UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             JOHNSON, KRAUSS, and BURTON
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Private E2 PAYSON C. AVERILL
                          United States Army, Appellant

                                      ARMY 20090491

           Headquarters, United States Army Maneuver Center of Excellence
                             James L. Pohl, Military Judge
     Colonel Tracy A. Barnes, Staff Judge Advocate (pretrial and recommendation)
    Lieutenant Colonel Jeffery D. Lippert, Deputy Staff Judge Advocate (addendum)


For Appellant: Captain Kristin McGrory, JA; Frank J. Spinner, Esquire (on brief).

For Appellee: Major Amber J. Williams, JA; Captain Kenneth W. Borgnino, JA (on
brief).


                                         30 July 2012

                       -------------------------------------------------------
                          SUMMARY DISPOSITION ON REMAND
                       -------------------------------------------------------

Per Curiam:

      A panel of officers and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent act,
and adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 920, 934 (2006) [hereinafter UCMJ]. See Manual for Courts-Martial,
United States (2012 ed.), pt. IV, ¶ 62.b. The panel sentenced appellant to a bad-
conduct discharge, confinement for one year, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence. 


  Prior to taking action, the convening authority considered the addendum to the
staff judge advocate recommendation (SJAR). The SJAR addendum was signed by
Lieutenant Colonel Lippert as the “Deputy Staff Judge Advocate.” However, Article

                                                                                 (. . . continued)
AVERILL—ARMY 20090491

       On 7 December 2011, we issued a decision in this case, affirming the findings
of guilty and the sentence. On 10 July 2012, our superior court reversed our
decision as to Charge II and its Specification (adultery in violation of Article 134,
UCMJ) and as to the sentence and returned the record of trial to The Judge Advocate
General of the Army for remand to this court for further consideration in light of
United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). Consequently,
appellant’s case is again before this court for review under Article 66, UCMJ.

       In light of Humphries, we are compelled to disapprove the findings of guilt as
to the Article 134, UCMJ, offense previously affirmed. The specification does not
contain allegations of terminal elements under Article 134, UCMJ, and there is
nothing in the record to satisfactorily establish notice of the need to defend against a
terminal element as required under Humphries. Therefore, we now reverse
appellant’s conviction for adultery and dismiss the defective specification which
failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011).

       On consideration of the entire record, the finding of guilty of Charge II and
its Specification is set aside and that specification is dismissed. The remaining
findings of guilty 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 court affirms the sentence as approved by the convening
authority.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



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

(continued. . . )
60(d), UCMJ, requires a convening authority to obtain the written recommendation
of his staff judge advocate or legal officer, not the deputy staff judge advocate.
Consequently, it was plain error for the deputy staff judge advocate to sign the SJAR
addendum. United States v. Hudgins, 69 M.J. 630, 631 (Army Ct. Crim. App. 2010).
Regardless, we find no prejudice in this case. Appellant did not allege the error to
this court nor did he make “any colorable showing of possible prejudice.” United
States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998).




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