UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Private E2 JONNE T. WEGLEY
                          United States Army, Appellant

                                  ARMY 20100744

              Headquarters, U.S. Army Maneuver Center of Excellence
               James L. Pohl and Stephen E. Castlen, Military Judges
                 Colonel Mary M. Foreman, Staff Judge Advocate


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

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Major Christopher S. Glascott, JA (on brief).


                                   31 October 2012

                             -----------------------------------
                              SUMMARY DISPOSITION
                             -----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of malingering and soliciting another to commit an offense in
violation of Articles 115 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
915, 934 (2006) [hereinafter UCMJ]. The military judge also acquitted appellant of
maiming and conspiracy to commit maiming, but convicted appellant, contrary to his
pleas, of the lesser-included offenses of assault consummated by a battery and
conspiracy to commit an assault consummated by a battery in violation of Articles
128 and 81, UCMJ, 10 U.S.C. §§ 928, 881 (2006). The military judge sentenced
appellant to a dishonorable discharge, confinement for four months, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the dishonorable discharge, confinement for four months, forfeiture of
$968.00 pay per month until appellant’s discharge is executed, and reduction to the
grade of E-1.
WEGLEY—ARMY 20100744

       This case is before this court for review under Article 66, UCMJ. Appellant
raised the following assignment of error:

             WHEN THE GOVERNMENT FAILS TO ALLEGE AN
             ARTICLE 134 TERMINAL ELEMENT, THE CHARGE
             FAILS TO STATE AN OFFENSE UNLESS THE
             TERMINAL ELEMENT CAN BE “NECESSARILY
             IMPLIED” FROM THE LANGUAGE OF THE
             SPECIFICATION. SINCE THE MISSING TERMINAL
             ELEMENTS FROM THE SPECIFICATION OF CHARGE
             I CANNOT BE NECESSARILY IMPLIED FROM THE
             TEXT, CHARGE I IS FATALLY DEFECTIVE AND
             MUST BE DISMISSED.

      We agree and grant relief in our decretal paragraph. Furthermore, pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant raises various
claims of error. While none of these claims merits relief, one does warrant brief
discussion.

                             LAW AND DISCUSSION

       As drafted, the Specification of Charge I simply charged appellant with
wrongfully soliciting another basic trainee “to shoot the said PVT Jonne T. Wegley
in the leg.” This specification did not allege a “terminal element” of an Article 134,
UCMJ, clause one or clause two offense, specifically, whether appellant’s conduct
was prejudicial to good order and discipline or service discrediting.

       This terminal element was not included either explicitly or by necessary
implication. Pursuant to our superior court’s decisions in United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), United States v. Ballan, 71 M.J. 28
(C.A.A.F. 2012), and United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), this
specification was defective and constituted plain and obvious error. Turning to
whether this error materially prejudiced appellant’s substantial right to notice, “we
look to the record to determine whether notice of the missing element is somewhere
extant in the trial record, or whether the element is ‘essentially uncontroverted.’”
Humphries, 71 M.J. at 215–16 (citations omitted).

      The first reference of the terminal element of the Article 134, UCMJ, charge
occurred when the military judge mentioned it during a discussion of appellant’s
Rule for Courts-Martial 917 motion after the government’s case-in-chief. Even then,
appellant’s defense counsel showed that their focus was elsewhere as they
responded:




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WEGLEY—ARMY 20100744

             Well, Your Honor—and the court raises a good point I
             guess. You know, the element—the third element of that,
             if I’m not mistaken, is that it has to be to the prejudice of
             good order and discipline. Am I looking at the correct
             charge?

      Accordingly, a close reading of the record does not convince us that appellant
was provided proper notice of the terminal elements or which clause(s) of that
terminal element the government relied on.

       The notice problem of this specification was compounded by the fact that all
parties treated this as a solicitation to commit aggravated assault with a dangerous
weapon, specifically a loaded firearm. However, the plain language of the
specification merely alleges solicitation of a “shooting.” * None of the aggravators
such as “means or force likely to produce death or grievous bodily harm” or “loaded
firearm” is expressly alleged.

       Because the Specification of Charge I constituted plain and obvious error and
resulted in material prejudice to appellant’s substantial right to notice, appellant’s
conviction for soliciting another to commit an offense cannot stand.

                                GROSTEFON ISSUE

       Generally, while consent is not a defense to aggravated assault, it remains a
defense to simple battery as it typically turns what would otherwise be an offensive
and wrongful touching to a lawful one. However, the consent must be lawful and
one society is willing to recognize. See United States v. Bygrave, 46 M.J. 491
(C.A.A.F. 1997). In the case of a basic trainee consenting to another basic trainee
intentionally shooting him in the leg with a government issued rifle in order to get
out of the Army and receive disability, the conviction for unlawful battery is
factually and legally sufficient. See United States v. Arab, 55 M.J. 508, 516 (Army
Ct. Crim. App. 2001) (identifying that consent “does not render what would
otherwise be a battery lawful under all circumstances” because public policy
concerns can affect the lawfulness of a touching and recognizing the military and
governmental interest in protecting its members from injury or harm).




*
 The Specification of Charge I provided “In that PVT (E-1) Jonne T. Wegley, U.S.
Army, did, at or near Fort Benning, Georgia, on or about 11 May 2009, wrongfully
solicit PVT (E-1) [WH] to shoot the said PVT Jonne T. Wegley in the leg.”




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WEGLEY—ARMY 20100744

                                   CONCLUSION

       On consideration of the entire record, the finding of guilty of Charge I 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 only so much of the sentence as provides for a bad-conduct discharge,
confinement for two months, forfeiture of $968.00 pay per month until appellant’s
discharge is executed, and reduction to the grade of E-1. All rights, privileges, and
property of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and
75(a).

                                        FOR THE COURT:




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




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