UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           SIMS, COOK, and GALLAGHER
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     Staff Sergeant RICHARD J. McINNISH
                          United States Army, Appellant

                                  ARMY 20090923

               U.S. Army Basic Combat Training Center of Excellence
                           John McAfee, Military Judge
         Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Barbara A. Snow-
Martone, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Sara M. Root, JA; Captain
Kenneth W. Borgnino, JA (on brief).


                                 30 November 2011
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                              SUMMARY DISPOSITION
                             ----------------------------------

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his pleas, of three specifications of failure to obey a regulation, one
specification of false official statement, two specifications of sodomy, and three
specifications of adultery, in violation of Articles 92, 107, 125, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 907, 925, and 934 [hereinafter UCMJ].
Appellant was sentenced to a bad-conduct discharge, and confinement for seven
months, and reduction to the grade of E1. The convening authority approved only so
much of the sentence to confinement as provided for five months confinement and
otherwise approved the adjudged sentence. This case is before us for review
pursuant to Article 66, UCMJ.
McINNISH — ARMY 20090923

                              LAW AND DISCUSSION

       In United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011), our Superior
Court held that a provident plea to Article 125, UCMJ, which implicates both
criminal and constitutionally protected conduct, must include a colloquy between the
military judge and the accused establishing an acknowledgment by the accused “of
the critical distinction between permissible and prohibited behavior.” Hartman at
468. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court recognized
constitutional limitations upon the criminalization of certain intimate sexual
conduct. In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the CAAF
“identified a tripartite framework for addressing Lawrence challenges within the
military context….” Hartman at 468. The considerations identified in Marcum can
provide “the appropriate framework for distinguishing between conduct
constitutionally protected under Lawrence and conduct that may be prosecuted
criminally under Article 125.” Id. In this case, both specifications of Charge III
implicate conduct identified in Lawrence as potentially protected, that being the act
of sodomy. Although the colloquy in this case elicited facts pertinent to
consideration of the Marcum framework, the discussion between the military judge
and the appellant did not establish an understanding by the appellant as to the
relationship between these facts and the criminal nature of his conduct in light of
Lawrence. Accordingly, appellant’s pleas of guilty to Charge III and its
specifications are not provident and the findings of guilt are set aside.

       The second issue warranting discussion concerns whether Charge IV and its
specifications allege an offense despite an omission of express words alleging that
appellant’s conduct was to the prejudice of good order and discipline in the armed
forces, of a nature to bring discredit upon the armed forces, or a non-capital crime or
offense. Article 134, Clauses 1, 2, and 3, UCMJ. United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011)

       Whether a charge and specification state an offense is a question of law that is
reviewed de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006).
Together, the charge and specification must “allege every element of the offense
either expressly or by necessary implication, so as to give the accused notice and
protect him against double jeopardy.” Id. (quoting United States v. Dear, 40 M.J.
196, 197 (C.M.A. 1994)). Rule for Courts-Martial 307(c)(3). Where a charge and
specification are not challenged at trial, their language is to be liberally construed.
Roberts, __ M.J. ___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011). Cf. Fosler
at 230. Additionally, as found in the case before us, “standing to challenge a
specification on appeal [is] considerably less where an accused knowingly and
voluntarily pleads guilty to the offense.” United States v. Watkins, 21 M.J. 208, 210
(C.M.A. 1986).

       In the absence of an objection at trial, we will not set aside a charge and
specification unless it is “so obviously defective that it could not be reasonably

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McINNISH — ARMY 20090923

construed to embrace [the] terminal element.” Roberts at 5; United States v.
Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986). A charge and specification initially
challenged on appeal, while being liberally construed, will not be held invalid
“absent a clear showing of substantial prejudice to the accused -- such as a showing
that the indictment is so obviously defective that by no reasonable construction can
it be said to charge the offense for which conviction was had.” Watkins at 209-10
(quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied,
384 U.S. 964 (1966)(internal quotation marks omitted)). Appellant has failed to
make such a showing.

       In this case, appellant did not complain that Charge IV and its Specifications
failed to state an offense by objecting at trial, in his post-trial submissions to the
convening authority, or in his pleadings before this court. The charge sets forth a
violation of Article 134, UCMJ, and the specifications state the date, location, the
identity of the participants, their pertinent status, and the wrongful act. See, e.g.,
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)(holding a maltreatment
specification provided notice because “it set[] forth the Article of the Code, name of
the victim, the time frame of the offense, and the comments alleged to have been
made by appellant”). The specifications also identify that the appellant was a Staff
Sergeant and the co-actor was a Private in each instance. Accordingly, these
allegations necessarily imply that appellant’s conduct was prejudicial to good order
and discipline and service discrediting.

       Furthermore, there is ample evidence in the record that appellant was on
notice of the charge and specifications against him. Appellant negotiated a pretrial
agreement, pled guilty to the specifications with the benefit of advice from his trial
defense counsel, and was advised by the military judge of the elements of adultery
—to include the terminal elements—after which appellant described how his conduct
was both prejudicial to good order and discipline and service discrediting.

       We hold that the adultery charge was not so obviously defective that it could
not be reasonably construed to embrace this terminal element. Roberts at 5. There
is no reason to conclude appellant was misled or that he might otherwise suffer
prosecution for these same offenses twice. He received notice of the offenses
against which he had to defend and protection against double jeopardy. Charge IV
and its Specifications state an offense.

                                   CONCLUSION

      On consideration of the entire record and the submissions of the parties, the
findings of guilty of the Specifications of Charge III are set aside and dismissed.
The remaining findings of guilty are affirmed. The dismissal of the Specifications
of Charge III does not dramatically change the sentencing landscape. The military
judge found each of the Specifications of Charge III to be multiplicious for
sentencing purposes with the remaining charges and specifications pertaining to each

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McINNISH — ARMY 20090923

identified co-actor. Furthermore, the maximum possible punishment is not affected
by the dismissal. Reassessing the sentence on the basis of the errors noted, the
entire record, and in accordance with the principles of United States v. Sales, 22
M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identified by Judge Baker in his concurring opinion, the court
affirms the sentence.

      We have also considered the matters personally raised by appellant pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be
without merit.



                                      FOR THE COURT: 
                                      FOR THE COURT:


                                      MALCOLM H. SQUIRES, JR                   
                                      Clerk of Court 
                                      MALCOLM H. SQUIRES JR.




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