A charge and specification under the military’s “general article,” Article 134 of the Uniform Code of Military Justice, must allege either expressly or by necessary implication one of the article’s “terminal elements” to pass constitutional muster, the U.S. Court of Appeals for the Armed Forces ruled Aug. 8. The decision elicited two vigorous dissenting opinions criticizing the majority for abandoning settled caselaw that predates enactment of the UCMJ and for raising more questions than it answered. (United States v. Fosler)
“Stare decisis does not require that we ignore the fact that the basis for the historical practice of omitting the terminal element when an Article 134 offense is charged has been substantially eroded.”
Judge Scott W. Stucky
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