
                UNITED STATES ARMY COURT OF CRIMINAL APPEALS

                                   Before
                        HOLDEN, HOFFMAN, and SULLIVAN
                          Appellate Military Judges

                           UNITED STATES, Appellee
                                     v.
                   Private First Class KEITH T. ROYAL, JR.
                        United States Army, Appellant

                                ARMY 20071295

                          Headquarters, Fort Carson
                       Debra Boudreau, Military Judge
               Colonel Michael W. Meier, Staff Judge Advocate

For Appellant:  Colonel Allen F. Bareford, JA; Major William F. Fischbach
III, JA.

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA.


                               20 August 2008

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

Per Curiam:

      This case is before us for review under Article 66, Uniform Code of
Military Justice, 10 U.S.C. §866 [hereinafter UCMJ].  Although appellant’s
case was submitted to us on the merits, we find error in the findings of
the court-martial as described below.

      Appellant was charged, inter alia, with assault with intent to commit
rape, in violation of Article 134, UCMJ (Specification 1 of Charge IV).  He
pled guilty to the lesser included offense of assault consummated by a
battery, in violation of Article 128, UCMJ; however, the language “with
intent to commit rape” was not excepted from the specification at trial.
In his initial post-trial action, the convening authority disapproved the
charged language “with intent to commit rape” and approved the remainder of
Specification 1 of Charge IV.

      In addition to the language disapproved by the convening authority,
appellant’s providence inquiry did not support his plea to one of the
assaultive acts alleged in the specification, specifically, the language
“removing her clothes.”  Accordingly, the court affirms only so much of the
finding of guilty of Specification 1 of Charge IV, in violation of Article
128, UCMJ, as provides:


           In that Private First Class Keith T. Royal, Jr., U.S. Army, did,
           at or near Fort Carson, Colorado, on or about 14 October 2006,
           unlawfully commit an assault upon Mrs. M.M.H. by dragging her up
           the stairs, pushing her down on the ground, slapping the left
           side of her head, slapping her face and head, and punching her
           in the arm.

                                  DECISION

     The remaining findings of guilty are affirmed.  Reassessing the
sentence on the basis of the error noted, the entire record, and applying
the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and
United States v. Moffeit, including Judge Baker’s concurring opinion, 63
M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.

                                  FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court

