UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Specialist BOBBY D. JAMES
                           United States Army, Appellant

                                     ARMY 20081163

                             Headquarters, Fort Lewis
                           John M. Head, Military Judge
                Colonel Jeffrey C. McKitrick, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Peter Kageleiry, Jr., JA; Captain Barbara A. Snow-Martone, JA
(on brief).

For Appellee: Major Christopher B. Burgess, JA; Major Ellen S. Jennings, JA;
Major Kirsten M. Dowdy, JA (on brief).

                                       8 January 2013

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                         SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of two specifications of larceny and one
specification of wearing unauthorized insignia, in violation of Articles 121 and 134
Uniform Code of Military Justice, 10 U.S.C. §§ 921, 934 (2006) [hereinafter UCMJ].
The panel sentenced appellant to a dishonorable discharge, confinement for two
years, forfeiture of all pay and allowances, a $10,000.00 fine, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.

       On 29 July 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. United States v. James, ARMY 20081163 (Army
Ct. Crim. App. 29 July 2011). On 7 December 2011, our superior court vacated our
decision and returned the record of trial to The Judge Advocate General of the Army
for remand to this court for consideration in light of United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011), because no terminal element for the specification charged
JAMES—ARMY 20081163

under Article 134, UCMJ, was expressly alleged. United States v. James, 71 M.J. 3
(C.A.A.F. 2011).

       On 9 May 2012, we again issued a decision in this case, affirming the findings
of guilty and the sentence. United States v. James, ARMY 20081163 (Army Ct.
Crim. App. 9 May 2012). On 12 October 2012, our superior court reversed the
portion of our decision as to the Specification of Charge II, and as to the sentence,
and affirmed our decision as to the remaining charge and its specifications. United
States v. James, __ M.J. ___ (C.A.A.F. 2012). The court returned the record of trial
to The Judge Advocate General of the Army for remand to this court for further
reconsideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Id. Consequently, appellant’s case is once again before this court for review under
Article 66, UCMJ.

       In the Specification of Charge II, appellant was charged with wearing
unauthorized insignia in violation of Article 134, UCMJ. See Manual for Courts-
Martial, United States (2008 ed.), pt. IV, ¶ 113.b. This specification fails to allege
the terminal elements of prejudice to good order and discipline or service-
discrediting conduct. Pursuant to Fosler and Humphries, it was error to omit the
terminal elements from this specification, and in this case, we conclude that
appellant was materially prejudiced as a result. UCMJ art. 59(a); Humphries,
71 M.J. at 215. There is nothing in the record to satisfactorily establish notice of the
need to defend against a terminal element and the evidence was controverted as to at
least one clause of Article 134, UCMJ. See Humphries, 71 M.J. at 215–16 (holding
that to assess prejudice, “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’” (citing United States v. Cotton, 535 U.S. 625, 633
(2002); Johnson v. United States, 520 U.S. 461, 470 (1997)). Accordingly, we must
disapprove the findings of guilty as to the Article 134, UCMJ, offense previously
affirmed.

       However, we are confident “that, absent any error, the sentence adjudged
would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986). In this case, the penalty landscape is minimally changed, as
appellant remains convicted of the most serious offenses—involving the theft of
more than $130,000.00—and would face a maximum sentence to confinement of
fifteen years for the remaining offenses. Therefore, in light of the remaining
charges and their serious nature, we are confident the court would have adjudged a
sentence of at least a dishonorable discharge, confinement for two years, forfeiture
of all pay and allowances, a $10,000.00 fine, and reduction to the grade E-1.




                                           2
JAMES—ARMY 20081163

                                  CONCLUSION

       On consideration of the entire record, and in light of Humphries, the finding
of guilty of the Specification of Charge II, and Charge II, are set aside and that
charge and specification are dismissed without prejudice. Reassessing the sentence
on the basis of the error noted, the entire record, and in accordance with the
principles of Sales 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 approved sentence is AFFIRMED.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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