UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E1 CARL S. BEVERS
                          United States Army, Appellant

                                   ARMY 20100950

      Headquarters, Seventh U.S. Army Joint Multination Training Command
                          Jeffery Nance, Military Judge
           Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Kristin B. McGrory, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Stephen E. Latino, JA (on brief).


                                  29 November 2012

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

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant
contrary to his pleas of attempted wrongful appropriation, disrespect toward a
superior commissioned officer, failure to obey a general regulation, resisting
apprehension, larceny, five specifications of assault, two specifications of drunk and
disorderly conduct, and three specifications of communicating a threat, in violation
of Articles 80, 89, 92, 95, 121, 128, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 880, 889, 892, 895, 921, 928, 934 (2006) [hereinafter UCMJ],
respectively. The convening authority approved the adjudged sentence to a bad-
conduct discharge and four months’ confinement. 1

1
 At trial, the military judge ordered that appellant receive sixty-five days of
confinement credit. However, the convening authority’s action fails to reflect this

                                                                      (continued . . .)
BEVERS—ARMY 20100950

                       Failure to Plead the Terminal Elements

       The specifications alleging appellant communicated a threat were charged as
Article 134, UCMJ, offenses, but the specifications fail to allege the terminal
elements. Pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), it was
error to omit the terminal elements from these specifications. However, appellant
did not object to the form of the specifications at trial, and “where defects in a
specification are raised for the first time on appeal, dismissal of the affected charges
or specifications will depend on whether there is plain error—which, in most cases
will turn on the question of prejudice.” United States v. Humphries, 71 M.J. 209,
213–14 (C.A.A.F. 2012) (citing United States v. Cotton, 535 U.S. 625, 631–32
(2002)). Therefore, appellant must demonstrate “the Government’s error in failing
to plead the terminal element of Article 134, UCMJ, resulted in material prejudice to
[appellant’s] substantial, constitutional right to notice.” Id. at 215; UCMJ art. 59(a).
To assess prejudice, “we look to the record to determine whether notice of the
missing element is somewhere extant in the trial record, or whether the element is
‘essentially uncontroverted.’” Id. at 215–16 (citing Cotton, 535 U.S. at 633;
Johnson v. United States, 520 U.S. 461, 470 (1997)).

       Under the totality of the circumstances, we conclude that omission of the
terminal elements from the communicating-a-threat specifications materially
prejudiced appellant’s substantial right to notice. There is nothing in the record to
satisfactorily establish notice of the need to defend against a terminal element, and
the evidence was controverted as to at least one clause of Article 134, UCMJ.
Accordingly, we are compelled to disapprove the findings of guilt as to these Article
134, UCMJ, offenses. 2 However, 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). Furthermore, the penalty landscape has not
changed. The case was limited by the referral to a special court-martial empowered
to adjudge a bad-conduct discharge, and the threats made by appellant that formed


(. . . continued)
confinement credit. See Army Reg. 27-10, Legal Services: Military Justice, para. 5-
32.a. (3 Oct. 2011) (requiring a convening authority to “show in [the] initial action
all credits against a sentence to confinement . . . regardless of the source of the
credit”); United States v. Delvalle, 55 M.J. 648, 649 n.1, 656 (Army Ct. Crim. App.
2001). Even if this amounts to legal error, appellant has not alleged that he suffered
any prejudice as a result. Appellant will be credited with sixty-five days of
confinement credit against the sentence to confinement.
2
 The government correctly plead the terminal elements in the two other Article 134,
UCMJ, offenses, both of which state the offense of drunk and disorderly conduct.




                                           2
BEVERS—ARMY 20100950

the basis of the specifications at issue “would still have been correctly placed before
the military judge as a matter in aggravation” under Rule for Courts-Martial
[hereinafter R.C.M.] 1001(b)(4). United States v. Craig, 67 M.J. 742, 746 (N.M. Ct.
Crim. App. 2009). Therefore, in light of the remaining charges, we are confident the
court would have adjudged a sentence of at least a bad-conduct discharge and four
months’ confinement.

             Failure to Respond to Post-Trial Allegations of Legal Error

        A staff judge advocate (SJA) is required to respond, in the post-trial
recommendation to the convening authority (CA), to allegations of “legal error [ ]
raised in matters submitted under R.C.M. 1105.” R.C.M. 1106(d)(4). In this case,
appellant’s defense counsel raised the following issues pursuant to R.C.M. 1105: (1)
the military judge erred by not granting an R.C.M. 917 motion to dismiss the Article
92 offense; (2) the military judge erred by not granting an R.C.M. 917 motion to
dismiss the attempted larceny offense; 3 (3) the government “over-charged” the case;
and (4) the trial counsel’s sentencing argument should not have diminished
appellant’s deployed service. In his addendum to the post-trial recommendation, the
SJA responded to the first issue but failed to respond to the remaining issues. The
first two issues noted above are allegations of legal errors; therefore, the SJA erred,
at a minimum, by failing to respond to the second issue raised by appellant. We will
assume arguendo that the SJA also erred by failing to respond to the remaining
issues. 4

       Ordinarily, “failure by the [SJA] to respond to an allegation of legal error . . .
requires remand to the [CA] for comment by the [SJA].” United States v. Hill, 27
M.J. 293, 297 (C.M.A. 1988). However, we are “free to affirm when a defense
allegation of legal error would not foreseeably have led to a favorable
recommendation by the [SJA] or to corrective action by the [CA].” Id.; United States
v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996). Based on the record before us, we find
any legal errors raised by these allegations lack merit and would not have resulted in
a favorable recommendation by the SJA or any corrective action by the CA.

3
  Appellant was convicted of the lesser included offense of attempted wrongful
appropriation.
4
  If it is unclear whether an issue raised in an accused’s post-trial submission
alleges a “legal error,” then a prudent course of action for SJAs is to respond as if
the issue raises a legal error. “The response may consist of a statement of agreement
or disagreement with the matter raised by the accused. An analysis or rationale for
the [SJA]’s statement, if any, concerning legal error is not required.” R.C.M.
1106(d)(4).




                                            3
BEVERS—ARMY 20100950


                                   CONCLUSION

       On consideration of the entire record, and in light of Humphries, the findings
of guilty of Specifications 3, 4 (as redesignated), and 5 (as redesignated) of
Additional Charge V (as redesignated) are set aside and dismissed. The remaining
findings are AFFIRMED. 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 approved sentence is AFFIRMED.


                                        FOR THE COURT:



                                        JOANNE P. TETREAULT ELDRIDGE
                                        Deputy Clerk of Court
                                        JOANNE P. TETREAULT EL




                                          4
