United States v. Kain

CCA 20100490. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 MJ. 225 (C.A.A.F. 2011).

*380The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

(dissenting): I dissent for the reasons stated in my dissenting opinion in Foster. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).