United States v. Hackler

PERLAK, Judge

(concurring in the result):

In my view, this specification does, by necessary implication, provide notice of the terminal element. I can conceive of no more apparent affront to good order and discipline than a deliberate breaking of the discipline-enforcing restriction order of a military commander. I would end the analysis there, upon a finding of no error, and affirm this guilty finding under Article 134.

The Court of Appeals for the Armed Forces’ ruling in United States v. Fosler, 70 M.J. 225 (C.A.A.F.2011), leaves me with the following reductive assessment. As a baseline, any specification brought under any punitive article which fails to state an offense is axiomatieally not a crime and therefore must be set aside. Specifications under Article 134, in particular, in which the terminal element is not explicitly pled, must be assessed to determine if the specification nonetheless states an offense by necessary implication of the terminal element. See RULE FOR COURTS-MARTIAL 307(c), MANUAL FOR COURTS-MARTIAL, UNITED *630STATES (2008 ed.). If the specification does not carry the necessary implication, then service courts of criminal appeals must review the procedural posture of the case. We look for any challenges made to the specification at the trial level to determine whether or not the specification may be affirmed. An appellant who contests the specification at trial and on appeal receives the narrow scrutiny of Fosler. An appellant who does not contest the specification at trial, approaches his appeal knowing that the analysis and holding in United States v. Watkins, 21 M.J. 208 (C.M.A.1986), awaits.

On the face of this specification, there is no error apparent which would beget the additional step of an analysis of the procedural posture or any determinations under Fosler or Watkins.

I concur in the ultimate conclusion of affirming the findings and sentence in this case.