline or service discrediting. Under these
      circumstances, both Appellant and this Court lack knowledge of a matter of
      critical significance—namely, on which theory of criminality Appellant
      was tried and convicted . . . .

       We reject the contention that Gaskins reveals plain error in the military judge’s
instruction. Our superior court’s statement in Gaskins came in the context of a case in
which the Government failed to allege the terminal element on the charge sheet.
72 M.J. at 232. The court simply noted the military judge’s instructions could not supply
the notice missing from the charge itself, because the instructions failed to inform the
appellant of which clause the Government was alleging he violated. Id. at 233–34. Here,
the Government properly alleged the terminal element on the charge sheet and therefore
no notice concern is present.

                                    Legal Sufficiency

      Charge III, Specification 6, alleged the following:

      In that [the appellant], being indebted to Rector Phillips Morse, Inc. in the
      sum of approximately $1,580.86 for past due obligations, which amount
      became due and payable on or about 24 November 2011, did, within the
      continental United States, from on or about 24 November 2011 to on or
      about 26 July 2012, dishonorably fail to pay said debt and that such
      conduct, under the circumstances, was to the prejudice of good order and
      discipline in the armed forces and was of a nature to bring discredit upon
      the armed forces.


                                            5                                   ACM 38318
       The members found the appellant: “Guilty, except the words ‘24 November’
substituting therefor the words ‘1 December,’ except the words ‘26 July’ substituting
therefor the words ‘25 July,’ of the excepted words: Not Guilty, of the substituted words:
Guilty.”

       The appellant alleges the members’ finding created a legally insufficient
conviction on this specification. He reasons that the members’ exceptions and
substitutions applied only to the first reference to “24 November” in this specification,
but not the second. Under the appellant’s reading, the members found that his debt
became due and payable on or about 1 December 2011, but they then found that he failed
to pay the debt starting on or about 24 November 2011.

       We reject the appellant’s assertion. The members’ finding excepted the words
“24 November” without limitation. There is no reason to believe this modification
applied to one reference to “24 November,” but not the other. Therefore, the members
found the debt became due and payable on or about 1 December 2011, and starting on or
about this same date the appellant failed to pay the debt. There is nothing legally
insufficient about this finding.

                               Charging in the Disjunctive

       The appellant next alleges that his conviction of Charge III, Specification 9, is
legally insufficient because the specification was alleged in the disjunctive, and the
appellant’s guilt was adjudged accordingly. The specification reads:

       In that [the appellant], did, within the continental United States, between on
       or about 9 March 2012 and on or about 14 March 2012, with intent to
       defraud Bank of America, N.A., knowingly execute or attempt to execute a
       scheme to defraud Bank of America, N.A., a financial institution and obtain
       the moneys, funds, or credits under the custody and control of Bank of
       America, N.A., by means of material false or fraudulent representations
       and, at the time, the said financial institution was then insured by the
       United States Government Federal Deposit Insurance Corporation, in
       violation of Title 18, U.S. Code Section 1344, a crime not capital.

(emphasis added). The appellant alleges the conviction under this specification is legally
insufficient because it fails to specify whether he knowingly executed the scheme or
merely attempted to execute the scheme.

       The appellant did not move to dismiss this charge and specification at trial, move
for a bill of particulars, or otherwise object to its wording. We review questions of legal


                                             6                                    ACM 38318
sufficiency under a de novo standard. United States v. Cimball Sharpton, 73 M.J. 299,
301 (C.A.A.F. 2014). We also normally review the question of whether a specification is
defective under a de novo standard. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F.
2012). However, when an appellant alleges for the first time on appeal that a
specification fails to state an offense, we review the specification for plain error. Id. at 34
(citing United States v. Cotton, 535 U.S. 625, 631–32 (2002)). Under a plain error
analysis of alleged defective specifications, the “[a]ppellant has the burden of
demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the
error materially prejudiced a substantial right of the accused.” United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011).

        We find no plain error in this specification. Military courts may disfavor charging
in the disjunctive, but there is no outright prohibition on doing so. “While charging in the
disjunctive is disfavored, under Article 134, it does not automatically render the
specification fatally defective.” Miles, 71 M.J. at 673 (footnote omitted).* Even
assuming the specification presented plain or obvious error, no material prejudice to a
substantial right of the accused resulted. “[I]n the plain error context the defective
specification alone is insufficient to constitute substantial prejudice to a material right.”
United States v. Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012) (citing Puckett v.
United States, 556 U.S. 129, 142 (2009); Cotton, 535 U.S. at 631–32). The appellant
argues he has been prejudiced because this Court cannot determine whether he was
convicted of executing the scheme or merely attempting to do so. We disagree. The
record of trial makes clear the Government demonstrated the appellant actually executed
the scheme in question. The evidence demonstrated the appellant successfully opened an
account with Bank of America by funding it with checks from a closed account, and
thereby obtained money. In addition, the two legal theories of a completed scheme to
defraud and an attempted scheme to defraud are sufficiently similar that we see no
possibility of a lack of notice to the appellant, particularly under these facts. We find no
plain error in the language of the specification, and the appellant’s conviction is legally
sufficient.



*
  The appellant mistakenly relies on United States v. Autrey, 30 C.M.R. 252 (C.M.A. 1961), for the proposition that
charging in the disjunctive is per se error. In Autrey, the Court stated: “It is settled law that an offense may not be
charged in the conjunctive or the disjunctive. In such instances, the charge is void for lack of certainty.” Id. at 253
(citations omitted). Despite this broad language, Autrey’s holding reflects a more narrow, fact-specific position
based on a determination of whether the specification properly placed the accused on notice of the charge against
him, whether it protected the accused against further prosecution for the same cause, and whether it adequately
guided the Court in determining the accused’s guilt or innocence. Id. at 253–54. Thus, where the Government
charged the appellant with wrongfully appropriating “money and/or property,” the Court held that the specification
was not sufficient because the “abominable combination of a conjunctive and a disjunctive” rendered it unclear
exactly what the appellant was alleged to have wrongfully appropriated. Id. at 254. We agree that the Government
could have chosen more precise language in this specification. See Rule for Courts-Martial 307(c)(3). However, we
see no cause for concern that the appellant lacked notice of the charge against him, is unprotected against further
prosecution for the same act, or that the members lacked sufficient guidance in determining his guilt or innocence.


                                                          7                                               ACM 38318
                              Military Judge’s Instructions

       Finally, the appellant argues the military judge erred in failing to instruct the
members on the attempt component of the specification noted immediately above. He
asserts the military judge should have instructed the members on the elements of attempt
concerning this offense rather than merely instructing the members concerning a
completed scheme to defraud the bank.

       As noted in the issue above concerning the military judge’s instructions on other
specifications under this charge, our standard of review is plain error because the
appellant lodged no objection to the military judge’s instructions. We find no such plain
error. The military judge’s instructions accurately informed the members that the
appellant could be convicted of this offense whether he executed the scheme or merely
attempted to do so, and the military judge’s instructions contained no erroneous statement
of the law. Even assuming the military judge’s instructions constituted plain or obvious
error, we see no possibility of material prejudice to a substantial right of the appellant.

                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are


                                         AFFIRMED.



             FOR THE COURT


             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             8                                   ACM 38318
