                       UNITED STATES, Appellee

                                    v.

                      Darrian S. NEALY, Private
                         U.S. Army, Appellant

                              No. 11-0615

                       Crim. App. No. 20100654

       United States Court of Appeals for the Armed Forces

                       Argued December 13, 2011

                        Decided March 30, 2012

RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.


                                 Counsel

For Appellant: Captain Kristin B. McGrory (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, and
Major Jacob D. Bashore (on brief).

For Appellee: Captain Kenneth W. Borgnino (argued); Major
Katherine S. Gowel and Major Amber J. Williams (on brief).

Military Judge:   Wendy P. Daknis




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nealy, 11-0615/AR 


     Judge RYAN delivered the opinion of the Court.

     A military judge, sitting alone as a general court-martial,

convicted Appellant, pursuant to his pleas, of disobeying a

noncommissioned officer, use of provoking speech,1 assault with a

deadly weapon, and communicating a threat, in violation of

Articles 91, 117, 128, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 891, 917, 928, 934 (2006).    The military

judge sentenced Appellant to a bad-conduct discharge,

confinement for five months, forfeiture of all pay and

allowances, and reduction to E-1.     The convening authority

approved the sentence and ordered that it be executed except for

the bad-conduct discharge.   The United States Army Court of

Criminal Appeals (ACCA) summarily affirmed the findings of

guilty and sentence.   United States v. Nealy, No. ARMY 20100654,

slip op. at 1 (A. Ct. Crim. App. May 16, 2011).

     In this case, Appellant (1) pleaded guilty to an offense

that is not, under this Court’s decision in United States v.

Jones, 68 M.J. 465 (C.A.A.F. 2010), a lesser included offense

(LIO) of the charge referred to the court-martial, but which is

listed as an LIO in the Manual for Courts-Martial, United States


                                                        
1
     Relevant to Specified Issue I, Appellant was charged with two
specifications of communicating a threat, violations of Article
134, UCMJ, not one specification of use of provoking language
and one specification of communicating a threat, violations of
Articles 117 and 134, UCMJ, respectively.



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United States v. Nealy, 11-0615/AR 


(MCM),2 and (2) also pleaded guilty to a charged violation of

Article 134, UCMJ, where the specification failed to allege

either clause 1 or 2 of the terminal element of Article 134,

UCMJ.3

      First, we decline to divest the convening authority’s

properly convened court-martial of jurisdiction over referred

charges or listed LIOs of those charges where the entire record

suggests that everyone involved believed that the Article 117,

UCMJ, offense was an LIO of the Article 134, UCMJ, offense, and

that, therefore, the convening authority intended it to be

referred to court-martial.         Second, while it was error to fail

to allege the terminal element of Article 134, UCMJ, expressly



                                                        
2
     See MCM pt. IV, para. 110.d.(1) (2008 ed.).
3
  Appellant submitted a petition for a grant of review with no
assignment of error, and, on August 15, 2011, this Court
specified the following two issues:

      I. APPELLANT WAS CHARGED WITH COMMUNICATING A THREAT UNDER
      ARTICLE 134, BUT WAS CONVICTED PURSUANT TO HIS PLEA OF
      USING PROVOKING SPEECH IN VIOLATION OF ARTICLE 117. IN
      LIGHT OF UNITED STATES v. JONES, 68 M.J. 465 (2010) CAN THE
      CONVICTION BE SUSTAINED?

      II. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION
      THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL
      ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S
      HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v.
      UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA,
      MILLER, AND JONES.

United States v. Nealy, 70 M.J. 333 (C.A.A.F. 2011) (order
granting review).

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United States v. Nealy, 11-0615/AR 


or by necessary implication, under the facts of this case, there

was no prejudice to Appellant’s substantial rights.

