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

                             UNITED STATES, Appellee
                                          v.
                      Staff Sergeant GREGORY A. ROBINSON
                            United States Army, Appellant

                                   ARMY 20100495

    United States Army Basic Combat Training Center of Excellence and Fort Jackson
                            Tara A. Osborn, Military Judge
           Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Kathleena R.
Scarpato, JA (on brief).

For Appellee: Major Amber J. Williams, JA (on brief).

                                    26 October 2011
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of attempted sodomy with a child, aggravated sexual abuse of
a child, and wrongful sexual contact, in violation of Articles 80 and 120, Uniform
Code of Military Justice, 10 U.S.C. §§ 80, 120 (2008) [hereinafter UCMJ]. *
Appellant was also convicted, pursuant to his pleas, of one specification alleging
indecent acts with a child in violation of Article 134, UCMJ. See Manual for
Courts-Martial, United States, (2002 ed.) [hereinafter MCM, 2002], Part IV, para.
87.b., deleted by Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007).
Appellant was sentenced to a dishonorable discharge, confinement for seventeen
years, and reduction to the grade of E1. The convening authority approved only so

*
 Appellant was found not guilty of one specification of attempted rape of a child,
two specifications of sodomy with a child, and one specification of indecent liberties
with a child, in violation of Articles 80, 125, and 134, UCMJ.
ROBINSON—ARMY 20100495

much of the sentence extending to a dishonorable discharge, confinement for thirteen
years, and reduction to the grade of E1.

       On 24 May 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 21 September 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). Consequently, appellant’s case is before this
court for a second review under Article 66, UCMJ. We have again considered the
record of trial, this time in light of our superior court’s decision in Fosler, and we
hold that Specification 2 of Charge IV, when liberally construed, states the offense
of indecent acts with a child.

                              LAW AND DISCUSSION
       Whether a charge and specification state an offense is a question of law that is
reviewed de novo. United States v. Roberts, __ M.J. ___, slip op. at 4 (Army Ct.
Crim. App. 14 Oct. 2011). Together, the charge and specification must “allege every
element of the offense either expressly or by necessary implication, so as to give the
accused notice and protect him against double jeopardy,” id. (quoting United States
v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)). Rule for Courts-Martial 307(c)(3). “[A]
charge and specification challenged for the first time on appeal is liberally construed
and will not be held invalid absent a clear showing of substantial prejudice to the
accused—such as a showing that the indictment is so obviously defective that by no
reasonable construction can it be said to charge the offense for which conviction was
had.” Roberts, __ M.J. at ___, slip op. at 4 (quoting United States v. Watkins, 21
M.J. 208, 209–10 (C.M.A. 1986)) (internal quotation marks omitted). Cf. Fosler, 70
M.J. at 230.

       Here, appellant did not object to the language of the indecent acts
specification, which states that he, a noncommissioned officer, rubbed his penis on
the vagina of a child under the age of sixteen with the intent to gratify his sexual
desires in violation of Article 134, UCMJ. These allegations are not so defective
that they cannot be reasonably construed to imply that appellant’s conduct was to the
prejudice of good order and discipline and of a nature to bring discredit upon the
armed forces. Furthermore, there is ample evidence in the record that appellant was
on notice of the charge against him. Appellant entered into a pretrial agreement,
pleaded guilty to this charge, and his trial defense counsel acknowledged that
appellant was on notice that the charge and specification alleged the offense of
indecent acts. See also MCM, 2002, Part IV, para. 60.c.(6)(a). Furthermore, the
military judge advised appellant of the elements of indecent acts—to include the
terminal elements—after which appellant described how his conduct was both
prejudicial to good order and discipline and service discrediting. Finally, the factual
allegations within the charge and specification sufficiently protect appellant against
double jeopardy.


                                           2
ROBINSON—ARMY 20100495

                                   CONCLUSION
       For the reasons discussed above, we hold that Specification 2 of Charge IV
necessarily implies the elements of indecent acts, provides appellant with fair notice,
and protects him against being placed twice in jeopardy. On consideration of the
entire record, the matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and in light of United States v. Fosler, 70
M.J. 225 (C.A.A.F. 2011), we find appellant’s arguments to be without merit. We
hold the findings of guilty and the sentence as approved by the convening authority
correct in law and fact. Accordingly, the findings of guilty and the sentence are
AFFIRMED.




                                         FOR THE
                                        Deputy    COURT:
                                               Clerk of Court



                                         JOANNE P. TETREAULT ELDRIDGE
                                         Deputy Clerk of Court




                                          3
