ON RECONSIDERATION EN BANC1
McGUIRE, Judge:
Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of making false official statements in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of wrongfully using a controlled substance on divers occasions and one specification of wrongfully distributing a controlled substance, both in violation of Article 112a, UCMJ; one specification of wrongfully and falsely altering a military identification card and one specification of using Spice2 on divers occasions, both in violation of Article 134, UCMJ. The military judge sentenced
[710]*710Appellant to reduction to E-l, confinement for ninety days, and a bad-conduct discharge. The convening authority approved only so much of the sentence as provided for confinement for sixty days and reduction to E-l in accordance with the pretrial agreement.
The panel opinion in this case3 is vacated and replaced by this opinion.
Appellant submitted this case on its merits. The panel set aside Charge III, Specification 3 because the specification was defective. The Government requested reconsideration, en banc, which we granted.4 We now review in particular, Charge III, Specification 3, which reads:
In that Fireman Codie J. Tevelein, U.S. Coast Guard, Coast Guard Cutter POLAR SEA (WAGB 11), on active duty, did, at or near Seattle, Washington, on divers occasions from on or about 23 February 2009 to on or about 21 October 2010, use Spice, which conduct was prejudicial to good order and discipline in the armed forces.5
Here, the specification only asserts that FN Tevelein used Spice, and that such conduct was prejudicial to good order and discipline. We review whether this type of specification, as drafted, states an offense, and whether Appellant had fair notice that his alleged conduct was punishable. We discuss both issues and affirm the trial court result.
Standard of Review.
“Whether a specification is defective and the remedy for such error are questions of law, which we review de novo.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citing United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.2006); United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F.2011)).
Sufficiency of the Specification:
This case requires us to resolve the conflict between prior panel decisions of this Court. Does a novel specification under Article 134 require the inclusion of words of criminality such as “wrongful” or “unlawful” to describe the conduct at issue, as we found in United States v. Hughey,6 or is the terminal element sufficient, as we held in United States v. Farencel7 As more fully explained below, we hold that alleging the terminal element is sufficient.
The military is a notice pleading jurisdiction.8 In United States v. Sell, the U.S. Court of Military Appeals (now, the Court of Appeals for the Armed Forces) held that:
The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.9
An Article 134(1) disorder has two elements: (1) That the accused did or failed to do certain acts; and (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces.10 Here, the specification alleged that the Appellant “did.. .use Spice” to establish the first element, and the specification alleged that, under the circumstances, this conduct was to the prejudice of good order and discipline.11 Thus, we conclude that the test set forth in Davis and Sell has been met.
[711]*711The panel opinion held that Specification 3 of Charge III failed to state an offense because it lacked words of criminality. Although there is some support in military justice jurisprudence for this position with regard to drug offenses,12 and in other contexts,13 it must be noted that much of this precedent was in the days before the enactment of Article 112a for drug offenses, and before the Court of Appeals for the Armed Forces made clear in Foster14 that the terminal element must be specifically alleged in an Article 134 specification.15 In the days before the enactment of Article 112a for drug offenses, and before the Foster decision, where it was not considered necessary to allege the terminal element, military courts concluded that, for an act that was not in itself an offense, words importing criminality were a requirement, and if lacking, the specification was deficient.16
Central to our earlier opinion was a conclusion that the words of the terminal element, ie., that conduct was prejudicial to good order or discipline or service discrediting, were not words of criminality. Such a conclusion is not consonant with Davis, in which the court equated the terminal element language of Article 134 with words of criminality: “We can see no harm in alleging criminality in terms of the provision of Article 134 which made the conduct wrongful, rather than by using a general allegation that appellant’s activity was ‘wrongful’ or ‘unlawful.’ ”17 The Davis court distinguished Brice, by pointing out that the specification at issue in that case contained neither the terminal element, nor words of criminality.18 This court acknowledged the Davis analysis in United States v. Farence:19 “Stated differently, the words ‘prejudicial to the good order and discipline of the armed forces’ are, without more, ‘words importing criminality’ sufficient to support a specification alleging acts that would not otherwise constitute a crime.”20 While acknowledging that military case law on this point “has been at times unclear,”21 we endorse the principle enunciated in Davis, and applied in Farence, that the words of the terminal element pled in an Article 134 specification constitute words of criminality sufficient to support a specification alleging acts that would not otherwise constitute a crime, In doing so, we overrule United States v. Hughey, 72 M.J. 809, 813, 814 (C.G.Ct.Crim.App.2013)22 in which a panel of this court reached a contrary conclusion.