                      I.   FACTUAL BACKGROUND

     This case relates to a fight that took place on April 21,

2010, after a noncommissioned officer (NCO) overheard Appellant

making a thinly veiled threat against him.      When the NCO

attempted to disarm Appellant of a knife, Appellant stabbed the

NCO in the back.   After this event, Appellant was taken into

custody, and, on April 29, 2010, charges were preferred against

Appellant.   As referred on June 2, 2010, by the convening

authority to a general court-martial, Charge III alleged two

specifications of communicating a threat, in violation of

Article 134, UCMJ.

     Prior to his court-martial proceedings, Appellant submitted

an “Offer to Plead Guilty” and, after the convening authority

rejected this offer, a “Revised Notice of Pleas and Forum.”     In

both of these documents, as to Charge III, Specification 1,

Appellant offered to plead not guilty to the Article 134, UCMJ,

offense, but guilty to the “lesser included offense” of

provoking speech, in violation of Article 117, UCMJ.4     To Charge

III, Specification 2, Appellant offered to plead guilty to the


                                                        
4
     At all relevant times during the proceedings, Article 117,
UCMJ, “provoking speech[],” was listed in the MCM as an LIO of
Article 134, UCMJ, communicating a threat. MCM pt. IV, para.
110.d.(1).

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United States v. Nealy, 11-0615/AR 


charged offense, but with minor changes to the language in the

specification.

        During the plea inquiry for Charge III, Specification 1,

the military judge noted that Appellant was pleading guilty to

an LIO of the charged offense and that Appellant had provided

the draft specification for that violation.    The military judge

then informed Appellant of the elements of a violation of

Article 117, UCMJ, and had him describe in his own words how his

conduct satisfied those elements.

        The military judge then conducted a plea inquiry for Charge

III, Specification 2.    When explaining the elements of

communicating a threat in violation of Article 134, UCMJ, the

military judge included and defined clauses 1 and 2 of the

terminal element of Article 134, UCMJ.    Appellant then admitted

that his actions were “prejudicial to good order and discipline”

and explained why he believed this to be true.

        After the plea inquiry, the Government sought to prove

Charge III, Specification 1, as charged, rather than acquiesce

to Appellant’s plea of guilty to the violation of Article 117,

UCMJ.    Notwithstanding the Government’s efforts, the military

judge convicted Appellant, pursuant to his plea, of the “lesser

included offense of provoking speech in violation of Article

117, [UCMJ].”




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United States v. Nealy, 11-0615/AR 


                         II.    JURISDICTION

     As a threshold matter, we must address Appellant’s claim

that the court-martial did not have jurisdiction over the

Article 117, UCMJ, offense of provoking speech that he himself

drafted, because, under Jones, 68 M.J. 465, the offense to which

he pleaded guilty is not in fact an LIO of the Article 134,

UCMJ, offense that was referred to the court-martial.

Therefore, Appellant reasons, the convening authority did not

refer the Article 117, UCMJ, offense and the court-martial

lacked jurisdiction to accept his plea of guilty to that

specification.   We disagree.

     “Jurisdiction is the power of a court to try and determine

a case and to render a valid judgment.    Jurisdiction is a legal

question which we review de novo.”     United States v. Harmon, 63

M.J. 98, 101 (C.A.A.F. 2006) (quotation marks omitted); see also

United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005).

“Generally, there are three prerequisites that must be met for

courts-martial jurisdiction to vest:    (1) jurisdiction over the

offense, (2) personal jurisdiction over the accused, and (3) a

properly convened and composed court-martial.”    Harmon, 63 M.J.

at 101.

     Appellant does not argue that the court-martial lacked

subject matter jurisdiction over the offense under Article 18,

UCMJ, 10 U.S.C. § 818 (2006), or that it lacked personal


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United States v. Nealy, 11-0615/AR 


jurisdiction over him under Article 2(a), UCMJ, 10 U.S.C.

§ 802(a) (2006).   Nor does he allege that the court-martial

itself was improperly convened, Rule for Courts-Martial (R.C.M)

504, that it was convened by an unqualified authority, Article

22(a), UCMJ, 10 U.S.C. § 822(a) (2006), or that there was “any

defect in the court’s jurisdiction over the originally preferred

charge,” United States v. Henderson, 59 M.J. 350, 354 (C.A.A.F.

