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The terminal element
CAAF continues to deal with cases where the terminal element in Art. 134 cases has not been plead. While the cases are not being terminated, a number are visiting a local stop along the way. Quite a few summary dispositions with:
On consideration of the petition for grant of review of the decision of the United States X Court of Criminal Appeals, and in view of United States v. Goings, 72 M.J.202 (C.A.A.F. 2013), and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that said petition is granted on the following issue:
WHETHER THE ARMY COURT ERRED IN DETERMINING THE CHARGE SHEET AND GOVERNMENT CASE-IN-CHIEF REASONABLY PLACED APPELLANT ON NOTICE OF THE TERMINAL ELEMENT WHERE THE ONLY MENTION OF THE TERMINAL ELEMENT WAS DURING THE MILITARY JUDGE’S FINDINGS INSTRUCTIONS.
The decision of the United States X Court of Criminal Appeals is reversed. The findings of guilty to Charge II and Specifications 2 and 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the X. A rehearing on the affected charge and specifications is authorized.
BAKER, Chief Judge (dissenting):
I would affirm based on the analysis of the United States X Court of Criminal Appeals and based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting, and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).