Where, as here, the specification at issue “contains the elements of the offense [712]
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ON RECONSIDERATION EN BANC1
McGUIRE, Judge:
Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of making false official statements in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of wrongfully using a controlled substance on divers occasions and one specification of wrongfully distributing a controlled substance, both in violation of Article 112a, UCMJ; one specification of wrongfully and falsely altering a military identification card and one specification of using Spice2 on divers occasions, both in violation of Article 134, UCMJ. The military judge sentenced
[710]*710Appellant to reduction to E-l, confinement for ninety days, and a bad-conduct discharge. The convening authority approved only so much of the sentence as provided for confinement for sixty days and reduction to E-l in accordance with the pretrial agreement.
The panel opinion in this case3 is vacated and replaced by this opinion.
Appellant submitted this case on its merits. The panel set aside Charge III, Specification 3 because the specification was defective. The Government requested reconsideration, en banc, which we granted.4 We now review in particular, Charge III, Specification 3, which reads:
In that Fireman Codie J. Tevelein, U.S. Coast Guard, Coast Guard Cutter POLAR SEA (WAGB 11), on active duty, did, at or near Seattle, Washington, on divers occasions from on or about 23 February 2009 to on or about 21 October 2010, use Spice, which conduct was prejudicial to good order and discipline in the armed forces.5
Here, the specification only asserts that FN Tevelein used Spice, and that such conduct was prejudicial to good order and discipline. We review whether this type of specification, as drafted, states an offense, and whether Appellant had fair notice that his alleged conduct was punishable. We discuss both issues and affirm the trial court result.
Standard of Review.
“Whether a specification is defective and the remedy for such error are questions of law, which we review de novo.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citing United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.2006); United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F.2011)).
Sufficiency of the Specification:
This case requires us to resolve the conflict between prior panel decisions of this Court. Does a novel specification under Article 134 require the inclusion of words of criminality such as “wrongful” or “unlawful” to describe the conduct at issue, as we found in United States v. Hughey,6 or is the terminal element sufficient, as we held in United States v. Farencel7 As more fully explained below, we hold that alleging the terminal element is sufficient.
The military is a notice pleading jurisdiction.8 In United States v. Sell, the U.S. Court of Military Appeals (now, the Court of Appeals for the Armed Forces) held that:
The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.9
An Article 134(1) disorder has two elements: (1) That the accused did or failed to do certain acts; and (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces.10 Here, the specification alleged that the Appellant “did.. .use Spice” to establish the first element, and the specification alleged that, under the circumstances, this conduct was to the prejudice of good order and discipline.11 Thus, we conclude that the test set forth in Davis and Sell has been met.
[711]*711The panel opinion held that Specification 3 of Charge III failed to state an offense because it lacked words of criminality. Although there is some support in military justice jurisprudence for this position with regard to drug offenses,12 and in other contexts,13 it must be noted that much of this precedent was in the days before the enactment of Article 112a for drug offenses, and before the Court of Appeals for the Armed Forces made clear in Foster14 that the terminal element must be specifically alleged in an Article 134 specification.15 In the days before the enactment of Article 112a for drug offenses, and before the Foster decision, where it was not considered necessary to allege the terminal element, military courts concluded that, for an act that was not in itself an offense, words importing criminality were a requirement, and if lacking, the specification was deficient.16
Central to our earlier opinion was a conclusion that the words of the terminal element, ie., that conduct was prejudicial to good order or discipline or service discrediting, were not words of criminality. Such a conclusion is not consonant with Davis, in which the court equated the terminal element language of Article 134 with words of criminality: “We can see no harm in alleging criminality in terms of the provision of Article 134 which made the conduct wrongful, rather than by using a general allegation that appellant’s activity was ‘wrongful’ or ‘unlawful.’ ”17 The Davis court distinguished Brice, by pointing out that the specification at issue in that case contained neither the terminal element, nor words of criminality.18 This court acknowledged the Davis analysis in United States v. Farence:19 “Stated differently, the words ‘prejudicial to the good order and discipline of the armed forces’ are, without more, ‘words importing criminality’ sufficient to support a specification alleging acts that would not otherwise constitute a crime.”20 While acknowledging that military case law on this point “has been at times unclear,”21 we endorse the principle enunciated in Davis, and applied in Farence, that the words of the terminal element pled in an Article 134 specification constitute words of criminality sufficient to support a specification alleging acts that would not otherwise constitute a crime, In doing so, we overrule United States v. Hughey, 72 M.J. 809, 813, 814 (C.G.Ct.Crim.App.2013)22 in which a panel of this court reached a contrary conclusion.