2004).

     Instead, Appellant relies on a provision of the MCM, R.C.M.

201, “Requisites of court-martial jurisdiction,” which provides

that “[e]ach charge before the court-martial must be referred to

it by competent authority.”    R.C.M. 201(b)(3).   Referral is

defined, generally, as “the order of a convening authority that

charges against an accused will be tried by a specified court-

martial.”   R.C.M. 601(a).   This Court has held that where a

particular charge or specification was not referred to a court-

martial, either formally or informally, by the officer who

convened the court-martial (or his successor in command), the

court-martial lacks jurisdiction to enter findings over that

charge or specification.     United States v. Wilkins, 29 M.J. 421,

424 (C.M.A. 1990).   The rationale that the Court provided is

that, “in the context of the history of American courts-

martial,” it is the convening authority’s personal decision, and




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United States v. Nealy, 11-0615/AR 


a prerequisite to jurisdiction, that a charge be referred to

court-martial.   Id. at 423-24.

     In Wilkins, the Court determined that the court-martial had

jurisdiction over a charge where the convening authority

referred one offense on the charge sheet, but entered into a

pretrial agreement whereby he agreed to accept a plea of guilty

from the appellant to a different charge that also was not an

LIO of the original charge.   Id. at 424-25.   Discussing Wilkins,

the Court in Henderson, 59 M.J. at 353-54, highlighted the fact

that in Wilkins the convening authority had the authority to

refer both the offense charged and the offense to which the

appellant pleaded guilty, and that the court-martial had subject

matter jurisdiction over both offenses.   Compare Wilkins, 29

M.J. at 424-25 (above), with Henderson, 59 M.J. at 353-54

(highlighting these aspects of Wilkins in order to distinguish

its finding of jurisdictional error where the court-martial

lacked subject matter jurisdiction over the offense charged, ab

initio).

     It is uncontested that the convening authority in this case

had the authority to refer both the Article 117, UCMJ, and

Article 134, UCMJ, offenses, and that the court-martial had

subject matter jurisdiction over the offenses and personal

jurisdiction over the accused.    Furthermore, we have held that

when a convening authority refers a charge to a court-martial,


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United States v. Nealy, 11-0615/AR 


any LIOs of that charge are referred with it, and need not be

separately charged and referred.       United States v. Virgilito, 22

C.M.A. 394, 396, 47 C.M.R. 331, 333 (1973); see also R.C.M.

307(c)(4) Discussion (“In no case should both an offense and a

lesser included offense thereof be separately charged.”).       This

holding is consonant with other provisions of the UCMJ and the

MCM.   See Article 79, UCMJ, 10 U.S.C. § 879 (2006) (“An accused

may be found guilty of an offense necessarily included in the

offense charged . . . .”); R.C.M. 910(a)(1) (“An accused may

plead as follows:   guilty; not guilty to an offense as charged,

but guilty of a named lesser included offense . . . .”); see

also Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2006) (“Any

reviewing authority with the power to approve or affirm a

finding of guilty may approve or affirm, instead, so much of the

finding as includes a lesser included offense.”).      It is,

therefore, significant that at all relevant times during

Appellant’s proceedings, Article 117, UCMJ, “provoking

speech[],” was listed in the MCM as an LIO of Article 134, UCMJ,

communicating a threat.   See MCM pt. IV, para. 110.d.(1).

       We agree with the parties, that under this Court’s more

recent jurisprudence, Article 117, UCMJ, provoking speech, is

not in fact an LIO of Article 134, UCMJ, communicating a threat.

