UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, GALLAGHER, and HAIGHT
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                 Chief Warrant Officer Two FRANK A. BAILEY
                        United States Army, Appellant

                                    ARMY 20100533

       Headquarters, United States Army Accessions Command and Fort Knox
                         Timothy Grammel, Military Judge
                  Colonel Robert J. Cotell, Staff Judge Advocate


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

For Appellee: Major Amber J. Roach, JA; Major LaJohnne A. White, JA; Captain
Steve T. Nam, JA (on brief).

                                   28 September 2012

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of attempted larceny (nine specifications), conspiracy to
commit larceny, dereliction of duty, false official statement, larceny (twenty-five
specifications), adultery, and fraternization in violation of Articles 80, 81, 92, 107,
121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 892, 907,
921, 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a
dismissal from the service, confinement for twenty-three months, and forfeiture of
all pay and allowances. The convening authority approved only so much of the
adjudged sentence as provides for a dismissal from the service, confinement for ten
months, and forfeiture of all pay and allowances.

      The convening authority approved appellant’s request for deferment of
automatic and adjudged forfeitures until action. At action, the convening authority
waived appellant’s automatic forfeitures for a six-month period, with direction that
they be paid to appellant’s spouse. However, the convening authority failed to
BAILEY — ARMY 20100533

disapprove the adjudged forfeitures, thus leaving no pay and allowances to waive for
the benefit of appellant’s spouse. Therefore, in order to effectuate the clear intent of
the convening authority and in the spirit of judicial economy, we set aside that
portion of the sentence that includes forfeiture of all pay and allowances.  

       This case is before this court for review under Article 66, UCMJ. Appellant
has raised the following assignment of error:

             WHETHER SPECIFICATIONS 1 AND 2 OF CHARGE VI
             FAIL TO STATE AN OFFENSE AS THEY DO NOT
             ALLEGE, EXPRESSLY OR BY NECESSARY
             IMPLICATION, THE “TERMINAL ELEMENT” AS
             REQUIRED BY UNITED STATES v. FOSLER, 70 M.J.
             225 (C.A.A.F. 2011).

                                    DISCUSSION

       We review a failure to allege the terminal elements of Article 134, UCMJ
under a plain error analysis. Under the plain error analysis, “[a]ppellant has the
burden of demonstrating that: (1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the accused.”
United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (citing United States v.
Powell, 49 M.J. 460, 463–65 (C.A.A.F. 1998)). Specifications 1 and 2 of Charge IV
are defective as they fail to allege the terminal elements of Article 134, UCMJ.
However, the error was not materially prejudicial to appellant’s substantial rights.
A properly conducted providence inquiry delineated each element and showed that
appellant understood the offenses and the theory of criminal liability. The
providence inquiry provided “notice of the offense of which [appellant] may be
convicted and all elements thereof before his plea [was] accepted, and moreover,
protect[ed] him against double jeopardy.” United States v. Nealy, 71 M.J. 73, 77
(C.A.A.F. 2012) (quoting United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F. 2012)).
Under the facts of this case, we are convinced that the record of trial demonstrates
appellant had sufficient notice of the terminal elements and the theory of criminality
pursued by the government. Appellant is protected against double jeopardy.

                                   CONCLUSION

       On consideration of the entire record, the findings of guilty are affirmed. The
court affirms only so much of the sentence as provides for a dismissal from the
service and confinement for ten months. All rights, privileges, and property of




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BAILEY — ARMY 20100533

which appellant has been deprived by virtue of that portion of his sentence set aside
by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

                                       FOR  THE COURT:
                                       FOR THE COURT: 



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




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