UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                     SALUSSOLIA, SALADINO, and ALDYKIEWICZ
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                          Staff Sergeant KERI L. DAVIS
                          United States Army, Appellant

                                  ARMY 20170561

                           Headquarters, Fort Stewart
                        David Robertson, Military Judge
               Colonel Michael D. Mierau, Jr., Staff Judge Advocate


For Appellant: Captain Steven J. Dray, JA; William E. Cassara, Esquire (on brief
and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Hannah E. Kaufman, JA; Major Marc B. Sawyer, JA (on brief).


                                      7 May 2019

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

Per Curiam:

       On appeal, appellant contends he was improvident to adultery, Specification 1
of Charge III, because the military judge did not elicit an adequate factual basis to
establish appellant’s adulterous encounter with SH was of a nature to bring discredit
upon the armed forces. 1 We agree.


1
  Following mixed pleas, a military judge sitting as a general court-martial
convicted appellant of one specification of willfully disobeying a lawful order, two
specifications of aggravated sexual assault of a child over the age of twelve, two
specifications of sodomy of a child under the age of sixteen, and two specifications
of adultery, in violation of Articles 92, 120, 125, and 134, Uniform Code of Military
Justice [UCMJ], 10 U.S.C. §§ 892, 920, 925, and 934. The military judge sentenced
appellant to a dishonorable discharge and confinement for seven years. The

                                                                      (continued . . .)
DAVIS—ARMY 20170561

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
military judge’s acceptance of the plea. See id. at 322. (citing United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

        To properly plead guilty to adultery with SH, in violation of Article 134,
UCMJ, appellant was required to admit: (1) he wrongfully had sexual intercourse
with SH; (2) either he or SH were married to someone else; and (3) that, under the
circumstances, his conduct was of a nature to bring discredit upon the armed
services. MCM, pt. IV, ¶ 62.(b). “Discredit,” in the context of an adultery charge,
means “to injure the reputation of the armed forces and includes adulterous conduct
that has a tendency, because of its open or notorious nature, to bring the service into
disrepute, make it subject to public ridicule, or lower it in public esteem.” MCM, pt.
IV, ¶ 62.c.(2) (emphasis added). Although appellant was not required to admit his
adulterous conduct actually damaged the reputation of the military, see United States
v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011); United States v. Saunders, 59 M.J. 1,
11 (C.A.A.F. 2003), adulterous conduct that is “private and discreet in nature may
not be service discrediting by this standard . . . .” MCM, pt. IV, ¶ 62.c.(2).

       During appellant’s providence inquiry, he admitted engaging in sexual
intercourse with SH, a former friend of his step-daughter. Appellant admitted that
the sexual act occurred while he was married to someone else, not SH. Appellant
explained that he and SH had sexual intercourse, while she was an adult civilian, in
the privacy of appellant’s home. Appellant did not indicate that any soldier or
civilian knew he engaged in sexual intercourse with SH. Rather, the factual basis
for admitting that his conduct was service discrediting rested on appellant’s
agreement with the military judge’s statement that appellant’s adultery would bring
discredit upon the armed forces, “[i]f a member of the public became aware that
[appellant was] having sexual intercourse with an eighteen-year-old girl that was a
high school friend of [appellant’s] stepdaughter.” When asked by the military judge
why he felt his conduct was service discrediting, appellant replied, “[P]eople see
soldiers as the light of the—you know, they see us as a hero. They see us as
someone to look up to, and for someone to find out something like that, that would
bring discredit.”


(. . . continued)
convening authority approved the sentence as adjudged, waiving automatic
forfeitures of pay and allowances for six months from the date of action.

After due consideration, appellant’s other assigned errors and matters personally
submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1992), do not
merit discussion nor relief.



                                            2
DAVIS—ARMY 20170561

       We are not satisfied appellant’s descriptions of the circumstances surrounding
his adultery and his conclusory statement evinced his understanding, knowing, and
voluntary admission that his conduct was of a nature to bring discredit upon the
armed forces. See, e.g., United States v. Care, 18 U.S.C.M.A. 535, 539, 40 C.M.R.
247 (1969) (guilty plea not truly voluntary unless defendant possesses an
understanding of the law in relation to the facts). To be clear, it is not this court’s
opinion that discrete adultery cannot be service discrediting. Rather, this court finds
the factual predicate articulated during appellant’s providence inquiry insufficient to
establish the requirements for service discrediting conduct as defined for this
specific Article 134 offense. Accordingly, we set aside appellant’s adultery
conviction, in Specification 1 of Charge III, in our decretal paragraph.

                                   CONCLUSION

      On consideration of the entire record, the finding of guilty to Specification 1
of Charge III is SET ASIDE and DISMISSED. The remaining findings of guilty are
AFFIRMED.

       We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986). Appellant’s affirmed offenses are of the type that this
court has the experience and familiarity with to reliably determine what sentence the
military judge would have imposed absent appellant’s conviction for adultery. The
gravamen of appellant’s misconduct is his repeated sexual assault of his minor step-
daughter, SA, resulting in him fathering SA’s child. For the sexual assaults and
sodomy of SA alone, appellant’s maximum punishment was eighty years of
confinement. Additionally, appellant remains convicted of another specification of
adultery and failure to obey a lawful order from his company commander. We find
the dismissal of appellant’s conviction for adultery with SH, an offense carrying a
maximum punishment of one year of confinement, does not constitute a dramatic
change in the penalty landscape. We are confident the military judge would have
adjudged a sentence at least as severe as the approved sentence absent appellant’s
conviction for adultery with SH. Accordingly, we AFFIRM the approved sentence.

       All rights, privileges, and property of which appellant has been deprived by
virtue of that portion of the findings set aside by this decision, are ordered to be
restored. See UCMJ art. 58b(c) and 75(a).

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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


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