United States v. Smith

CCA 20100646. Review granted on the following issue:

WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE TERMINAL ELEMENT CAN BE “NECESSARILY IMPLIED” FROM THE LANGUAGE OF THE SPECIFICATION. THE MISSING TERMINAL ELEMENTS FROM SPECIFICATIONS 1 AND 2 OF CHARGE II CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE? *164WHETHER THE SPECIFICATION FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

*163No briefs will be filed under Rule 25.