UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Sergeant First Class JOHN P. KEY
                          United States Army, Appellant

                                    ARMY 20170030

                        Headquarters, 25th Infantry Division
                         Mark A. Bridges, Military Judge
                    Colonel Ian R. Iverson, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Captain Heather M. Martin, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA
(on brief).


                                     23 March 2018

                               ----------------------------------
                                SUMMARY DISPOSITION
                               ----------------------------------

FLEMING, Judge:

       In this case, we hold the evidence presented at trial was insufficient to support
a finding that appellant’s conduct, as alleged in Specification 2 of Charge V, was
prejudicial to good order and discipline in the armed forces.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of aggravated assault, three specifications of assault
consummated by battery, and two specifications of communicating a threat in
violation of Articles 128 and 134, Uniform Code of Military Justice [UCMJ], 10
U.S.C. §§ 928, 934 (2012). The military judge sentenced appellant to a bad-conduct
discharge, confinement for fourteen months, and reduction to the grade of E-1. The
convening authority, pursuant to the pretrial agreement, approved only so much of
the adjudged sentence as provided for a bad-conduct discharge, confinement for
twelve months, and reduction to E-1.
KEY—ARMY 20170030

       The case is before this court for review under Article 66, UCMJ. Appellant
raises one error: sufficient evidence was not admitted to find appellant’s conduct
was “to the prejudice of good order and discipline in the armed forces,” as charged
in Specifications 1 and 2 of Charge V. Appellant asks that the language be
dismissed from these specifications. As to Specification 2 of Charge V, the
government concedes the lack of proof and concurs with appellant’s request to
dismiss the language from each specification. Appellant personally raises additional
issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which we
find meritless.

       Appellant was charged with two specifications of communicating a threat in
violation of Article 134, UCMJ, each containing the terminal element, “such conduct
being to the prejudice of good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces.” Appellant pleaded guilty to these
specifications.

       During a Rule for Courts-Martial (R.C.M.) 802 conference, the parties and
military judge agreed appellant would plead guilty to only the service discrediting
prong of Specification 2 of Charge V. Thus, when the military judge found
appellant guilty of Specification 2 of Charge V without excepting the language “to
the prejudice of good order and discipline in the armed forces and,” he erred.

       Regarding Specification 1 of Charge V, appellant conceded his conduct was
prejudicial to good order and discipline because the victim was in the military
herself and his threats impacted her work and caused her to be a less effective
soldier. Thus, the military judge did not err in accepting appellant’s plea to this
specification and charge.

                                    CONCLUSION

      The finding of guilty to Specification 2 of Charge V is AFFIRMED excepting
the words “to the prejudice of good order and discipline in the armed forces and.”
The excepted words are SET ASIDE and DISMISSED. The remaining findings are
AFFIRMED.

        We are able to reassess the sentence on the basis of the error noted, the entire
record, and in accordance with the principals of United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013). Based on the entire record and appellant’s course
of conduct, we are confident that the military judge would have imposed a sentence
of at least that which was adjudged, and accordingly we AFFIRM the sentence.




                                           2
KEY—ARMY 20170030

    Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                              FOR
                              FOR THE
                                  THE COURT:
                                      COURT:



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




                                 3
