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

                            UNITED STATES, Appellee
                                         v.
                         Staff Sergeant AARON P. STONE
                          United States Army, Appellant

                                      ARMY 20090332

                  Joint Readiness Training Center and Fort Polk
                         Charles D. Hayes, Military Judge
       Lieutenant Colonel Paula I. Schasberger, Acting Staff Judge Advocate


For Appellant: Major Laura R. Kesler, JA; Captain A. Jason Nef, JA.

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


                                      11 February 2013
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                         SUMMARY DISPOSITION ON REMAND
                         --------------------------------------------------

Per Curiam:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of three specifications of willfully
disobeying a superior commissioned officer, one specification of dereliction of duty,
four specifications of maltreatment, eleven specifications of assault, and two
specifications of obstructing justice, in violation of Articles 90, 92, 93, 128 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 893, 928, 934 (2006)
[hereinafter UCMJ]. The panel sentenced appellant to be reduced to the grade of
Private E1, to forfeit all pay and allowances, and a bad-conduct discharge. The
convening authority reduced forfeitures to $933.00 pay per month for twelve months
and approved the remainder of the adjudged sentence.

       On 5 April 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 21 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. Stone, 70 M.J. 356 (C.A.A.F.
21 Sep. 2011) (summ. disp.). On 28 December 2011, after a review pursuant to
STONE—ARMY 20090332

Fosler, we again issued a decision in this case, affirming the findings of guilty and
the sentence. United States v. Stone, ARMY 20090332, 2011 WL 6965849 (Army
Ct. Crim. App. 28 Dec. 2011) (summ. disp.).

        On 10 July 2012, our superior court reversed the portion of our decision as to
Charge V (redesignated), Specifications 1 and 2, and as to the sentence, and
affirmed our decision as to the remaining charges and specifications. United States
v. Stone, 71 M.J. 350 (C.A.A.F. 10 July 2012) (summ. disp.). The court returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further reconsideration in light of United States v. Humphries, 71 M.J. 209
(C.A.A.F. 2012). Id. at 351. Consequently, appellant’s case is before this court for a
third time.

       In this case, appellant pleaded not guilty to two specifications of obstructing
justice in violation of Article 134, UCMJ, and neither of those specifications
expressly alleged that appellant’s conduct was to the prejudice of good order and
discipline or service discrediting. Pursuant to United States v. Fosler, 70 M.J. 225
(C.A.A.F. 2011), United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), and United
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), it was error to omit the terminal
elements from these specifications.

       Under the totality of the circumstances in this case, we conclude that the
omission of the terminal elements from these specifications materially prejudiced
appellant’s substantial right to notice. UCMJ art. 59(a); Humphries, 71 M.J. at 215
(requiring a showing that “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”). There is nothing in the record to
satisfactorily establish notice of the need to defend against a terminal element and
the evidence was controverted as to at least one clause of Article 134, UCMJ. See
Humphries, 71 M.J. at 215–16 (holding that 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’” (citing
United States v. Cotton, 535 U.S. 625, 633 (2002); Johnson v. United States, 520
U.S. 461, 470 (1997))). Accordingly, we are compelled to disapprove the findings
of guilty as to the Article 134, UCMJ, offenses previously affirmed.

       However, we are confident “that, absent any error, the sentence adjudged
would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986). In this case, the penalty landscape is minimally changed, as
appellant remains convicted of the most serious offenses, to include eleven
specifications of assault. Therefore, in light of the remaining charges, we are
confident a court would adjudge a sentence to at least a bad-conduct discharge,
forfeiture of $933.00 pay per month for twelve months, and reduction to the grade
of E-1.



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STONE—ARMY 20090332

                                  CONCLUSION

       On consideration of the entire record, and in light of Humphries, the findings
of guilty of Specifications 1 and 2 of Charge V (redesignated) are set aside and those
specifications are dismissed without prejudice. Reassessing the sentence on the
basis of the error noted, the entire record, and in accordance with the principles of
Sales 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 approved
sentence is AFFIRMED.


                                       FOR THE COURT:




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




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