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

                           UNITED STATES, Appellee
                                        v.
                   Staff Sergeant ROBERT L. McCULLOUGH
                          United States Army, Appellant

                                     ARMY 20090206

           Headquarters, Joint Readiness Training Center and Fort Polk
                          Charles Hayes, Military Judge
    Lieutenant Colonel Paula Schasberger, Acting Staff Judge Advocate (pretrial
                               & recommendation)
             Colonel Keith C. Well, Staff Judge Advocate (addendum)


For Appellant: Frank J. Spinner, Esquire (argued); Captain Brent A. Goodwin, JA;
Frank J. Spinner, Esquire (on brief).

For Appellee: Major Adam S. Kazin, JA (argued); Colonel Michael E. Mulligan, JA;
Major Amber J. Williams, JA; Major Adam S. Kazin, JA; Captain Ryan D. Pyles, JA
(on brief).


                                    19 December 2011
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                         SUMMARY DISPOSITION ON REMAND
                        ---------------------------------------------------
Per Curiam:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of carnal
knowledge with a person under the age of sixteen and one specification of adultery,
in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
920 and 934 (2008) [hereinafter UCMJ]. The appellant was sentenced to reduction
to the grade of E1, forfeiture of all pay and allowances, confinement for three years
and six months, and a bad-conduct discharge. The convening authority reduced the
sentence to confinement to three years and four months, and otherwise approved the
adjudged sentence. The convening authority granted appellant’s request for a six-
month waiver of forfeitures.
McCULLOUGH—ARMY 20090206

       On 7 June 2011, we issued an opinion in this case, affirming the findings of
guilty and the sentence. United States v. McCullough, ARMY 20090206 (Army Ct.
Crim. App. 7 June 2011) (unpub.). On 29 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 again before
this court for review under Article 66, UCMJ, 10 U.S.C. § 866.

                              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). Here,
appellant pleaded not guilty to the charge of adultery—in this case, the specification
does not expressly allege that appellant’s conduct was to the prejudice of good order
and discipline or of a nature to bring discredit upon the armed forces. However,
appellant did not object to the language of the adultery specification at trial. Where
a charge and specification are not challenged at trial, their language is to be liberally
construed. Roberts, __ M.J. at ___, slip op. at 4 (citing United States v. Watkins, 21
M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler, 70 M.J. at 230. This liberal rule of
interpretation is applicable even where an appellant does not plead guilty. United
States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); Roberts, __ M.J. at ___, slip op. at 5;
United States v. Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

       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
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). We hold that in this
case the Article 134 charge and specification can be so construed, and, therefore,
state the offense of adultery. Although the adultery charges at issue in Fosler and
this case are similar, the procedural posture of the parties is different. In this case,
appellant did not object at trial; therefore, his standing to challenge the charge and
specifications is circumscribed. Roberts, __ M.J. at ___, slip op. at 4. Cf. Fosler,
70 M.J. at 230.

       Facially, the language of the charge and specification in this case necessarily
implies both conduct prejudicial to good order and discipline and conduct of a nature
to bring discredit upon the armed forces by alleging that appellant wrongfully
engaged in sexual intercourse with KG, a woman not his wife, in violation of Article
134, UCMJ. In fact, KG was a thirteen-year old friend of appellant’s daughter, and
he was convicted of carnal knowledge with KG in violation of Article 120, UCMJ.



                                           2
McCULLOUGH—ARMY 20090206

Furthermore, this textual relationship of necessary implication provided appellant
with fair notice. The charge of adultery sets forth a violation of Article, 134, UCMJ,
and the specification states the date, location, and the victim of the offense. 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”). In addition, the military judge properly instructed the panel on
the terminal elements and appellant made no objection to those instructions. We
apply the presumption that the panel properly applied the military judge’s
instructions. See United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000).
Buttressed by the presumption of the defense counsel’s competence, we conclude
that appellant was not misled about the nature of the charge leveled against him.
See Manual for Courts-Martial, Part IV, paras. 60.c.(6)(a), and 62.b. Finally, the
factual allegations in the specification combined with the record of trial sufficiently
protect appellant against double jeopardy.

                                   CONCLUSION

      On consideration of the entire record and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), 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
                                         FORTHE
                                             THECOURT:
                                                COURT:



                                         JOANNE P. TETREAULT ELDRIDGE
                                         Deputy ClerkP.ofTETREAU
                                        JOANNE           Court




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