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 (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).

                                        30 July 2012
                       ----------------------------------------------------
                        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, assault consummated by a battery, 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 (2006) [hereinafter UCMJ]. * The military judge
also convicted appellant, 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 (2012 ed.), pt. IV, ¶ 110.b. The military judge
sentenced appellant 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
aggravated assault 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). On 28 October 2011, we issued a decision in
this case where we, again, affirmed the findings and the sentence. On 10 July 2012,
our superior court reversed our decision as to Charge VI, Specification 2
(communicating a threat in violation of Article 134, UCMJ) and as to the sentence
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). Consequently, appellant’s case is again before this
court for review under Article 66, UCMJ.

       In light of Humphries, we are compelled to disapprove the findings of guilt as
to the Article 134 offense previously affirmed. That specification did not contain an
allegation of terminal elements under Article 134 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
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, we disapprove the finding of guilty as
to Charge VI, Specification 2, and affirm the remaining findings of guilty. Charge
VI, Specification 2, is set aside and dismissed. 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 the sentence as approved by the
convening authority.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



                                        JOANNE P. TETREAULT ELDRIDGE
                                        Deputy ClerkP.
                                        JOANNE       of TETREAULT
                                                        Court     ELDR




                                          2
