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

                                                          UNITED STATES, Appellee
                                                                      v.
                                                       Specialist STEVEN M. FALCONE
                                                        United States Army, Appellant

                                                                      ARMY 20110297

                                         Headquarters, Fort Riley
                                     James L. Varley, Military Judge
                      Lieutenant Colonel Robert A. Borcherding, Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Sasha N. Rutizer, JA (on brief).


                                                                      26 February 2013
                                                                 -----------------------------------
                                                                  SUMMARY DISPOSITION
                                                                 -----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of simple arson involving property of a
value of more than $500.00 and one specification of burning with the intent to
defraud, in violation of Articles 126 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 926, 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for eight months, and reduction to
the grade of E-1. The convening authority approved the adjudged sentence.
       The case is before us for review under Article 66, UCMJ. Appellant raises a
single assignment of error which merits a brief discussion and relief. *
                                                            
*
  Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally raises two assignments of error, neither of which merits discussion nor
relief.
 
FALCONE—ARMY 20110297

                               LAW AND DISCUSSION

       In light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are
compelled to disapprove the findings of guilty as to the Article 134, UCMJ, offense
of burning with the intent to defraud. The specification does not contain allegations of
the terminal elements under Article 134, UCMJ, and there is nothing in the record to
satisfactorily establish notice of the need to defend against a terminal element as
required under Humphries. Therefore, we now reverse appellant’s conviction for
burning with intent to defraud 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).

      In determining what effect setting aside and dismissing this charge has on
appellant’s sentence, 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 maximum punishment in regards to
confinement has been reduced from fifteen years to five years. However, evidence
of appellant’s burning with intent to defraud would still have been correctly placed
before the military judge as a matter in aggravation under Rule for Courts-Martial
1001(b)(4). This act was directly related to the arson offense of which appellant was
found guilty. Furthermore, this court is experienced and familiar with cases
involving the offense of which appellant has been convicted. We are therefore
confident, in light of the seriousness of the remaining charge, a sentence of at least a
bad-conduct discharge, confinement for four months, and reduction to the grade of
E-1 would have been adjudged.

                                   CONCLUSION

       On consideration of the entire record, the assigned error, and the allegations
raised by appellant pursuant to Grostefon, 12 M.J. 431, the findings of guilty of the
Specification of Charge II and Charge II are 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 Sales, 22 M.J. 305
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, only so much of the sentence as
provides for a bad-conduct discharge, confinement for four months, and reduction to
the grade of E-1 is AFFIRMED. All rights, privileges, and property, of which
appellant was deprived by virtue of that portion of his sentence being set aside by
this decision, are hereby ordered restored. See UCMJ arts. 58(b) and 75(a).




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FALCONE—ARMY 20110297
                        FOR THE COURT: 
                        FOR THE COURT:



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




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