              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                            No. ACM 38470 (rem)
                          ________________________

                            UNITED STATES
                                   Appellee
                                      v.
                             Sean J. CHERO
                       Senior Airman, USAF, Appellant
                          ________________________

          Appeal from the United States Air Force Trial Judiciary
                             On Remand from
          the United States Court of Appeals for the Armed Forces
                           Decided 9 January 2017
                          ________________________

                 Military Judge: Christopher M. Schumann.
Approved sentence: Dishonorable discharge, confinement for 3 years, forfeiture
of all pay and allowances, reduction to E-1, and a reprimand. Sentence ad-
judged 22 June 2013 by GCM convened at Fairchild Air Force Base, Washing-
ton.
For Appellant: Major Christopher D. James, USAF.
For Appellee: Major Mary Ellen Payne, USAF; and Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Chief Judge DREW delivered the opinion of the Court, in which Senior Judge
BROWN and Judge MINK joined.
                          ________________________

               PUBLISHED OPINION OF THE COURT
                          ________________________

DREW, Chief Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his plea, of sexual assault by engaging in sexual intercourse with a
                      United States v. Chero, No. ACM 38470 (rem)


person he knew or reasonably should have known was unconscious or other-
wise unaware that the sexual act was occurring, in violation of Article
120(b)(2), UCMJ, 10 U.S.C. § 920(b)(2). 1 The adjudged and approved sentence
was a dishonorable discharge, confinement for three years, forfeiture of all pay
and allowances, reduction to E-1, and a reprimand.
   In Appellant’s initial appeal to this court, we affirmed the findings and sen-
tence. United States v. Chero, ACM 38470 (A.F. Ct. Crim. App. 28 Apr. 2015)
(unpub. op.). 2 Our superior court, the United States Court of Appeals for the
Armed Forces (CAAF), granted review on the issue of whether the military
judge abused his discretion when he concluded Appellant’s maximum punish-
ment was a dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 30 years. United States v. Chero, 75 M.J. 20 (C.A.A.F. 2016).
The CAAF affirmed our decision as to the findings but reversed as to the sen-
tence and remanded the case to this court for further consideration in light of
United States v. Busch, 75 M.J. 87 (C.A.A.F. 2016). United States v. Chero, 75
M.J. 315 (C.A.A.F. 2016).
    The error raised by Appellant in this remand is: Whether the military judge
violated the Ex Post Facto Clause, 3 and if not, did he err when he concluded
Appellant’s maximum punishment was 30 years confinement, total forfeitures
and a dishonorable discharge? We hold that the military judge did not violate
the Ex Post Facto Clause. We further hold that, although he relied on an erro-
neous analysis of Rule for Courts-Martial (R.C.M.) 1003(c)(1), the military
judge determined the correct maximum punishment. Finding no prejudice
from the error, we affirm Appellant’s sentence.


1Because the offense occurred on or about 25 November 2012, Appellant was charged
under the current version of Article 120, UCMJ, 10 U.S.C. § 920, applicable to offenses
committed on or after 28 June 2012.
2   In his initial appeal, Appellant raised the following issues:
         I. Whether the military judge erred in providing findings instructions
            that included a reference to a sleeping person as someone who cannot
            consent?
        II. Whether the evidence is legally and factually insufficient?
       III. Whether the military judge abused his discretion in determining the
            maximum sentence for the offense?
       IV. Whether Appellant was deprived of his right to speedy trial in the
           appellate review process when action occurred 121 days after the
           court-martial was completed?
3   U.S. CONST. art. I, § 9, cl. 3.




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                     United States v. Chero, No. ACM 38470 (rem)


                                        I. BACKGROUND
    This appeal is limited to the process by which the military judge deter-
mined the maximum sentence for Appellant’s offense. In the National Defense
Authorization Act for Fiscal Year 2012, 4 Congress revised the elements of what
had, since 1 October 2007, been denoted as “aggravated sexual assault,” in vi-
olation of Article 120(c), and redesignated it as simply “sexual assault” in vio-
lation of Article 120(b). The changes took effect on 28 June 2012 and applied
to all offenses committed on or after that date. 5 When Appellant violated Arti-
cle 120(b)(2) on or about 25 November 2012, the President had not yet promul-
gated a new maximum punishment for the revised offense. On 15 May 2013, a
month prior to Appellant’s trial, the President amended Part IV of the Manual
for Courts-Martial, United States (2012 ed.) (2012 MCM), subparagraph 45.e.,
to set forth the maximum punishment for sexual assault to include a dishon-
orable discharge, forfeiture of all pay and allowances, and confinement for 30
years. Exec. Order No. 13,643, 78 Fed. Reg. 29,559, 29,606 (21 May 2013).
    Prior to Appellant’s trial, the Defense filed a motion requesting the military
judge determine the maximum punishment. The Defense’s position was some-
what muddled, however, as its motion referred to multiple specifications and
several different Article 120 offenses (even though Appellant was facing a sin-
gle charge and specification) and variously argued for the jurisdictional limit
of a summary court-martial and for the maximum punishment applicable to
assault consummated by a battery at a general court-martial: a bad-conduct
discharge, total forfeitures, and confinement for six months.
    The Government’s position at trial was that when Congress, in 2012,
amended the title and text of the 2007 version of “aggravated sexual assault,”
the revised offense of “sexual assault” remained listed in Part IV of the MCM.
In the Government’s view, since Congress did not specify an interim maximum
punishment for “sexual assault” (as it had for the 2007 amendments 6 to Article
120), the modified offense retained the maximum punishment the President
had established 7 for the 2007 version of “aggravated sexual assault”: a dishon-
orable discharge, total forfeitures, and confinement for 30 years.




