United States v. Staff Sergeant DANIEL H. GASKINS ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc
UNITED STATES, Appellee
v.
Staff Sergeant DANIEL H. GASKINS
United States Army, Appellant
ARMY 20080132
Headquarters, United States Army Southern European Task Force
Timothy Grammell and Gregg Marchessault, Military Judges
Lieutenant Colonel Harrold J. McCracken, Staff Judge Advocate (pretrial)
Colonel Harrold J. McCracken, Staff Judge Advocate (recommendation)
Major Sean T. McGarry, Acting Staff Judge Advocate (addendum)
Headquarters, United States Army Fires Center of Excellence and Fort Sill
Kirsten V. Brunson, Military Judge
Colonel Jeffery D. Pedersen, Staff Judge Advocate (recommendation on rehearing)
For Appellant: William E. Cassara, Esquire (argued); Captain Elizabeth Turner, JA;
William E. Cassara, Esquire (on original brief); Captain E. Patrick Gilman, JA;
William E. Cassara, Esquire (on brief after rehearing)
For Appellee: Captain Nicole L. Fish, JA (argued); Colonel Norman F.J. Allen, III,
JA; Lieutenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA; Captain
Nicole L. Fish, JA (on original brief); Lieutenant Colonel Amber J. Roach, JA; Captain
Chad M. Fisher, JA (on brief after rehearing)
12 July 2012
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SUMMARY DISPOSITION ON FURTHER REVIEW
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SIMS, Senior Judge:
A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of carnal knowledge, indecent acts with a
child, and indecent assault, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement for
twelve years, forfeiture of all pay and allowances, and reduction to the grade of E1.
On 27 August 2010, this court sitting En Banc ordered that appellant’s case be
returned to The Judge Advocate General for a hearing pursuant to United States v.
GASKINS— ARMY 20080132
DuBay, 17 U.S.C.M.A. 146, 37 C.M.R. 411 (1967). United States v. Gaskins, 69 M.J.
569, 573 (Army Ct. Crim. App. 2010). On 9 December 2010, our superior court, in
granting appellant’s petition in the nature of a writ of prohibition, concluded that a
DuBay hearing would be “inappropriate under the facts of this case” and remanded the
case “for further consideration of . . . their options.” Gaskins v. Hoffman, 69 M.J. 452(C.A.A.F. 2010).
Thereafter, this court, again sitting En Banc, affirmed the findings of guilty, set
aside the sentence, and authorized a sentence rehearing by the same or a different
convening authority. United States v. Gaskins, Army Dkt. 20080132 (10 February
2011). Appellant again filed a petition for extraordinary relief in the nature of a writ
of prohibition with the Court of Appeals for the Armed Forces which was “denied
without prejudice to raising the issue in the normal course of trial or appellate review.”
Gaskins v. Hoffman, 70 M.J. 207 (C.A.A.F. 2011).
On 18 October 2011, a sentence rehearing was held at Fort Sill, Oklahoma. A
military judge sitting as a general court-martial sentenced appellant to a dishonorable
discharge, confinement for nine years, forfeiture of all pay and allowances, and
reduction to the grade of E1. The convening authority approved the sentence as
adjudged at the rehearing and the case is again before this court for review pursuant to
Article 66, UCMJ.
We have considered the entire record and the submissions of the parties, to
include the issues personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).  Having previously affirmed the findings of

Although not raised by appellant, we note that both the Specification of Charge II and
the Specification of the Additional Charge fail to allege the terminal elements of a
violation of Article 134, UCMJ. Accordingly, we reviewed this case in light of United
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), United States v. Ballan, 71 M.J. 28(C.A.A.F. 2012), and United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). The Court
of Appeals for the Armed Forces decided United States v. Fosler more than two months
prior to the start of appellant’s sentence rehearing. Although appellant made numerous
motions at this rehearing, he never made a motion to dismiss for failure to state an
offense or otherwise objected to the form of the charges on Fosler grounds. Appellant
also made no mention of a Fosler issue in the eleven pages of matters submitted
pursuant to Rule for Courts-Martial 1105 on 10 February 2012. Finally, appellant
makes no mention of a Fosler issue in his pleadings before this court which were filed
on 8 May 2012, nine months after the decision in Fosler. Because it was settled law at
the time of appellant’s rehearing that a failure to allege the terminal elements in an
Article 134, UCMJ offense constitutes error, we conclude that appellant’s failure to
raise the issue constitutes a conscious waiver. Humphries, 71 M.J. at 212 (citing
United States v. Harcrow, 66 M.J. 154, 156-58 (C.A.A.F. 2008)).
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GASKINS— ARMY 20080132
guilty, we now hold the sentence as approved by the convening authority to be correct
in law and fact. Accordingly, both findings and sentence are AFFIRMED.
Chief Judge DARPINO, Senior Judge JOHNSON, Senior Judge KERN, Judge
COOK, Judge GALLAGHER, Judge YOB, Judge ALDYKIEWICZ, Judge KRAUSS,
and Judge BURTON concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
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