UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           JOHNSON, KRAUSS, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Private E2 AARON M. MITCHELL
                         United States Army, Appellant

                                     ARMY 20100713

                              1st Cavalry Division
                      Matthew J. McDonald, Military Judge
           Lieutenant Colonel Mark H. Sydenham, Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Barbara A.
Snow-Martone, JA.

For Appellee: Major Amber J. Williams, JA.


                                     28 October 2011
                       ----------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                       ----------------------------------------------------

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of absence without leave, two specifications of wrongful use
of a Schedule I controlled substance, and five specifications of wrongful making and
uttering checks, in violation of Articles 86, 112a, and 123a, Uniform Code of
Military Justice, 10 U.S.C. §§ 86, 112a, 123a (2008) [hereinafter UCMJ]. *
Appellant was also convicted, pursuant to his pleas, of one specification alleging
adultery in violation of Article 134, UCMJ. See Manual for Courts-Martial, United
States, (2008 ed.) [hereinafter MCM], Part IV, para. 62.b. The military judge
sentenced appellant to a bad-conduct discharge, confinement for seven months,


*
 Appellant was found not guilty, in accordance with his plea, of one specification
alleging wrongful possession of a Schedule II controlled substance in violation of
Article 112a, UCMJ.
MITCHELL—ARMY 20100713

forfeiture of all pay and allowances, and reduction to the grade of E1. The
convening authority approved the adjudged sentence.

       On 25 March 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 21 September 2011, our superior court
vacated our decision and returned the record of trial to the Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Consequently, appellant’s case is before this
court for a second review under Article 66, UCMJ. We have again considered the
record of trial, this time in light of our superior court’s decision in Fosler, and we
hold that the Specification of Charge IV, when liberally construed, states the offense
of adultery.

                              LAW AND DISCUSSION
       Whether a charge and specification state an offense is a question of law that is
reviewed de novo. United States v. Roberts, __ M.J. ___, slip op. at 4 (Army Ct.
Crim. App. 14 Oct. 2011). 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). In
Fosler, our superior court held that where the appellant “objected to the
specification at trial, and thereafter contested the case, an adultery charge failed to
state an offense because it did not expressly or impliedly allege the terminal
elements.” Roberts, __ M.J. ___, slip op. at 5. However, Fosler does not compel
our decision in this case. Although the adultery charges at issue in both Fosler and
this case are similar, the procedural posture of the parties is vastly different. In this
case, appellant neither objected to the adultery charge and its specification, nor did
he contest the case. Therefore, appellant’s standing to challenge the charge and
specification is circumscribed, and their language will be liberally construed.
Roberts, __ M.J. at ___, slip op. at 4. Cf. Fosler, 70 M.J. at 230. As a result, we
will not set aside the adultery charge unless it is “so obviously defective that it
could not be reasonably construed to embrace [the] terminal element.” Roberts, __
M.J. at ___, slip op. at 5; United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A.
1986).

       Here, the adultery specification states that appellant wrongfully engaged in
sexual intercourse with a woman other than his spouse in violation of Article 134,
UCMJ. These allegations can be reasonably construed to imply that appellant’s
conduct was to the prejudice of good order and discipline and of a nature to bring
discredit upon the armed forces. Furthermore, there is ample evidence in the record
that appellant was on notice of the charge against him. Appellant entered into a
pretrial agreement as well as a stipulation of fact, and pleaded guilty to this charge
with the benefit of advice from his trial defense counsel. See also MCM, 2002, Part
IV, para. 60.c.(6)(a). Furthermore, the military judge advised appellant of the
elements of adultery—to include the terminal elements—after which appellant

                                           2
MITCHELL—ARMY 20100713

described how his conduct was both prejudicial to good order and discipline and
service discrediting. Finally, the factual allegations within the charge and
specification sufficiently protect appellant against double jeopardy.

                                  CONCLUSION
       On consideration of the entire record, the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and in
light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), we find appellant’s
arguments to be without merit. We hold the findings of guilty and the sentence as
approved by the convening authority correct in law and fact. Accordingly, the
findings of guilty and the sentence are AFFIRMED.


                                      FOR THE COURT:




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




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