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

                            UNITED STATES, Appellee
                                         v.
                    Sergeant First Class EDGAR E. MARTINEZ
                          United States Army, Appellant

                                      ARMY 20090582

                     Headquarters, Combined/Joint Task Force 82
                            Robert Rigsby, Military Judge
              Lieutenant Colonel R. Patrick Huston, Staff Judge Advocate


For Appellant: Michael D.J. Eisenberg, Esquire (argued); Captain E. Patrick
Gilman, JA; Michael D.J. Eisenberg, Esquire (on brief).

For Appellee: Captain John D. Riesenberg, JA (argued); Colonel Michael E.
Mulligan, JA; Major Amber J. Williams, JA; Major Adam S. Kazin, JA (on brief).


                                       25 October 2012
                         ---------------------------------------------------
                          SUMMARY DISPOSITION ON REMAND
                         ---------------------------------------------------
Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of false official statement and graft, in violation of Articles
107 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 907, 934
[hereinafter UCMJ]. The military judge also convicted appellant, contrary to his
pleas, of soliciting another to commit an offense, in violation of Article 134 of the
UCMJ. The military judge sentenced appellant to a bad-conduct discharge and to be
confined for eighteen months. The convening authority approved the adjudged
sentence.

       On 7 June 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. United States v. Martinez, ARMY 20090582
(Army Ct. Crim. App. 7 June 2011). On 23 September 2011, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). United States v. Martinez, 70 M.J. 360
(C.A.A.F. 2011). On 21 December 2011, we issued a decision in this case,
MARTINEZ—ARMY 20090582

affirming the findings of guilty and the sentence. United States v. Martinez, ARMY
20090582 (Army Ct. Crim. App. 21 Dec. 2011). On 10 July 2012, our superior court
reversed our decision as to Specification 2 of Charge III, soliciting another to
commit an offense, in violation of Article 134, UCMJ, and as to the sentence;
affirmed our decision as to the other specifications and charges; 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). United States v. Martinez, 71 M.J. 347 (C.A.A.F. 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.

                                    DISCUSSION

       The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1)
the accused engaged in certain conduct, and (2) that the conduct was prejudicial to
good order and discipline or service discrediting. See Manual for Courts-Martial,
United States, (2008 ed.), pt. IV, ¶ 66.b(1)(e).

       “The Government must allege every element expressly or by necessary
implication, including the terminal element.” Fosler, 70 M.J. at 232. In light of
Humphries, even if this specification does not allege the terminal elements by
necessary implication, the question remains whether the defect resulted in material
prejudice to appellant’s substantial right to notice. This question is answered by a
close review of the record to determine if “notice of the missing element is
somewhere extant in the trial record, or whether the element is ‘essentially
uncontroverted.’” Humphries, 71 M.J. at 215-216 (citing United States v. Cotton,
535 U.S. 625, 633 (2002)).

        The government called Special Agent (SA) Geniuk as its first witness during
its case-in-chief to help prove appellant was guilty of soliciting another to commit
graft, in violation of Article 134, UCMJ. During his direct examination, he
described how appellant solicited Sergeant First Class (SFC) TM to commit graft.
During this examination, Trial Counsel asked SA Geniuk, “do you think that what
[appellant] did and what he described was prejudicial to good order and discipline?”
The witness answered in the affirmative and followed-up with a brief explanation.

      In short, contrary to Humphries, in this case, it is clear from the record that
appellant was reasonably placed on notice that the Government was pursuing a
conviction under the theory that appellant’s conduct was prejudicial to good order




                                           2
MARTINEZ—ARMY 20090582

and discipline. * Appellant was on notice and was not surprised that the government
was required to prove his conduct was prejudicial to good order and discipline.
Accordingly, any defect in the specification did not result in material prejudice to
appellant’s substantial right to notice.

                                 CONCLUSION

      On consideration of the entire record and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), 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.


                                        FOR THE
                                       FOR  THE COURT:
                                                COURT:




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




*
 Although not necessary to our disposition of this case, we note that the terminal
element was “essentially uncontroverted” in this case.




                                          3
