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

                            UNITED STATES, Appellee
                                         v.
                          Private E1 BRANDON K. PRICE
                           United States Army, Appellant

                                      ARMY 20100382

         Headquarters, United States Army Maneuver Center of Excellence
                            James Pohl, Military Judge
                 Colonel Tracy A. Barnes, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Stephen J.
Rueter, JA.

For Appellee: Major Amber J. Williams, JA.

                                      28 October 2011
                        ----------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                        ----------------------------------------------------

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
contrary to his pleas, of conspiracy to commit burglary, absence without leave,
robbery, aggravated assault, simple assault, and burglary, in violation of Articles 81,
86, 122, 128, and 129, Uniform Code of Military Justice, 10 U.S.C. §§ 81, 86, 122,
128, 129 (2008) [hereinafter UCMJ]. * Appellant was also convicted, contrary to his
pleas, of one specification alleging wrongful communication of a threat in violation
of Article 134, UCMJ. See Manual for Courts-Martial, United States, (2008 ed.)
[hereinafter MCM], Part IV, para. 110.b. Appellant was sentenced to a bad-conduct
discharge and confinement for twelve months. The convening authority approved
the adjudged sentence and credited appellant with sixty-four days against the
approved sentence to confinement.

*
 Appellant was found not guilty of one specification of conspiracy to commit
burglary, and one specification of wrongful communication of a threat, in violation
of Articles 81, and 134, UCMJ.
PRICE—ARMY 20100382

       On 30 March 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 VI, when liberally construed, states the offense
of wrongful communication of a threat.

                              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).

       Here, appellant pleaded not guilty to the charge of wrongful communication
of a threat—which in this case did not expressly allege that appellant’s conduct was
to the prejudice of good order and discipline in the armed forces. However,
appellant did not object to the language of the charge and specification at trial, nor
did he object in his post-trial matters to the convening authority, in his appeal to this
court, or in his appeal to our superior court. Appellant’s silence on this issue speaks
volumes and informs our decision on this matter. See United States v. Hoskins, 17
M.J. 134, 136 (C.M.A. 1984) (listing factors that directly impact the ultimate
decision of whether a charge and specification necessarily imply an element).
Where a charge and specification are not challenged at trial, their language is to be
liberally construed. Roberts, __ M.J. at ___, slip op. at 4 (citing United States v.
Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler, 70 M.J. at 230. This
liberal rule of interpretation is applicable even where an appellant does not plead
guilty. United States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); Roberts, __ M.J. at
___, slip op. at 5; United States v. Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

       Facially, the language of the charge and specification in this case embrace an
allegation of conduct prejudicial to good order and discipline. In total, the charge
and specification state that appellant wrongfully threatened to beat and kill another
soldier in violation of Article 134, UCMJ. It is self-evident that threatening to beat
and kill other soldiers disrupts good order and discipline. The alleged threats in this
case directly impact the order and discipline of a unit, and, therefore, necessarily
imply conduct to the prejudice of good order and discipline. Furthermore, this
textual relationship of necessary implication provided appellant with fair notice.
The charge sets forth a violation of Article, 134, UCMJ, and the specification states
the date, location, and the victim to whom specific threats were made. See, e.g.,
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994) (holding a maltreatment

                                            2
PRICE—ARMY 20100382

specification provided notice because “it set[] forth the Article of the Code, name of
the victim, the time frame of the offense, and the comments alleged to have been
made by appellant”). See also MCM, 2002, Part IV, para. 60.c.(6)(a). Finally, these
very factual allegations combined with the record of trial sufficiently protect
appellant against double jeopardy.

                                   CONCLUSION
       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 COURT:




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




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