UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           TOZZI, CELTNIEKS, and BURTON
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Captain JONATHAN MARTINEZ
                         United States Army, Appellant

                                   ARMY 20150474

   Headquarters, U.S. Army Intelligence Center of Excellence and Fort Huachuca
           Timothy B. Hayes, Jr. and Michael J. Hargis, Military Judges
     Lieutenant Colonel Cory J. Young, Acting Staff Judge Advocate (pretrial)
            Colonel Joseph A. Keeler, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mary J. Bradley, JA; Lieutenant Colonel Melissa R.
Covolesky, JA; Captain Heather L. Tregle, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).


                                      29 June 2017
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                               SUMMARY DISPOSITION
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Per Curiam:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of disobeying a superior commissioned
officer, one specification of violating a lawful general regulation, and two
specifications of assault consummated by battery in violation of Articles 90, 92, and
128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 928 (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
dismissal and confinement for ninety days.

      This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigns two errors to this court. After due consideration, we find one of the
assigned errors warrants discussion and relief.
MARTINEZ—ARMY 20150474

                                   BACKGROUND

      In the Specification of Charge II, appellant was charged with violating a
lawful general regulation in violation of Article 92, UCMJ, as follows:

             SPECIFICATION: In that [appellant], U.S. Army, did, at
             or near Sierra Vista, Arizona, between on or about
             1 February 2014, and on or about 31 May 2014, violate a
             lawful general regulation, to wit: para. 4-14c(2), Army
             Regulation 600-20, dated 18 March 2008, by wrongfully
             engaging in sexual acts with Staff Sergeant [(SSG) RE].

       At trial, the military judge instructed the panel on the elements for this
specification:

                    First, that there was in existence a certain lawful
             general regulation in the following terms: Army
             Regulation 600-20, paragraph 4-14c(2), dated 18 March
             2008, which prohibits sexual relationships between
             officers and enlisted personnel except as specified therein;

                   Second, that [appellant] had a duty to obey such
             regulation; and

                    Third, that at or near Sierra Vista, Arizona, between
             on or about 1 February 2014 and 31 May 2014, [appellant]
             violated this lawful regulation by wrongfully engaging in
             sexual acts with [SSG RE].

       The military judge did not define “wrongfully” in the context of the
Article 92, UCMJ, violation. After completing instructions on the elements for the
balance of the contested specifications, * the military judge advised:

                    The evidence has raised the issue of mistake on the
             part of [appellant] concerning [SSG RE’s] status as an
             enlisted Soldier. [Appellant] is not guilty of the offense
             and The Specification of Charge II and Charge II if one,
             he mistakenly believed [SSG RE] was not an enlisted
             Soldier and two, such belief on his part was reasonable.
             To be reasonable, the belief must have been based on the
             information or lack of it which would indicate to a


*
 Charge III consisted of four specifications of assault consummated by battery in
violation of Article 128, UCMJ.

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MARTINEZ—ARMY 20150474

             reasonable person that [SSG RE] was not an enlisted
             Soldier. Additionally, the mistake cannot be based on an
             intentional or negligent failure to discover the true facts.

                   “Negligence” is the absence of due care.

                   “Due care” is what a reasonably careful person
             would do under the same or similar circumstances.

      There were no further instructions exclusively related to the Specification of
Charge II.

                             LAW AND DISCUSSION

       Appellant asserts the military judge erred by failing to instruct the panel on
the mens rea required for an Article 92, UCMJ, violation of the Army Regulation
600-20 provision that prohibits officers from engaging in sexual acts with enlisted
personnel. Specifically, appellant cites United States v. Gifford, 75 M.J. 140
(C.A.A.F. 2016), a case decided by our superior court after appellant’s court-martial
that directs the military judge to address the unstated mens rea required for a
conviction of an Article 92, UCMJ, offense. Appellant argues the military judge’s
instructions did not inform the panel of the government’s requirement to prove
beyond a reasonable doubt appellant knew or was reckless as to whether SSG RE
was an enlisted soldier when they engaged in a sexual relationship.

       In its brief, the government concedes the military judge should have
determined the proper mens rea was recklessness under Gifford, but argues language
in the military judge’s mistake of fact instruction addressing appellant’s “belief”
about SSG RE’s enlisted status implies the general intent necessary to convict for
violating Article 92, UCMJ: “Given the context of the overall message, using both
the term ‘wrongful’ and providing a mistake of fact instruction, the military judge
put the panel on notice and provided sufficient instruction to apply general intent.”
We do not agree with this rationale, considering the military judge did not define the
term “wrongful” and did not provide the mistake of fact instruction
contemporaneous with his instructions on Charge II. Concluding appellant was not
prejudiced under these circumstances is a leap we are not willing to take.

       Here, Gifford was decided after appellant’s court-martial; the military judge
did not have the benefit of our superior court’s opinion during appellant’s trial.
Nonetheless, appellant is entitled to avail himself of a “new rule” when the law
changes while his case is on direct appeal. See United States v. Harcrow, 66 M.J.
154, 160-61 (C.A.A.F. 2008) (Ryan, J., concurring). As a result, the military
judge’s findings instructions to the panel were not sufficient regarding the mens rea
required to make appellant’s violation of the lawful general regulation wrongful.
We will take appropriate action in our decretal paragraph.

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MARTINEZ—ARMY 20150474

                                  CONCLUSION

       The findings of guilty of Charge II and its Specification are set aside and
Charge II is DISMISSED. The remaining findings of guilty are AFFIRMED. We
are able to reassess the sentence on the basis of the error noted and do so after
conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in 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). Based on the entire
record and appellant’s course of conduct, we are confident the panel would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

                                          FOR THE COURT:
                                          FOR THE COURT:



                                          JOHN P. TAITT
                                          JOHN
                                          Acting P. TAITT
                                                 Clerk of Court
                                          Acting Clerk of Court




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