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

                           UNITED STATES, Appellee
                                         v.
                      Private First Class JARVIS J. PILAGO
                          United States Army, Appellant

                                   ARMY 20100414

               Headquarters, Maneuver Support Center of Excellence
                         Charles D. Hayes, Military Judge
            Colonel Steven E. Walburn, Staff Judge Advocate (pretrial)
    Lieutenant Colonel James S. Tripp, Acting Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Stephen J. Rueter, JA (on brief).

For Appellee: Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on
brief).

                                       5 July 2012

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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of forcible sodomy and adultery in violation of Articles 125
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934 (2006)
[hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge,
confinement for forty-two months, total forfeiture of all pay and allowances for
forty-two months, and reduction to the grade of E-1. The convening authority
approved only so much of the adjudged sentence as provides for a dishonorable
discharge, total forfeiture of all pay and allowances for thirty months, confinement
for thirty months, and reduction to the grade of E-1.  

       This case is before this court for review under Article 66, UCMJ. Appellant
has raised the following assignment of error:
PILAGO – ARMY 20100414


      THE CHARGE [CHARGE IV] AND ITS SPECIFICATION FAIL TO
      STATE AN OFFENSE AS THE SPECIFICATION DOES NOT
      ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE
      “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES V.
      FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

We agree and grant relief in our decretal paragraph.

                             LAW AND DISCUSSION

       As drafted, the specification charged appellant, a married man, with
committing adultery by wrongfully having sexual intercourse with Mrs. DD, a
married woman who was not appellant’s wife. This specification did not allege a
“terminal element” of an Article 134, UCMJ, clause 1 or clause 2 offense,
specifically, whether appellant’s conduct was prejudicial to good order and
discipline and/or service discrediting.

       The Specification of Charge IV did not include the terminal element of an
Article 134, UCMJ, clause 1 or 2 offense, either explicitly or by necessary
implication. Pursuant to our superior court’s decisions in United States v.
Humphries, __ M.J. ___ (C.A.A.F. 15 June 2012), United States v. Ballan, 71 M.J.
28 (C.A.A.F. 2012) and United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011),
because the Specification of Charge IV did not include the terminal element, it fails
to state an offense. After reviewing the record of trial in its entirety, we find that
“under the totality of the circumstances in this case, the Government’s error in
failing to plead the terminal element of Article 134, UCMJ, resulted in material
prejudice to [appellant’s] substantial, constitutional right to notice.” See United
States v. Girouard, 70 M.J. 5, 11-12 (C.A.A.F. 2011); Fosler at 229; Humphries, slip
op. at 16 (internal citations omitted). Accordingly, appellant’s conviction for
adultery cannot stand.

       In regards to sentencing, we conclude the members would have properly
considered the evidence adduced regarding the adultery because the actions
surrounding the adultery were inextricably linked to the offense for which appellant
was properly convicted. “[T]he sentencing landscape would not have been
drastically changed” by the absence of The Specification of Charge IV. We are
satisfied beyond a reasonable doubt the members would have adjudged a sentence no
less than the sentence approved by the convening authority in this case. United
States v. Craig, 67 M.J. 742, 746 (N.M. Ct. Crim. App. 2009) aff’d on other
grounds, 68 M.J. 399 (C.A.A.F. 2010); see also United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).




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PILAGO – ARMY 20100414


                                   CONCLUSION

       The finding of guilty of Charge IV and its Specification is set aside. The
remaining finding of guilty is affirmed. Reassessing the sentence on the basis of the
error 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: 

                                        JOANNE P. TET
                                        Acting Clerk of Court
                                       JOANNE P. TETREAULT ELDRIDGE
                                       Deputy Clerk of Court




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