4   Pub. L. No. 112-81, § 541(a)(3), 125 Stat. 1298, 1405 (2011).
5   Id., § 541(f), 125 Stat. at 1411.
6In the National Defense Authorization Act for Fiscal Year 2006, which substantially
modified Article 120 to take effect on 1 October 2007, Congress established interim
maximum punishments “[u]ntil the President otherwise provides pursuant to [Article
56, UCMJ].” Pub. L. No. 109-163, § 552(b), 119 Stat. 3136, 3263 (2006).
7   Exec. Order No. 13,447, 72 Fed. Reg. 56,179, 56,214 (2 Oct. 2007).


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                     United States v. Chero, No. ACM 38470 (rem)


    The military judge analyzed the issue with reference to R.C.M.
1003(c)(1)(A) and agreed with the Government that Appellant’s offense of “sex-
ual assault” was an offense listed in Part IV of the MCM, but disagreed with
the Government that Part IV provided for a maximum punishment for the of-
fense. Finding no further guidance in R.C.M. 1003(c)(1)(A), the military judge
determined that Article 18, UCMJ, 10 U.S.C. § 818, authorized the court-mar-
tial to impose a sentence up to and including life without parole, but acknowl-
edged that Article 56, UCMJ, 10 U.S.C. § 856, constrained the court-martial to
such limits as the President may prescribe for that offense. Noting that the
2007 Article 120 “aggravated sexual assault” offense was analogous to the 2012
Article 120 “sexual assault” offense, the military judge determined that Appel-
lant was on notice that the 2007 maximum punishment applied to his offense:
a dishonorable discharge, total forfeitures, and confinement for 30 years.
                                  II. DISCUSSION
A. The Ex Post Facto Clause
    “The Constitution forbids the passage of ex post facto laws, a category that
includes [e]very law that changes the punishment, and inflicts a greater pun-
ishment, than the law annexed to the crime, when committed.” Peugh v. United
States, 133 S. Ct. 2072, 2077–78 (2013) (alteration in original) (internal quota-
tion marks and citation omitted). “We review questions of constitutional law
de novo. If a constitutional error is found, whether it is harmless beyond a rea-
sonable doubt is also reviewed de novo. An increase in the maximum sentence
to confinement authorized for a crime would clearly be ex post facto legislation.”
Busch, 75 M.J. at 91 (citations and internal quotations omitted).
    The Government contends that the Ex Post Facto Clause issue is outside
the scope of the CAAF’s remand. Appellant did not specifically raise the Ex
Post Facto Clause in his original appeal to this court or to the CAAF. “While
appellant is entitled to plenary review under Article 66, . . . he is only entitled
to one such review.” United States v. Smith, 41 M.J. 385, 386 (C.A.A.F. 1995).
This court in acting on a remand “can only take action that conforms to the
limitations and conditions prescribed by the remand.” United States v. Montes-
inos, 28 M.J. 38, 44 (C.M.A. 1989). In this case, the CAAF’s remand directed
this court to reconsider the sentence in light of its Busch decision. The sole
issue the CAAF granted in Busch was whether the Ex Post Facto Clause was
violated. 8 Accordingly, we conclude that the Ex Post Facto Clause issue is
within the scope of the CAAF’s remand to this court.
    The legal issues in Busch are similar to those in the instant case. The ap-
pellant there was convicted of an Article 120b offense (sexual abuse of a child)


8   75 M.J. at 89 n.2.


