UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                YOB, KRAUSS, and BURTON
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                        Private E2 MICHAEL E. ZELLOUS
                          United States Army, Appellant

                                      ARMY 20110098

              Headquarters, Joint Readiness Training Center and Fort Polk
                        Jacqueline L. Emanuel, Military Judge
                    Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief,
supplemental brief & reply brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Daniel D. Maurer, JA (on brief, supplemental brief & reply brief).


                                     28 September 2012

                         ---------------------------------------------------
                          SUMMARY DISPOSITION ON REMAND
                         ---------------------------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant in
accordance with his pleas of failing to go to his appointed place of duty at the times
prescribed, disobeying a superior commissioned officer, disobeying a
noncommissioned officer, being disrespectful in deportment toward a
noncommissioned officer, and failing to obey a lawful general order, in violation of
Articles 86, 90, 91, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886,
890, 891, 892 (2006) [hereinafter UCMJ]. Contrary to his plea, the military judge
convicted appellant of communicating a threat in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2006). The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for 100 days, and reduction to the grade of E-1.
The convening authority credited appellant with 33 days of confinement against the
approved sentence to confinement.
ZELLOUS—ARMY 20110098

       On 3 May 2012, we issued a decision in this case, affirming the findings of
guilty and the sentence. United States v. Zellous, ARMY 20110098 (Army Ct. Crim.
App. 3 May 2012). On 14 September 2012, our superior court reversed our decision
as to Specification 2 of Charge VI, communicating a threat, in violation of Article
134, UCMJ, and as to the sentence; affirmed our decision in all other respects; and
returned the record of trial to The Judge Advocate General of the Army for remand
to this court for further consideration in light of United States v. Humphries, 71 M.J.
209 (C.A.A.F. 2012). United States v. Zellous, 71 M.J. ___ (C.A.A.F. 14 Sept.
2012). Consequently, appellant’s case is again before this court for review under
Article 66, UCMJ.

       Specification 2 of Charge VI failed to allege the terminal elements of
prejudice to good order and discipline or service-discrediting conduct. In light of
Humphries, we are compelled to disapprove the finding of guilt as to Specification 2
of Charge VI. Specification 2 of Charge VI does not contain allegations of terminal
elements under Article 134, UCMJ, and there is nothing in the record to
satisfactorily establish notice of the specific need to defend against a terminal
element as required under Humphries. Therefore, we now reverse appellant’s
conviction for communicating a threat and dismiss the defective specification which
failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011).

       On consideration of the entire record, the finding of guilty of Specification 2
of Charge VI is set aside and that specification is 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 75 days, 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
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




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