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

                           UNITED STATES, Appellee
                                        v.
                     Specialist MICHAEL T. McNAUGHTON
                          United States Army, Appellant

                                    ARMY 20090596

                            Headquarters, Fort Carson
                        Debra L. Boudreau, Military Judge
                  Colonel Michael W. Meier, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Captain Michael E. Korte, JA (on brief).

For Appellee: Major Christopher B. Burgess, JA; Captain Stephen E. Latino, JA;
Captain Nathan S. Mammen, JA (on brief).


                                     13 August 2012
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                        SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of sodomy, aggravated incest, and adultery in violation of
Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 934
(2005) [hereinafter UCMJ]. * The military judge sentenced appellant to a bad-
conduct discharge, confinement for four years, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved only so much
of the sentence as provided for a bad-conduct discharge, confinement for four years,
and reduction to the grade of E-1. The convening authority deferred the automatic
*
 After arraignment and prior to plea, the military judge dismissed one specification
of violation of a lawful general regulation in violation of Article 92, UCMJ, 10
U.S.C. § 892. After pleas, the military judge dismissed two specifications of
wrongful sexual contact in violation of Article 134, UCMJ, 10 U.S.C. § 934.
McNAUGHTON—ARMY 20090596

forfeiture of all pay and allowances until action and then waived the automatic
forfeiture of all pay and allowances for a period of six months from the date of
action.

       On 26 January 2011, we issued an opinion 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). On 19 December 2011, we issued an opinion
in this case, affirming the findings of guilty and the sentence. United States v.
McNaughton, ARMY 20090596, 2011 WL 6400543 (Army Ct. Crim. App. 19 Dec.
2011) (summ. disp.). On 10 July 2012, our superior court reversed our decision as
to Specification 2 (renumbered) (alleging adultery) of Charge II (renumbered) and as
to the sentence, and returned the record of trial to The Judge Advocate General of
the Army for remand to this court for further consideration in light of United States
v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). Consequently, appellant’s case is again
before this court for review under Article 66, UCMJ.

       Much like the specification at issue in Humphries, it was plain and obvious
error for the government to fail to allege the terminal elements of Article 134,
UCMJ, in the adultery specification at issue in this case. See Humphries, 71 M.J. at
214. Nonetheless, while Specification 2 (renumbered) of Charge II (renumbered)
was defective and this defect affected appellant’s constitutional right to notice under
the Fifth and Sixth Amendments, “it does not constitute structural error subject to
automatic dismissal.” Id. at 212. Instead, we must resolve “whether the defective
specification resulted in material prejudice to [appellant’s] substantial right to
notice.” Id. at 215. To resolve this issue, we must closely review the trial record.
Id.

       Close review of the trial record in this case reveals that appellant was on
notice of the missing terminal elements. Id. at 215-16. The government called
Special Agent (SA) MW during its case-in-chief. During SA MW’s direct
examination, SA MW confirmed that one of his “essential functions” was “to help
maintain good order and discipline.” Over defense objection, the military judge
permitted SA MW to testify that he believed appellant’s actions to be “prejudicial to
good order and discipline.” Special Agent MW also testified, over defense
objection, that he considered himself a member of society and felt that appellant’s
acts brought discredit upon the armed forces. On cross-examination, SA MW
admitted that “most crimes” soldiers commit would be prejudicial to good order and
discipline and service-discrediting.

      The government also called Captain (CPT) SL during its case-in-chief.
Captain SL served as appellant’s company commander and testified that “this




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McNAUGHTON—ARMY 20090596

incident” was prejudicial to good order and discipline within his unit. The following
exchange also occurred during CPT SL’s testimony:

             Q: Is having a [s]oldier who commits adultery—does that
             cause problems with prejudice to good order and
             discipline of your unit?

             DC: Objection—leading.

             MJ: Objection sustained as to leading.

             Q: Captain [SL], I wanted to ask you, as a member of
             society, do you think that these—the things that—

             MJ: Okay. That’s not—I allowed it before, but this is not
             how this element can be proven. So objection is
             overruled—I’m sorry; objection sustained. I noted the
             defense had made one earlier and was a continuing one.

             ATC: Your Honor, . . . one of the elements of the offense
             is whether these acts were prejudicial to good order and
             discipline or whether they were service discrediting.

             MJ: Right. . . . It’s not a member of the uniformed forces
             who testifies about that. . . . It’s a member of civilian
             society, that’s the viewpoint.

             ATC: All right. Okay.

       During appellant’s case-in-chief, appellant’s defense counsel called Ms. SM
(appellant’s wife), Ms. MM (appellant’s step-daughter), Ms. MM (another step-
daughter), and Ms. CK (a family therapist). Appellant’s defense counsel asked all
four witnesses if they viewed the Army in a “lesser light” because of appellant’s acts
with Ms. MM. All four witnesses testified that they did not view the Army in a
“lesser light” because of appellant’s actions. However, on cross-examination, Ms.
CK admitted that if appellant’s acts were known by other people in society, it would
have a tendency to discredit the Army.

      After appellant presented his case-in-chief, the government indicated that it
planned to call Ms. SB (another family therapist) to elicit testimony on whether she
thought appellant’s acts were service-discrediting. The government wanted to
ensure it “covered the basis for the adultery charge.” Ultimately, the government
chose not to call Ms. SB because the military judge stated that the government had
“covered the bas[i]s” on the adultery specification.



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McNAUGHTON—ARMY 20090596

       During his findings argument, the trial counsel argued that the government
proved the terminal elements and showed appellant committed adultery. On the
other hand, appellant’s defense counsel argued in her findings argument that the
government had not satisfied the terminal elements. On rebuttal, the trial counsel
focused his argument exclusively on the terminal elements.

       Under the facts of this case, we are convinced that the record of trial
demonstrated appellant had sufficient notice of the terminal elements and the theory
of criminality pursued by the government. See Humphries, 71 M.J. at 216 (finding
that “[n]either the specification nor the record provides notice of which terminal
element or theory of criminality the Government pursued in this case”). Therefore,
appellant did not suffer prejudice from the omission of the terminal elements in
Specification 2 (renumbered) of Charge II (renumbered).

                                  CONCLUSION

      On consideration of the entire record and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), 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
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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