UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                            Sergeant DUANE R. JAMES
                           United States Army, Appellant

                                   ARMY 20140872

                             Headquarters, 8th Army
                         Mark A. Bridges, Military Judge
    Lieutenant Colonel Scott D. Walters, Acting Staff Judge Advocate (pretrial)
           Colonel Craig A. Meredith, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Joshua G. Grubaugh, JA (on brief); Captain Heather L. Tregle,
JA; Captain Joshua G. Grubaugh, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).


                                      29 July 2016

                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------
Per Curiam:

       A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of a specification of adultery in violation
of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2012)
[hereinafter UCMJ] 1. The court sentenced appellant to a bad-conduct discharge. The
convening authority approved the sentence as adjudged.




1
  Consistent with his pleas, appellant was found not guilty of rape and sexual assault
in violation of Article 120, 10 U.S.C. § 920 (2012).
JAMES—ARMY 20140872

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant counsel raises six errors, one of which merits discussion and relief. 2 After
review of the entire record, we are not convinced beyond a reasonable doubt as to
the factual sufficiency of the evidence for the adultery charge. We are not
convinced beyond a reasonable doubt that appellant was married on or about 14
December 2013.

                               LAW AND ANALYSIS

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

      The Specification of Charge II alleged that on or about 14 December 2013,
appellant, a married man, wrongfully had sexual intercourse with Specialist (SPC)
JM, a woman not his wife, and that said conduct was to the prejudice of good order
and discipline in the armed forces. Specialist JM testified that she and appellant had
sexual intercourse on several occasions to include 14 December 2013. Appellant is
only charged with the sexual intercourse on or about 14 December 2013. The only
evidence elicited on findings in reference to appellant’s marital status is the
following:

      TC: Were you aware or did you know that the accused was married?

      SPC JM: No, sir.

      TC: Did you ever find out he was?




2
 By addressing this issue, the remaining issues are moot. We have also reviewed
those matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and they are moot as a result of the relief granted.

                                           2
JAMES—ARMY 20140872

      SPC JM: I did when I was at the Urgent Care Clinic. 3

No further information is provided as to when the appellant was married or whether
or not appellant was married on 14 December 2013. Sentencing evidence reflected
that appellant was married in August 2011. Though evidence presented during
findings may be considered for sentencing, the reverse does not apply. See
generally United States v. Frey, 73 M.J. 245 (C.A.A.F. 2013) and United States v.
Beatty, 64 M.J. 456 (C.A.A.F. 2007).

                                   CONCLUSION

      Having completed our review and in consideration of the entire record, the
findings of guilty and the sentence are set aside. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by this decision are ordered restored. See UCMJ arts. 58a(b)
58b(c), and 75(a).


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




3
 The evidence shows that SPC JDM went to the Urgent Care Clinic on 15 December
2013.
                                      3