See Jones, 68 M.J at 470 (adopting the elements test and holding

that an offense is an LIO of another offense only “[i]f all of


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United States v. Nealy, 11-0615/AR 

the elements of offense X are also elements of offense Y” such

that the “lesser offense is literally, and hence ‘necessarily,’

included in the greater”).   However, in our view, the entire

record suggests that everyone involved in the case believed that

the Article 117, UCMJ, offense was in fact an LIO of the Article

134, UCMJ, offense and that when the convening authority in this

case referred the charge and specification at issue he also, by

implication, intended to refer any offense listed as an LIO in

the MCM.   It is the convening authority’s intent that controls

for purposes of R.C.M. 201(b)(3).      Also, if the convening

authority perceives that the referral authority has been

infringed, the convening authority may address this concern

under Article 60(e)(3), UCMJ, 10 U.S.C. § 860(e)(3) (2006) (“A

rehearing may be ordered by the convening authority . . . if he

disapproves the findings and sentence and states the reasons for

disapproval of the findings.”).

     In light of the facts that the convening authority had the

authority to refer the offenses and that the properly convened

court-martial had subject matter jurisdiction over the offenses

and personal jurisdiction over the accused, the better view is

that, under the facts of this case, the convening authority

intended to, and did, refer any listed LIO when he referred the




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United States v. Nealy, 11-0615/AR 

Article 134, UCMJ, offense.5    We are unwilling to divest the

convening authority’s properly convened court-martial of

jurisdiction over the LIOs of an offense listed in the MCM at

the time of referral.

III.   CHARGE III, SPECIFICATION 2:   ARTICLE 134, UCMJ, VIOLATION

       Appellant was also convicted, pursuant to his plea, of a

separate specification of a charged violation of Article 134,

UCMJ, communicating a threat.    As referred on June 2, 2010, the

specification to which Appellant pleaded guilty on August 9,

2010, did not allege clause 1 or 2 of the terminal element of

Article 134, UCMJ.   See R.C.M. 307(c)(3).   However, here, as in

United States v. Ballan, “[t]he Article 134, UCMJ,

specification[] [was] legally sufficient at the time of trial

and [is] problematic today only because of intervening changes

in the law.”   71 M.J. 28, 34 n.4 (C.A.A.F. 2012).   As we noted

in Ballan:

       [I]n the context of a specification that was legally
       sufficient at the time of trial and to which a plea of
       guilty was entered and accepted, the real question is
       whether we will find prejudice and disturb the
       providence of a plea where the providence inquiry
       clearly delineates each element of the offense and


                                                        
5
     This conclusion is not inconsistent with the Court’s holding in
Jones, which addressed constitutional rights and the limits on
the President’s ability to dictate substantive criminal law. 68
M.J. at 471-72. Here, on the other hand, we are addressing the
interplay between presidentially listed LIOs and a
presidentially created jurisdictional prerequisite, R.C.M.
201(b)(3).

                                 11
United States v. Nealy, 11-0615/AR 

     shows that the appellant understood “to what offense
     and under what legal theory [he was] pleading guilty.”

Id. at 34 (quoting United States v. Medina, 66 M.J. 21, 26

(C.A.A.F. 2008)) (alteration in original).   In that case,

we answered this question in the negative, tested the error

for prejudice, and found none.   Ballan, 71 M.J. at 34-36.

Applying that same framework here, we likewise conclude

that Appellant was not prejudiced.

     The only relevant factual difference between Appellant’s

Article 134, UCMJ, conviction and the conviction in Ballan is

that, in Ballan, the appellant entered into a pretrial agreement

and submitted a stipulation of fact prior to trial -- the latter

of which contained the terminal element for each Article 134,

UCMJ, specification.   See id. at 31.   This difference does not,

however, override the fact that the properly conducted

providence inquiry in this case, as in Ballan, ensured “notice

of the offense of which [Appellant] may be convicted and all

elements thereof before his plea [was] accepted and, moreover,

protect[ed] him against double jeopardy.”    Id. at 35.

