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

                            UNITED STATES, Appellee
                                        v.
                       Specialist ANTHONY R. ELLINGTON
                          United States Army, Appellant

                                       ARMY 20100667

                            Headquarters, Fort Stewart
              Tara A. Osborn and Tiernan P. Dolan, Military Judges
         Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (trial)
Colonel Randall J. Bagwell, Staff Judge Advocate (new recommendation and action)


For Appellant: Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                       31 January 2012

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                    SUMMARY DISPOSITION ON FURTHER REVIEW
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ALDYKIEWICZ, Judge:

       On 14 August 2010, a military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of assault consummated by a battery (two
specifications), aggravated assault, and child endangerment in violation of Articles
128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934
[hereinafter UCMJ]. On 29 October 2010, the convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for thirty-two months,
forfeiture of all pay and allowances, and reduction to Private E1.

       On 30 June 2011, this court set aside the convening authority’s action,
returning the record of trial to The Judge Advocate General for remand to the same
convening authority for a new staff judge advocate recommendation and action. 1

1
  The case was returned because twelve days after trial, the appellant, a Soldier with
a dependent daughter, submitted a timely request to defer adjudged forfeitures and
defer and waive automatic forfeitures in his case, a request that was never acted on
by the convening authority.
ELLINGTON – ARMY 20100667

United States v. Ellington, ARMY 20100667 (Army Ct. Crim. App. 30 June
2011)(unpub.).

       On 18 October 2011, the convening authority again acted in appellant’s case,
this time approving only the bad-conduct discharge, confinement for thirty-two
months, and reduction to Private E1. The convening authority granted a six-month
waiver of the automatic forfeitures, directing payment of the funds “to the mother of
the [appellant’s] child, in support of the [appellant’s] [f]amily [m]ember.” 2

        A review of the record reveals one issue that merits discussion but no relief;
that is, the failure of the child endangerment specification, a violation of Article
134, UCMJ to allege the terminal element for a clause 1 or clause 2 violation. 3

                                     Fosler Issue

       Whether a charge and specification states an offense is a question of law that
is reviewed de novo. United States v. Roberts, 70 M.J. 550, 552 (Army Ct. Crim.
App. 2011) (citing United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006)).

      As noted by our superior court:

      The military is a notice pleading jurisdiction. United States v. Sell, 3
      C.M.A. 202, 206, 11 C.M.R. 202, 206 (1953). A charge and
      specification will be found sufficient if they, “first, contain[ ] the
      elements of the offense charged and fairly inform[ ] a defendant of the
      charge against which he must defend, and, second, enable[ ] him to
      plead an acquittal or conviction in bar of future prosecutions for the
      same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct.
      2887, 41 L.Ed.2d 590 (1974); see also United States v. Resendiz–
      Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007)
      (citations and quotation marks omitted); United States v. Sutton, 68
2
 The Court notes that both the report of result of trial and promulgating order have
errors requiring correction. The former incorrectly describes Charge IV and its
specification; the latter, General Court-Martial Order Number 18, dated 18 October
2011, is incomplete and fails to comply with Appendix 17 of the MCM, 2008, noting
only the convening authority’s action and omitting information such as the time and
place of arraignment, the offenses for which the appellant was arraigned, the pleas
and findings, the adjudged sentence, and the requirement for DNA processing IAW
10 U.S.C. § 1565.
3
  The terminal element for a clause 1 and clause 2, Article 134, UCMJ violation is
that the alleged conduct was “to the prejudice of good order and discipline” or
“conduct of a nature to bring discredit upon the armed forces” respectively. See
Manual for Courts-Martial, United States, (2005 ed.) [hereinafter MCM, 2005], Part
IV, para. 60.c.


                                           2
ELLINGTON – ARMY 20100667

      M.J. 455, 455 (C.A.A.F. 2010); United States v. Crafter, 64 M.J. 209,
      211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R. at 206. The
      rules governing court-martial procedure encompass the notice
      requirement: “A specification is sufficient if it alleges every element of
      the charged offense expressly or by necessary implication.” R.C.M.
      307(c)(3).

Fosler, 70 M.J. at 229 (holding an adultery charge failed to state an offense where it
neither expressly nor impliedly alleged the terminal elements for a clause 1 or clause
2 Article 134, UCMJ offense, appellant objected at trial to the pleading, and
appellant contested the charge and specification at issue). See also, Roberts, 70 M.J.
at 553; United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994).

       Charges and specifications first challenged on appeal, even where an
appellant pleaded not guilty, are liberally construed. Roberts, 70 M.J. at 553 (citing
United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986)); see also, United
States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); United States v. Berner, 32 M.J. 570,
572 (A.C.M.R. 1991). Additionally, an appellant’s “standing” to challenge the
pleading following a knowing and voluntary guilty plea thereto is diminished.
Roberts, 70 M.J. at 553. Absent an objection at trial, we will not set aside a
specification unless it is “‘so obviously defective that by no reasonable construction
can it be said to charge the offense for which conviction was had.’” Id (citing
United States v. Watkins, 21 M.J. 208, 209-210) (quoting United States v. Thompson,
356 F.2d 216, 226 (2d Cir.1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16
L.Ed.2d 675 (1966)) (internal quotation marks omitted).

       Unlike Fosler, the procedural posture and facts of appellant’s case are notably
different, resulting in a different outcome. The pleading itself alleged a violation of
Article 134, UCMJ “Child endangerment,” a title that necessarily implies service
discrediting behavior. The text of the specification stated, in part, that appellant
“did endanger the mental health of [KW], by assaulting Ms. [AP], the mother of
[KW], while [KW] was in [the] home and able to hear such acts take place.” The
appellant did not object to the pleading. 4 The action taken by appellant and made
criminal by Article 134 was the endangerment of a two-year old child’s mental
health, through culpable negligence, as he physically assaulted the child’s mother
within the hearing of the child. The stipulation of fact, dated 19 July 2010, almost
one month before trial and signed by appellant and counsel noted: appellant
assaulted the child’s mother within hearing of the child; the child awoke during the
assault and heard the “noise from the assault and the pleas of her mother;” appellant
knew or should have known that his actions endangered the mental health of the
child; appellant had a duty of care towards the child; and appellant’s actions “would
lower the reputation and public esteem towards the military and would also cause a
4
 Appellant did not object to the pleading at trial, during the post-trial processing of
his case, or on appeal before this court.

                                           3
ELLINGTON – ARMY 20100667

good order and discipline issue.” Additionally, the colloquy between the military
judge and appellant during the providence inquiry addressed how his actions were
both prejudicial to good order and discipline and service discrediting, elements
clearly defined by the military judge and understood by appellant.

        The pleading was sufficient to place the appellant on notice of the offense
charged and the specification as written, and pleaded to, necessarily implies conduct
that, at a minimum, is service discrediting, the terminal element for a “clause 2”
Article 134, UCMJ offense. 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); see also, United States v. Berner,
32 M.J. 570 (A.C.M.R. 1991); United States v. Watkins, 21 M.J. 208 (C.M.A. 1986).
Finally, the pleading and the record of trial sufficiently protect the appellant from a
double jeopardy perspective.

                                     Conclusion

      On consideration of the entire record, 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.

      Senior Judge KERN and Judge YOB concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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