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

                                                          UNITED STATES, Appellee
                                                                      v.
                                                       Private E1 MATTHEW R. DAVIS
                                                        United States Army, Appellant

                                                                      ARMY 20100375

                                      Headquarters, 82d Airborne Division
                                      Gary J. Brockington, Military Judge
                          Major Jessica A. Golembiewski, Acting Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Lieutenant Colonel Katherine A.
Lehmann, JA (on brief).
For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Daniel D. Maurer, JA (on brief).

                                                                         23 May 2012
                                                                  ---------------------------------
                                                                  SUMMARY DISPOSITION
                                                                  ---------------------------------

BURTON, Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of adultery in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. * See Manual for
Courts-Martial, United States, (2008 ed.) [hereinafter MCM], Part IV, ¶ 62.b.   The
convening authority approved the adjudged sentence to a bad-conduct discharge,
restriction for thirty days, hard labor without confinement for thirty days, and
forfeiture of $1447.20 pay per month for one month.

      This case is before the court for review under Article 66, UCMJ. The
appellant contends that the evidence is legally and factually insufficient to support

                                                            
*
  Appellant was found not guilty of one specification of aggravated sexual assault
and one specification of wrongful sexual contact both in violation of Article 120,
UCMJ, 10 U.S.C. § 920 (2006 & Supp. III 2009).
DAVIS – ARMY 20100375

the panel’s findings of guilty as to Charge II and its specification because the
evidence fails to prove beyond a reasonable doubt that the alleged adultery was
prejudicial to good order and discipline or service discrediting. We concur and will
take corrective action in our decretal paragraph.

                                  BACKGROUND

      On 4 July 2009, appellant and Private (PV2) JR had both consumed alcohol
and engaged in sexual intercourse in PV2 JR’s barracks room. No one else was
present when this occurred. Appellant and PV2 JR had known each other for about
two weeks and PV2 JR was dating someone else. At the time of the sexual tryst,
appellant had been separated from his wife for some period of time and was
attempting to obtain a divorce, but was having trouble locating his wife. This one
time sexual encounter was the same event that led to the charges of aggravated
sexual assault and wrongful sexual contact of which appellant was found not guilty.

                             LAW AND DISCUSSION

      To establish guilt for adultery under Article 134, UCMJ, the government must
prove each of the following elements beyond a reasonable doubt:
      (1) That the accused wrongfully had sexual intercourse with a certain
      person;

      (2) That, at the time, the accused or the other person was married to
      someone else; and

      (3) That, under the circumstances, the conduct of the accused was to
      the prejudice of good order and discipline in the armed forces or was of
      a nature to bring discredit upon the armed forces.

MCM, Part IV, ¶ 62.b.
       Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm
only such findings of guilty . . . as it finds correct in law and fact.” In performing
our duty, we must conduct a de novo review of both the legal and factual sufficiency
of appellant’s convictions. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). The test for factual sufficiency, on the other hand, “involves a fresh,
impartial look at the evidence, giving no deference to the decision of the trial court
on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into



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DAVIS – ARMY 20100375
account the fact that the trial court saw and heard the witnesses.” Washington, 57
M.J. at 399. We direct our attention to the third element.

      To constitute an offense under the UCMJ, the adulterous conduct must
      either be directly prejudicial to good order and discipline or service
      discrediting. Adulterous conduct that is directly prejudicial includes
      conduct that has an obvious, and measurably divisive effect on unit or
      organization discipline, morale, or cohesion, or is clearly detrimental to
      the authority or stature of or respect toward a servicemember.

MCM, Part IV, ¶ 62.c.(2). Service discrediting include 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,
Part IV, ¶ 62.c.(2). Under the facts of this case, we do not find that appellant’s
conduct was prejudicial to good order and discipline or service discrediting.

                                    CONCLUSION

       The findings of guilty and the sentence are set aside. The charges are
dismissed. All rights, privileges, and property of which appellant has been deprived
by virtue of that portion of his sentence set aside by this decision are ordered
restored.


      Senior Judge JOHNSON and Judge KRAUSS concur.

                                       FOR THE COURT: 
                                       FOR THE COURT:




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




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