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

                            UNITED STATES, Appellee
                                         v.
                          Captain ROBERT A. WARREN
                          United States Army, Appellant

                                  ARMY 20100914

                    Special Operations Command Central
                      Michael J. Hargis, Military Judge
             Commander Todd C. Huntley, USN, Staff Judge Advocate


For Appellant: Captain Brandon H. Iriye, JA; Mr. Donald G. Rehkopf, Jr., Esquire
(on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Edward J. Whitford, JA (on brief).


                                  29 August 2013

                              SUMMARY DISPOSITION


KERN, Senior Judge:

        A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of violating a general order, wrongfully possessing a
controlled substance, rape, conduct unbecoming an officer, adultery, and obstruction
of justice, in violation of Articles 92, l 12a, 120, 133, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 912a, 920, 933, 934 (2006) [hereinafter UCMJ].
The panel sentenced appellant to a dismissal, confinement for eight years, and to
forfeit all pay and allowances. The convening authority approved only so much of
the sentence as provided for a dismissal and confinement for seven years and eight
months.
WARREN-ARMY 20100914

       The case is now before this court for review under Article 66, UCMJ.
Appellant alleges eight assignments of error', only one of which merits discussion
and relief. In consideration of our superior court's decision in United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside the findings
of guilty to specifications I and 2 of Charge V, the adultery and obstruction of
justice specifications charged under Article 134, UCMJ.

        The specifications do not allege the Article 134, UCMJ, terminal element of
conduct that is prejudicial to good order and discipline (Clause 1) or of a nature to
bring discredit upon the armed forces (Clause 2). "Where, as here, a specification
neither expressly alleges nor necessarily implies the terminal element, the
specification is defective." United States v. Gaskins, 72 M.J. 225, 232 (C.A.A.F.
2013) (citing United States v. Fosler, 70 M.J. 225, 229-30 (C.A.A.F. 2011 )).
However, appellant did not object to the form of the specification 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." Humphries, 71 M.J. 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)).

       After thoroughly reviewing the record, we do not find any indication that
appellant was on notice of the missing terminal element for either specification. The
government never proffered its theory of criminality with respect to the terminal
element, and did not "put on any direct evidence of the terminal element." Gaskins,
72 M.J. at 233-34. See also United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013)
(finding the appellant was not prejudiced by the government's failure to plead the
terminal element because it proffered its theory of criminality, presented direct
evidence on the terminal element, and appellant put on a vigorous defense). Based
on a totality of the circumstances in this case, we are not convinced appellant was
placed on sufficient notice of the government's theory as to which clause(s) of
Article 134, UCMJ, he violated. As a result, appellant's substantial right to notice
was materially prejudiced by the government's failure to allege the terminal


 By separate order, we direct the briefs of both appellant and appellee be sealed as
both discuss evidence which was sealed by the military judge.




                                           2.
WARREN-ARMY 201 00914

element. See UCMJ art. 59(a). Accordingly, on consideration of the entire record
and in light of Humphries, the findings of guilty to Specifications 1 and 2 of Charge
V and Charge V are set aside.

                            Reassessment of the Sentence

        We must now consider and determine whether we can appropriately reassess
the sentence with the dismissal of Specifications 1 and 2 of Charge V and Charge V.
If this court "can determine that, absent the error, the sentence would have been at
least of a certain magnitude, then [we] may cure the error by reassessing the
sentence instead of ordering a sentencing rehearing." United States v. Doss, 57 M.J.
 182, 185 (C.A.A.F. 2002) (citing United States v. Sales, 22 M.J. 305, 308 (C.M.A.
 1986)). A "dramatic change in the 'penalty landscape"' lessens our ability to
reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003).
Ultimately, a sentence can be reassessed only if we "confidently can discern the
extent of the error's effect on the sentencing authority's decision." United States v.
Reed, 33 M.J. 98, 99 (C.M.A. 1991). Because the error in this case is of a
constitutional magnitude, we "must be satisfied beyond a reasonable doubt that ...
reassessment [can cure] the error." Doss, 57 M.J. at 185 (citing Sales, 22 M.J. at
307). Additionally, we must determine that a sentence we propose to affirm is
"appropriate," as required by Article 66(c), UCMJ. In short, a reassessed sentence
must be purged of prejudicial error and also must be appropriate for the offense and
the offender involved. Sales, 22 M.J. at 307-08.

       In this case, the sentencing landscape does not change with the dismissal of
Specifications 1 and 2 of Charge V and Charge V. The maximum punishment
remains the same, including confinement for life without parole. Viewing the
remaining convictions in light of this context, we are convinced that we can reassess
the sentence from appellant's trial. We have considered the entire record and the
principles of Sales and United States v. Mojfeit, 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identified by Judge Baker in his concurring opinion in Moffeit.
Among other matters, we took into account appellant's length of service, his family,
and his service .record. We also considered the serious nature of appellant's
remaining convictions, to include the gravamen offense of rape. In addition, we also
considered appellant's record of prior misconduct. In light of the foregoing, we are
confident beyond a reasonable doubt that appellant would have received a sentence
on the remaining convictions of no less than a dismissal and confinement for seven
years and eight months. We find such a sentence is correct in law and fact and,
based on the entire record, should be approved.

                                   CONCLUSION

      Specifications 1 and 2 of Charge V and Charge V are set aside. The
remaining findings of guilty are AFFIRMED. After reassessing the sentence on the



                                           3
WARREN-ARMY 20100914

basis of the error noted above, the submissions of the parties, and the entire record,
the approved sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored. See UCMJ art. 75(a).

      Judge ALDYKIEWICZ and Judge HAIGHT concur.


                                        FOR THE COURT:




                                                   H. SQUIRES JR.
                                        Cler of Court




                                           4