     During the plea colloquy, the military judge described and

defined clauses 1 and 2 of the terminal element of the Article

134, UCMJ, offense.    Here, as in Ballan, “Appellant was required

to admit that his actions violated either clause 1 or 2 of the

terminal element of [the Article 134, UCMJ] offense, and he did



                                 12
United States v. Nealy, 11-0615/AR 

in fact admit that his actions were” prejudicial to good order

and discipline, before his plea could be accepted by the

military judge.   See id. (distinguishing Medina, 66 M.J. at 28,

where the admission to clause 1 or 2 of the terminal element of

Article 134, UCMJ, was superfluous).

     Appellant was on notice of clause 1 of the terminal element

of Article 134, UCMJ, before his plea of guilty was accepted and

demonstrated that he “‘clearly understood the nature of the

prohibited conduct’ as being in violation of clause 1” of

Article 134, UCMJ.   See Medina, 66 M.J. at 28 (quoting United

States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F. 2005)); see also

Ballan, 71 M.J. at 35.   In sum:

     [W]hile it was error in a retroactive sense to accept
     a plea of guilty to an Article 134, UCMJ, charge and
     specification, which did not explicitly or by
     necessary implication contain the terminal element,
     under the facts of this case, the showing of error
     alone is insufficient to show prejudice to a
     substantial right.

Ballan, 71 M.J. at 36 (citing Puckett v. United States, 556 U.S.

129, 142 (2009) (finding that the mere showing of error cannot

be “recast” as the effect on substantial rights)).

                           IV.     DECISION

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United states v. Nealy, No. 11-0615


     BAKER, Chief Judge (concurring in the result):

     In the military justice system, the convening authority

plays a central role as both quasi-judicial decision maker and

as commander, the custodian of good order and discipline.    These

roles are codified in Rules for Courts-Martial (R.C.M.) 201 and

601 of the Manual for Courts-Martial, United States (MCM).

R.C.M. 201(b)(3) states the following:

     (b) Requisites of court-martial jurisdiction . . . [F]or a
     court-martial to have jurisdiction:

        . . . .

        (3) Each charge before the court-martial must be
        referred to it by competent authority.

R.C.M. 601(a) complements this provision and states:

     (a) In general. Referral is the order of a convening
     authority that charges against an accused will be tried by
     a specified court-martial.

     The MCM allows for referral of charges only by the

convening authority, and not the staff judge advocate, the

military judge or the parties themselves.   This rule is

jurisdictional in nature; if the charge is not referred by the

convening authority, the court-martial does not have

jurisdiction to proceed, whether the parties agree to

jurisdiction or not.   United States v. Wilkins, 29 M.J. 421, 424

(C.M.A. 1990).    Charges can be referred expressly or by

implication, as in the case of a lesser included offense (LIO),

which is necessarily included in the referred charge, but the
United states v. Nealy, No. 11-0615


greater offense must be referred.    See MCM pt. IV, para. 3.b.

In addition, this Court has recognized a doctrine of “functional

equivalence,” where, as in the case of United States v. Ballan,

the process of referral is incomplete, but the intent of the

convening authority to refer is express and evidenced in some

express manner.   71 M.J. 28, 32 (C.A.A.F. 2012) (reiterating the

holding in Wilkins, 29 M.J. at 424, that the convening

authority’s entry into the pretrial agreement was the

“functional equivalent” of a referral order and that it

satisfied R.C.M. 201(b)(3)).   However, before now, this Court

has not concluded that the convening authority’s intent to refer

an offense to trial could be inferred, in the complete absence

of any evidence in the record of the convening authority’s

intent, solely because “everyone involved believed” it had been

referred.   United States v. Nealy, __ M.J. __ (3) (C.A.A.F.

2012).   This Court should require something more than a belief

that something has been done in order to establish jurisdiction.

See R.C.M. 201(b)(3).

