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

                           UNITED STATES, Appellee
                                        v.
                  Sergeant First Class ARTHUR R. YOUNG, JR.
                         United States Army, Appellant

                                      ARMY 20090092

               Headquarters, 10th Mountain Division (LI) & Fort Drum
                            Andrew Glass, Military Judge
              Lieutenant Colonel Steven P. Hester, Staff Judge Advocate

For Appellant: Colonel Mark Tellitocci, JA; Major Jonathan F. Potter, JA; Major
Laura R. Kesler, JA; Captain Pamela Perillo, JA (on brief).

For Appellee: Major Christopher B. Burgess, JA; Major Ryan R. McKinstry, JA;
Captain Stephen Latino, JA (on brief).

                                     15 November 2012
                        ----------------------------------------------------
                         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 rape of a child under the age of sixteen
years, sodomy and indecent act on a child under the age of sixteen years in violation
of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920,
925, and 934 [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable
discharge and confinement for ten years. The convening authority approved only so
much of the adjudged sentence as provided for a dishonorable discharge and
confinement for nine years.

       This case was previously submitted to this court for review pursuant to Article
66, UCMJ. On 28 February 2011, we issued a decision in this case, summarily
affirming the findings of guilty and the sentence. United States v. Young, ARMY
20090092 (Army Ct. Crim. App. 28 Feb. 2011). 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, 

(C.A.A.F. 2011). On 17 February 2012, we issued a
decision in this case, affirming the findings of guilty and the sentence. United States
YOUNG – ARMY 20090092

v. Young, ARMY 20090092 (Army Ct. Crim. App. 17 Feb. 2012). On 10 July 2012,
our superior court reversed our decision as to Charge V and its Specification,
indecent act on a child under the age of sixteen years, 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, 

(C.A.A.F. 2012). United States v. Young, 

(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.” United States v. Fosler, 

,
232 (C.A.A.F. 2011). Pursuant to 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.’” 

(citing United
States v. Cotton, 

, 633 (2002)).

       In view of Humphries, we are compelled to disapprove the finding of guilt as
to the Article 134, UCMJ, offense previously affirmed. The specification does not
contain allegations of terminal elements under Article 134, UCMJ, and there is
nothing in the record to satisfactorily establish notice of the need to defend against a
terminal element as required under Humphries. Therefore, we now reverse
appellant’s conviction for indecent act on a child under the age of sixteen years and
dismiss the defective specification which failed to state an offense in light of Fosler.

                                       CONCLUSION

       On consideration of the entire record, the findings of guilty of Charge V and
its Specification 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, 

(C.M.A. 1986), and United States v. Moffeit, 

(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms the sentence as approved by the convening
authority.

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YOUNG – ARMY 20090092


                        FOR
                        FOR THE
                            THE COURT:
                                COURT:




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




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