UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                            TOZZI, CELTNIEKS, BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                    Staff Sergeant STEPHEN M. WILLIAMS
                          United States Army, Appellant

                                  ARMY 20160006

                            Headquarters, Fort Carson
                       Lanny J. Acosta, Jr., Military Judge
                  Colonel Gregg A. Engler, Staff Judge Advocate


For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Christopher D.
Coleman, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA; Captain
Bryan A. Osterhage, JA; Captain Joshua B. Fix, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain John Gardella, JA (on brief).


                                   31 August 2017

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his plea, of one specification of absence from his unit for over thirty
days terminated by apprehension in violation of Article 86, Uniform Code of
Military Justice, 10 U.S.C. § 886 (2012) [hereinafter UCMJ]. The military judge
also convicted appellant, contrary to his plea, of one specification of larceny of
property of a value greater than $500.00, in violation of Article 121, UCMJ. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
eighteen months, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged. The convening authority also credited appellant
with nineteen days confinement credit against the sentence to confinement.
WILLIAMS—ARMY 20160006

        This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error, one of which merits discussion and relief, and one which
is rendered moot by our decision in this case. In particular, appellant argues that the
military judge committed error when he allowed the trial counsel to amend the
larceny specification upon which appellant was convicted, such amendment
constituting a major change to the specification in violation of Rule for Court
Martial [hereinafter R.C.M.] 603. We agree and provide relief in our decretal
paragraph. Appellant’s personal submissions pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), other than the issue discussed below, do not warrant
relief.

                                  BACKGROUND

      Appellant was originally charged, inter alia, with the following violation of
the UCMJ:

             CHARGE II: Violation of the UCMJ, Article 121.

             ....

             Specification 3: In that [appellant], U.S. Army, did, at or
             near Fort Carson, Colorado and at or near Fort Leonard
             Wood, Missouri, between on or about 20 January 2013 and
             on or about 16 February 2013, steal U.S. Currency, of a
             value greater than $500, the property of Military Star
             Exchange Credit Program.

At trial, the military judge amended the above specification, over defense objection,
to read:

             CHARGE II: Violation of the UCMJ, Article 121.

             Specification 3: In that [appellant], U.S. Army, did, at or
             near Fort Carson, Colorado and at or near Fort Leonard
             Wood, Missouri, between on or about 20 January 2013 and
             on or about 16 February 2013, steal cards, of a value
             greater than $500, the property of Military Star Exchange
             Credit Program.

       The military judge found appellant guilty of the above specification. We
agree with appellant that the change in the specification from larceny of “currency”
to larceny of “cards” was a major change. It is true, as the government argues, that
appellant was on notice of the conduct he was accused of committing from the
discovery materials and bill of particulars provided by the government—stealing gift

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WILLIAMS—ARMY 20160006

cards purchased with a Military Star Card. It is also true that appellant was given a
continuance by the military judge to investigate the amended specification, so he
was not surprised on the day of trial regarding the conduct he was defending against.
However, the application of R.C.M. 603 against the backdrop of recent case law
from our superior court leads us to the conclusion that the change to Specification 3
of Charge II constituted a major change.

                              LAW AND DISCUSSION

      In pertinent parts, R.C.M. 603 reads:

             Rule 603. Changes to charges and specifications

             (a) Minor changes defined. Minor changes in charges and
             specifications are any except those which add a party,
             offenses, or substantial matter not fairly included in those
             previously preferred, or which are likely to mislead the
             accused as to the offenses charged.

             ....

             (d) Major changes. Changes or amendments to charges or
             specifications other than minor changes may not be made
             over the objection of the accused unless the charge or
             specification affected is preferred anew.

R.C.M. 603(a), (d).

       In United States v. Reese, our superior court applied ordinary rules of
statutory construction in interpreting R.C.M. 603 and stated, “To the extent our
precedent has required a separate showing of prejudice under these circumstances [a
major change over defense objection], it is overruled: absent ‘preferral anew’ and a
second referral there is no charge to which jurisdiction can attach, and Article 59(a),
UCMJ, is not, in fact, implicated.” 76 M.J. 297, 302 (C.A.A.F. 2017) (internal
citation omitted).

       In this case, appellant’s conduct consisted of stealing gift cards by using a
Military Star Card account he set up in the name of one of his subordinates, a
Specialist Williams, and designating himself as an authorized user of the card.
There is no doubt that appellant did not steal U.S. currency as charged in the
original specification. It is also clear that there is a difference between U.S.
currency and gift cards. On its face the amended specification adds a substantial
matter not fairly included in the original charge, namely what was stolen. While
they could be used for the same purposes, gift cards are not U.S. currency. This

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WILLIAMS—ARMY 20160006

change is not of the type to amend “trivial mistakes.” United States v. Longmire, 39
M.J. 536, 538 (A.C.M.R. 1994). This change to the specification was a major
change.

       It is not dispositive that appellant actually knew the basis for Specification 3
of Charge II was the larceny of “cards” and not “U.S. currency” because a prejudice
analysis under these circumstances is no longer appropriate after Reese. What is
dispositive is that the change to Specification 3, made over defense objection, added
a substantial matter not fairly included in the original charge, thus rendering it a
major change under R.C.M. 603(a). “The practical effect is that if a change is major
and the defense objects, the charge has no legal basis and the court-martial may not
consider it unless and until it is ‘preferred anew,’ and subsequently referred.”
Reese, 76 M.J. at 301 (quoting R.C.M. 603(d)).

       Appellant also alleges his defense counsel were ineffective by alerting the
government to a factual impossibility in the government’s case (i.e., that appellant
did not steal “U.S. currency”) before jeopardy attached. This assignment of error is
directly related to the same Specification 3 of Charge II discussed above and is moot
in light of our decision.

                                   CONCLUSION

       The findings of guilty of Specification 3 of Charge II are set aside. The
remaining findings of guilty are affirmed. The sentence is set aside. The case is
returned to the same or a different convening authority. A rehearing is directed on
Specification 3 of Charge II and the sentence. If the convening authority determines
that a rehearing on that specification is impracticable, the convening authority may
dismiss that specification and charge, and order a rehearing on the sentence only. If
the convening authority determines that a rehearing on the sentence is likewise
impracticable, the convening authority may take any other lawful action.

                                            FORTHE
                                           FOR  THECOURT:
                                                    COURT:




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




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