UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class JOHN F. MULLINGS
United States Army, Appellant
ARMY 20100925
Headquarters, U.S. Army Maneuver Support Center of Excellence
Charles D. Hayes, Military Judge
Colonel James R. Agar, II, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Kenneth W. Borgnino, JA (on brief).
4 October 2012
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SUMMARY DISPOSITION
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Per Curiam:
A panel of officers, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of three specifications of failure to obey an order, assault
consummated by battery, housebreaking, and adultery, in violation of Articles 92,
128, 130 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928, 930,
934 (2006) [hereinafter UCMJ]. See Manual for Courts-Martial, United States
(2012 ed.), pt. IV, ¶ 62.b. The panel sentenced appellant to a bad-conduct discharge,
confinement for eight months, forfeiture of all pay and allowances for eight months,
and reduction to the grade of E-4. The convening authority approved the adjudged
sentence.
This case is before us for review under Article 66, UCMJ. Appellant assigns
four errors and raises an additional matter pursuant to United States v. Grostefon, 12
MULLINGS—ARMY 20100925
M.J. 431 (C.M.A. 1982). * Two of appellant’s assigned errors possess merit and
warrant brief remark.
Appellant here asserts that the evidence is legally and factually insufficient to
support conviction for that portion of specification 1 of Charge I finding that
appellant wrongfully contacted Miss B. The government concedes the point and we
agree that the evidence is legally insufficient to support the finding of guilty as to
that language in the specification concerned and will therefore take corrective action
in our decretal paragraph. See United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
In relation to the charged adultery under Article 134, UCMJ, and in light of
United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are required to
disapprove the findings of guilt as to Charge IV and its specification. That
specification did not contain an allegation of a terminal element under Article 134,
UCMJ, nor is there anything 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 under Article 134, UCMJ, 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).
CONCLUSION
The findings of guilty of Charge IV and its specification are set aside and
dismissed. The court affirms only so much of the finding of guilty of
Specification 1 of Charge I as finds that appellant “having knowledge of a lawful
order issued by Captain [TJ], to wit: Military Protective order issued to Sergeant
First Class Mullings protecting [DB], dated 25 January 2010, an order which it was
his duty to obey, did, at or near Saint Robert, Missouri, on or about 17 April 2010,
fail to obey the same by wrongfully communicating with Miss [DB], and coming
within 100 feet of Miss B.” The remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the errors noted, the entire record, and in
*
By footnote to his statement of the case, appellant points out, among other things,
that the convening authority, in his action, failed to address credit for pretrial
confinement, ordered by the military judge. While this fails to conform to
regulatory requirement (Army Reg. 27-10, Legal Services: Military Justice, para. 5-
32a (16 Nov. 2005)), appellant does not allege prejudice and neither asserts the
failure as error, nor complains about it pursuant to Grostefon. The record reveals
that the staff judge advocate’s recommendation and the result of trial correctly note
appellant’s confinement credit. Absent assertion or evidence to the contrary, we
conclude that appellant properly received that credit.
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MULLINGS—ARMY 20100925
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
sentence as approved by the convening authority.
FOR THE COURT:
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
MALCOLM
Clerk of
Clerk of Court
Court
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