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

                           UNITED STATES, Appellee
                                        v.
                            Private JAMES R. CAIN
                          United States Army, Appellant

                                   ARMY 20100936

                             Headquarters, Fort Bliss
                        David H. Robertson, Military Judge
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA (on brief).


                                    31 October 2012

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

Per Curiam:

       A panel of officer members, sitting as a special court-martial, convicted
appellant in absentia, of three specifications of failing to go to his appointed place
of duty, one specification of being absent without leave, and one specification of
breaking restriction, in violation of Articles 86 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 886, 934 (2006) [hereinafter UCMJ]. The panel sentenced the
appellant to a bad-conduct discharge, six months’ confinement, and forfeiture of
$964.00 pay per month for six months. The convening authority disapproved
Specification 2 of Charge I, 1 and approved only so much of the sentence as provided

1
 At the conclusion of the government’s case-in-chief, the trial counsel noted that the
evidence established that appellant was ordered to be at his place of duty at a time
different than that charged in Specification 2 of Charge I. Consequently, the

                                                                       (continued . . .)
CAIN—ARMY 20100936

for a bad-conduct discharge, five months’ confinement, and forfeiture of $964.00
pay per month for five months. 2

        Appellant’s breaking restriction was charged as an Article 134, UCMJ,
offense, and the specification fails to allege the terminal elements. Pursuant to
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), it was error to omit the
terminal elements from this specification. However, appellant did not object to the
form of this specification at trial, and “where defects in a specification are raised for
the first time on appeal, dismissal of the affected charges or specifications will
depend on whether there is plain error—which, in most cases will turn on the
question of prejudice.” Humphries, 71 M.J. at 213–14 (citing United States v.
Cotton, 535 U.S. 625, 631–32 (2002)). Therefore, appellant must demonstrate “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.” Humphries, 71 M.J. at 215; UCMJ art. 59(a). 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.’”
Id. at 215–16 (citing Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S.
461, 470 (1997)).

      Under the totality of the circumstances, we conclude that omission of the
terminal elements from the breaking restriction specification materially prejudiced
appellant’s substantial right to notice. There is nothing in the record to

(. . . continued)
military judge instructed the panel about making findings by exceptions and
substitutions; however, the panel found appellant guilty as charged. In a post-trial
Article 39(a), UCMJ, session, the military judge concluded that the evidence was
legally insufficient to support a finding of guilty as to Specification 2 of Charge I,
recommended that the convening authority dismiss that specification, and
recommended that the convening authority reduce appellant’s sentence to
confinement.
2
  Where a convening authority disapproves a finding to cure a legal error, then his
action on the sentence “must be guided by the same [sentence reassessment] rules
applicable to appellate authorities,” and the staff judge advocate (SJA) is required to
provide proper legal guidance to the convening authority about sentence
reassessment. United States v. Reed, 33 M.J. 98, 99–100 (C.M.A. 1991). In this
case, the SJA erred by failing to provide proper legal guidance in light of the
disapproved findings of guilt. However, under the facts of this case, we conclude
that a properly prepared recommendation “would have [had] no effect on the
convening authority’s action,” id. at 100 (quoting United States v. Hill, 27 M.J. 293,
296 (C.M.A. 1988)), and therefore appellant was not prejudiced by the SJA’s error.




                                            2
CAIN—ARMY 20100936

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.
Accordingly, we are compelled to disapprove the finding of guilt as to the Article
134, UCMJ, offense.

       We next analyze the case to determine whether we can reassess the sentence.
In order to reassess, we must be 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 has not changed,
as the case was limited by the referral to a special court-martial empowered to
adjudge a bad conduct discharge. Therefore, in light of the remaining charges, we
are confident the court would have adjudged a sentence of at least a bad-conduct
discharge, five months’ confinement, and forfeiture of $964.00 pay per month for
five months.

                                   CONCLUSION

       On consideration of the entire record, and in light of Humphries, the findings
of guilty of the Specification of Charge II and Charge II are set aside and dismissed.
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
approved sentence.


                                        FOR THE COURT:




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




                                           3
