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

                          UNITED STATES, Appellee
                                       v.
                        Specialist TYLER A. MCINTOSH
                         United States Army, Appellant

                                  ARMY 20120780

   Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell (trial)
                       Headquarters, Fort Campbell (action)
           Timothy Grammel and Steven E. Walburn, Military Judges
                 Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain A. Jason Nef, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Major Matthew T. Grady, JA (on brief).


                                     29 May 2014

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of knowingly and wrongfully distributing
child pornography and two specifications of knowingly and wrongfully possessing
child pornography, in violation of Article 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 934 (2006). The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for two years, forfeiture
of all pay and allowances, and reduction to the grade of E-1.

      This case is before us for review pursuant to Article 66, UCMJ. One of
appellant’s personal submissions raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) has merit. Appellant alleges, and we agree, that the
government failed to prove that any of the offenses were prejudicial to good order
MCINTOSH—ARMY 20120780

and discipline. Appellant’s other assignments of error and Grostefon claims are
without merit.

       The government charged appellant with four violations of Article 134, UCMJ,
alleging that appellant violated both Clause 1 and Clause 2 in all four specifications.
See Manual for Courts-Martial, United States (2008 ed.), Part IV, ¶ 60.c.(1), (2),
(3). As our superior court recently reiterated, “[t]he . . . clauses of Article 134
constitute ‘. . . distinct and separate parts.’” United States v. Fosler, 70 M.J. 225,
230 (C.A.A.F. 2011) (quoting United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7
C.M.R. 37, 39 (1953)). It follows then that “[v]iolation of one clause does not
necessarily lead to a violation of the other . . . .” Id. More specifically to the case
before us, the court in Fosler went on to state that “disorders and neglects to the
prejudice of good order and discipline” are not synonymous with “conduct of a
nature to bring discredit upon the armed forces . . . .” Id.

       Here, the government admitted no evidence tending to prove that appellant’s
conduct was prejudicial to good order and discipline. Therefore, on the record
before us, we conclude that the evidence is legally and factually insufficient to
sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134,
UCMJ.

                                   CONCLUSION

       On consideration of the entire record, as well as those matters personally
raised by appellant pursuant to Grostefon, the court affirms only so much of the
finding of guilty of Specification 1 of The Charge as finds that appellant:

             did, on or about 7 June 2010, at or near Fort Campbell,
             Kentucky, knowingly and wrongfully distribute
             approximately 16 images of child pornography as defined
             in 18 U.S.C. §2256(8), which conduct was of a nature to
             bring discredit upon the armed forces.

The court affirms only so much of the finding of guilty of Specification 2 of The
Charge as finds that appellant:

             did, on or about 2 July 2010, at or near Fort Campbell,
             Kentucky, knowingly and wrongfully distribute
             approximately 17 images of child pornography as defined
             in 18 U.S.C. §2256(8), which conduct was of a nature to
             bring discredit upon the armed forces.

The court affirms only so much of the finding of guilty of Specification 3 of The
Charge as finds that appellant:



                                           2
MCINTOSH—ARMY 20120780


             did, on or about 10 August 2010, at or near Fort Campbell,
             Kentucky, knowingly and wrongfully possess
             approximately six images of child pornography as defined
             in 18 U.S.C. §2256(8), which conduct was of a nature to
             bring discredit upon the armed forces.

The court affirms only so much of the finding of guilty of the Specification of The
Additional Charge as finds that appellant:

             did, on or about 10 August 2010, at or near Fort Campbell,
             Kentucky, knowingly and wrongfully possess two videos
             containing child pornography as defined in 18 U.S.C.
             §2256(8), which conduct was of a nature to bring discredit
             upon the armed forces.

The findings of guilty of The Charge and The Additional Charge are AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2014) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986), the sentence as approved by the convening authority 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.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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