Where, as here, the specification at issue “contains the elements of the offense [712]*712intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him ... shows with accuracy to what extent he may plead a former acquittal or conviction” Sell, supra, note 8, the specification is legally sufficient.
Notice;
Although the specification was sufficient to apprise Appellant of what he needed to defend against, there is a second notice issue: Did Appellant have notice that the conduct he was engaged in was criminal? It is well settled that conduct that is not specifically listed in the Manual for Courts-Martial (MCM) may still be prosecuted under Article 134. United States v. Saunders, 59 M.J. 1, 6 (C.A.A.F.2003) (citing United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F.2003)). However, due process requires that a person have ‘fair notice’ that an act is criminal before being prosecuted for it. Saunders, 59 M.J. 1, 6; citing Vaughan, 58 M.J. 29, 31. Potential sources of fair notice include federal law, state law, military case law, military custom and usage, and militaiy regulations. Vaughan, 58 M.J. at 31. The issue of fair notice was not raised by Appellant at trial where he pled guilty to the specification or on appeal. When not objected to at trial, defects in a specification are reviewed for plain error.23
Under plain error review, “before an appellate court can correct an error not raised at trial, there must be: (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings. Cotton, 535 U.S. 625, at 631-632, 122 S.Ct. 1781; citing Johnson v. United States, 520 U.S. 461, at 467, 117 S.Ct. 1544, 137 L.Ed.2d 718.24
However, Article 59(a), UCMJ, 10 U.S.C. § 859(a), provides that, “[a] finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” The Court of Appeals for the Armed Forces, in United States v. Powell,25 has clarified that the military rules are different from the federal rules analyzed in Olano26 and Cotton,27 and that Courts of Criminal Appeals, in carrying out their mandatory review of the record under Article 66(c), UCMJ, 10 U.S.C. § 866(c), are distinct from appellate courts carrying out discretionary review.28
Thus, in military practice, plain error analysis requires a showing that: “(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right.”29 Here, the Appellant entered into a stipulation of fact, and admitted that he used Spice to get high, for its mind-altering effects, that he expected the effects to be similar to that of marijuana, a Schedule 1 controlled substance, that he used Spice with other Coast Guard members, and in front of other Coast Guard members, in Coast Guard leased housing, and that he [713]*713used Spiee in part because he knew it would not be detected by an urinalysis test, PE 1, p. 5-6; R. 99-126, Under these circumstances, we conclude that the Appellant had notice that his conduct was,punishable, and we cannot find it was plain error for the military judge to accept his plea of guilty to specification 3 of Charge III.
Appellate Delay:
The parties have petitioned the court for a grant of relief due to the appellate delay in deciding this case.30 There has been significant appellate delay since the motion for en banc reconsideration was granted. The Court of Appeals for the Armed Forces set forth the framework for review of delays in post trial and appellate review in United States v. Moreno,31 and applying the factors set forth in Barker v. Wingo32 We acknowledge that the appellate delay in this case is facially unreasonable, and. that there is no adequate justification. While we find no particularized showing of prejudice, we find that, balancing the other Barker factors, the delay in this case is such that tolerating it would “adversely affect the public’s perception of fairness and integrity of the military justice system,”33 and we grant relief. We will disapprove the reduction in rate of one pay-grade.
Decision
We have reviewed the record in accordance with Article 66, UCMJ, 10 U.S.C. § 866. Upon such review, the findings are determined to be correct in law and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty are affirmed. In view of our finding of unreasonable appellate delay, only so much of the sentence as provides for confinement for sixty days and reduction to E-2 is affirmed. We order the preparation of a revised Promulgating Order consistent with this opinion.
Judges Clemens, Havranek, Judge, Norris, and Spolidoro concur.