UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                               SIMS, COOK, and MAGGS
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist MAC D. WARNER
                          United States Army, Appellant

                                   ARMY 20100398

                              Headquarters, V Corps
                         Wendy P. Daknis, Military Judge
             Colonel Flora D. Darpino, Staff Judge Advocate (pretrial)
  Lieutenant Colonel Matthew M. Miller, Acting Staff Judge Advocate (post-trial)


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

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).


                                      24 May 2012

                               --------------------------------
                               SUMMARY DISPOSITON
                               --------------------------------

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of one specification of aggravated sexual contact with a child,
and two specifications of indecent language, in violation of Articles 120 and 134 of
the Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2008) [hereinafter
UCMJ]. Appellant was sentenced to a dishonorable discharge, confinement for
eighteen months, total forfeiture of all pay and allowances, and reduction in rank to
E-1. The convening authority (CA) approved the adjudged sentence. The CA
deferred forfeitures effective 25 May 2010 until action on 22 Oct 2010. This case is
before this court for review pursuant to Article 66, UCMJ.
WARNER – ARMY 20100398

                                   DISCUSSION

        Specifications 4 and 7 of Charge II concern appellants communication of
indecent language. Appellants sole assignment of error on appeal is that these
specifications failed to state an offense under Article 134, UCMJ, because they did
not allege expressly that appellant’s conduct was prejudicial to good order and
discipline or of a nature to bring discredit upon the Armed Forces. Trial defense
counsel did not raise this objection to the specifications in pretrial proceedings, at
trial, or in the post-trial Rule for Courts-Martial [hereinafter R.C.M.] 1105
submission. Although defense counsel did challenge specification 7 of Charge II in
a pretrial motion, the ground for the challenge was only that the language used was
not indecent. See Pretrial Motion to Dismiss (Failure to State a Claim), Appellate
Exhibit XIII, at 3. Defense counsel did not challenge specification 4 of Charge II on
any grounds. We have reviewed this assignment of error in light of United States v.
Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011); United States v. Fox, 34 M.J. 99 (C.M.A. 1986); United States v. Watkins, 21
M.J. 208 (C.M.A. 1986); and United States v. Berner, 32 M.J. 570 (A.C.M.R. 1991).
Although the specifications were defectively stated, we find no prejudice because
appellant had notice and demonstrated actual knowledge that the government was
required to prove one or both of the alternative terminal elements of Article 134,
UCMJ. Trial defense counsel specifically identified the alternative terminal
elements in the pretrial motion cited above and in a motion for a finding of not
guilty at the close of the government’s case. Trial defense counsel also asserted that
the government had failed to prove the element in closing argument. We therefore
conclude that no relief is warranted.

                                   CONCLUSION

      We have considered appellant’s assignment of error, and those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), in our review of the record and find them to be without merit. The
findings of guilty and the sentence are AFFIRMED.


                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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




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