United States v. Specialist BENJAMIN M. ACKMAN ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist BENJAMIN M. ACKMAN
United States Army, Appellant
ARMY 20090615
Headquarters, United States Army Maneuver Center of Excellence
James Pohl, Military Judge
Colonel Tracy A. Barnes, Staff Judge Advocate
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain E. Patrick Gilman, JA (on brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Major Adam S. Kazin, JA; Captain Joshua W. Johnson, JA (on brief).
8 August 2012
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of two specifications of wrongful use of cocaine in violation of
Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2006) [hereinafter
UCMJ]. At the same general court-martial, a panel of officer and enlisted members
convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent
conduct, and adultery, in violation of Articles 120 and 134, UCMJ. 1 See Manual for
Courts-Martial, United States (2012 ed.), pt. IV, ¶ 62.b. The panel sentenced
appellant to a dishonorable discharge, confinement for four years, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
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One specification of unlawful entry in violation of Article 134, UCMJ, was
dismissed.
ACKMAN—ARMY 20090615
disapproved one year of confinement, waived a portion of the automatic forfeitures
for six months, 2 and otherwise approved the remainder of the sentence.
On 30 November 2011, we issued a decision in this case, affirming the
findings of guilty and the sentence. On 10 July 2012, our superior court reversed
our decision as to Specification 1 of Charge II (renumbered) (adultery in violation of
Article 134, UCMJ) and as to the sentence, 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, 71 M.J. 209 (C.A.A.F. 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.
In light 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 adultery and dismiss the defective specification which
failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011).
On consideration of the entire record, the finding of guilty of Specification 1
of Charge II (renumbered) is set aside and that specification is dismissed. The
remaining findings of guilty are affirmed. 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. 402
Prior to action, the convening authority approved appellant’s request for waiver of
automatic forfeitures in the amount of $1399.50 pay per month (the basic pay
amount for an E1 in 2009). This waiver was approved for a six-month period to
begin after action. Thereafter, the convening authority took action and reiterated the
previously approved waiver of forfeitures, directing payment to Mrs. Tracy Ackman
for a period of six months. However, the convening authority also approved the
adjudged sentence to total forfeiture of all pay and allowances. Thus, although the
automatic forfeitures were waived, the adjudged forfeitures were still in effect,
thereby leaving no forfeitures to pay for the benefit of Mrs. Ackman. In order to
effectuate the clear intent of the convening authority and in the spirit of judicial
economy, we will set aside that portion of the sentence that included total forfeiture
of all pay and allowances in our decretal paragraph. To the extent that the Defense
Finance and Accounting Service did not execute the convening authority’s waiver of
forfeitures of $1399.50 pay per month for a six month period, we order retroactive
payment to Mrs. Tracy Ackman.
2
ACKMAN—ARMY 20090615
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms only so much of the sentence as provides for a
dishonorable discharge, confinement for three years, and reduction to the grade of
E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of his sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
3