     Based on my dissenting opinions in United States v. Fosler,

70 M.J. 225, 240 (C.A.A.F. 2011), and United States v. Jones, 68

M.J. 465, 473 (C.A.A.F. 2010), as well as this Court’s opinion

in United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011), decided

after Jones, I conclude the specification put Appellant on

notice that the Article 117, Uniform Code of Military Justice


                                 2
United states v. Nealy, No. 11-0615


(UCMJ), 10 U.S.C. § 917 (2006), offense as charged was an LIO of

Article 134, UCMJ, 10 U.S.C. § 934 (2006).   Therefore,

consistent with R.C.M. 201 the charge was properly referred as

an actual LIO of Article 134, UCMJ.   As a result, I concur in

the result.   However, if Article 117, UCMJ, was not in fact an

LIO, as the majority concludes, I do not see how one can reach

the conclusion that the court-martial had jurisdiction under

R.C.M. 201.

     First, there is no indication whatsoever that the convening

authority intended to refer an Article 117, UCMJ, offense to

court-martial.   Thus, this case is easily distinguished from

Ballan where the convening authority signed a pretrial agreement

with the accused expressly indicating his intent to refer the

offense later determined under Jones to be a “non-LIO.”

“‘[I]mplicit’ in the convening authority’s entry into a pretrial

agreement that provided for a plea of guilty to the charge and

specification of indecent acts with another, in violation of

Article 134, UCMJ, ‘was his personal decision that the . . .

charge be referred to the general court-martial.’”   Ballan, 71

M.J. at 32 (quoting Wilkins, 29 M.J. at 424) (alteration in

original).    In this case, the majority concludes that the trial

participants’ “belief” that the Article 117, UCMJ, offense was

an LIO of the Article 134, UCMJ, offense, along with the fact

that Article 117, UCMJ, was listed in the MCM as an LIO of this


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United states v. Nealy, No. 11-0615


particular Article 134, UCMJ, offense was enough to demonstrate

the convening authority’s intent to refer the offense of

provoking speech.

     The problem with this approach is that the convening

authority referred the case six weeks after Jones; so it

suggests the convening authority is presumed to know the

contents of the MCM, but not the case law of this Court.     In

reality, in the absence of any written indication whatsoever, a

presumption that the convening authority intended to follow the

case law is no more or less speculative than the inference that

the convening authority intended to follow the MCM, which this

Court had already concluded was inoperative with respect to

certain LIOs.   Moreover, Appellant’s court-martial did not occur

until four months after Jones, at which point it should have

been clear to all the parties, including the military judge,

that the there was no referral in this case because Article 117,

UCMJ, was no longer an LIO of Article 134, UCMJ.   Further, as

this case was on direct appeal at the time Fosler was decided,

it would seem that Appellant should get the benefit of the

Fosler decision.

     Second, the majority’s jurisdictional conclusion is

inconsistent with the analysis in Jones.   In Jones, the Court

concluded that the President’s listing of an offense in the MCM

as an LIO of another offense did not provide notice to the


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United states v. Nealy, No. 11-0615


appellant of the LIO, because only the statutory elements test

could be used to determine an LIO and provide such notice.

Jones, 68 M.J. at 471.1   However, the Court now concludes that

for the purpose of jurisdiction, Article 117, UCMJ, is an LIO of

Article 134, UCMJ, because it was listed in the MCM at the time,

but it is not an LIO for the purposes of defining Appellant’s

criminal exposure or protecting against double jeopardy, because

at the same time it is not an LIO under Jones.

     It would seem logical that either Article 117, UCMJ, is an

LIO of Article 134, UCMJ, or it is not; the answer instead is

that it depends.   If the distinction is found in the fact that

all parties to this case in the context of a guilty plea

operated on the assumption and understanding that Article 117,

UCMJ, was an LIO of Article 134, UCMJ, then it is not clear why

those same facts would not have been sufficient in this Court’s

recent line of LIO cases where all the parties, including the

military judges, operated on the understanding that the offenses

in question were LIOs.

     For the foregoing reasons I concur in the result, but

respectfully do not join the Court’s analysis in reaching that

result.



1
  This view was later modified in Arriaga to indicate that the
specification itself might provide notice as well. 70 M.J. at
55.

                                 5