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                 United States v. Chero, No. ACM 38470 (rem)


that, like the Article 120 offense in this case, was changed by Congress in 2012.
Like Appellant here, Airman First Class Busch committed his offense after
Congress amended the UCMJ but before the President promulgated the new
maximum punishment in Exec. Order No 13,643. In Busch, the military judge
referenced the executive order in his initial discussion with counsel but ulti-
mately based his maximum punishment decision on R.C.M. 1003(c)(1)(B)(i).
    In this case, the military judge similarly discussed the then recently re-
leased 2013 executive order. For example, in paragraph 12 of the military
judge’s written ruling, which he read into the record, he stated that “the Court
need not decide as a matter of law whether the President’s order applies retro-
actively.” Nevertheless, the military judge, like the military judge in Busch,
did not apply the 2013 executive order in determining the maximum punish-
ment. He instead based it on what he ascertained to be a default sentence of
confinement for life without the possibility of parole, which he then reduced,
by invoking the rule of lenity and notice, to the punishment the President had
established for the 2007 analogous offense of aggravated sexual assault.
   As we conclude that the military judge did not rely on the 2013 Executive
Order in determining the maximum punishment, we necessarily find that the
military judge did not violate the Ex Post Facto Clause. 9
B. R.C.M. 1003(c)(1) – Offense-Based Maximum Punishments
    The maximum punishment authorized for an offense is a question of law,
which we review de novo. United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011).
The Constitution vests Congress with the power to “make Rules for the Gov-
ernment and Regulation of the land and naval Forces.” U.S. CONST. art. I, § 8,
cl. 14. Congress properly delegated to the President, as Commander in Chief
of the Armed Forces, the authority to prescribe the Rules for Courts-Martial in
Article 36, UCMJ, 10 U.S.C. § 836, and the authority to establish the maximum
punishments for violations of the UCMJ, up to and including the death pen-
alty, in Articles 18 and 56, UCMJ, 10 U.S.C. §§ 818, 856. See Loving v. United


9 Had the military judge been correct that the maximum punishment for sexual assault
was confinement for life without the possibility of parole and then applied the 2013
Executive Order to reduce that maximum punishment, such an application of an after-
the-fact change to the maximum punishment would not have violated the Ex Post
Facto Clause, as it would not have increased the potential penalty Appellant faced.
See, e.g., Exec. Order 12,473, 49 Fed. Reg. 17,152, 17,152 (23 Apr. 1984) (“Provided
further, That the maximum punishment for an offense committed prior to August 1,
1984, for which a sentence is adjudged on or after August 1, 1984, if the maximum
punishment authorized in this Manual is less than that previously authorized, the
lesser maximum authorized punishment shall apply . . . .). See generally Collins v.
Youngblood, 497 U.S. 37 (1990) (after-the-fact procedural change that reduces a sen-
tence does not violate the Ex Post Facto Clause).


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                United States v. Chero, No. ACM 38470 (rem)


States, 517 U.S. 748, 768 (1996) (finding that Congress delegated to the Presi-
dent the authority to designate death penalty aggravating factors). The Presi-
dent has exercised his delegated authority in R.C.M. 1003:
       (c) Limits on punishments.
          (1) Based on offenses.
              (A) Offenses listed in Part IV.
                  (i) Maximum punishment. The maximum limits for
       the authorized punishments of confinement, forfeitures and pu-
       nitive discharge (if any) are set forth for each offense listed in
       Part IV of [the MCM].
                  ....
              (B) Offenses not listed in Part IV.
                   (i) Included or related offenses. For an offense not
       listed in Part IV of [the MCM] which is included in or closely
       related to an offense listed therein the maximum punishment
       shall be that of the offense listed; however if an offense not listed
       is included in a listed offense, and is closely related to another
       or is equally closely related to two or more listed offenses, the
       maximum punishment shall be the same as the least severe of
       the listed offenses.
                   (ii) Not included or related offenses. An offense not
       listed in Part IV and not included in or closely related to any
       offense listed therein is punishable as authorized by the United
       States Code, or as authorized by the custom of the service. When
       the United States Code provides for confinement for a specified
       period or not more than a specified period the maximum punish-
       ment by court-martial shall include confinement for that period.
       If the period is 1 year or longer, the maximum punishment by
       court-martial also includes a dishonorable discharge and forfei-
       ture of all pay and allowances; if 6 months or more, a bad-con-
       duct discharge and forfeiture of all pay and allowances; if less
       than 6 months, forfeiture of two-thirds pay per month for the
       authorized period of confinement.
   1. “Listed” or “Not Listed” in 2012 MCM, Part IV
    The MCM—an executive document promulgated by the President pursuant
to his Article 36 rule-making authority—consists of the Preamble (Part I), the
Rules for Courts-Martial (Part II), the Military Rules of Evidence (Part III),
the Punitive Articles (Part IV), and Nonjudicial Punishment Procedures (Part
V). The President makes changes to the MCM by issuing an executive order.

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                 United States v. Chero, No. ACM 38470 (rem)


See, e.g., Exec. Order No. 12,473, 49 Fed. Reg. 17,152 (23 Apr. 1984) (promul-
gating the 1984 MCM). Published in conjunction with the MCM are a number
of supplemental materials:
           The Department of Defense, in conjunction with the Depart-
       ment of Homeland Security, publishes supplementary materials
       to accompany the Manual for Courts-Martial. These materials
       consist of a Preface, a Table of Contents, Discussions, Appen-
       dices, and an Index. These supplementary materials do not have
       the force of law.
          ....
          The Department of Defense Joint Service Committee (JSC)
       on Military Justice reviews the Manual for Courts-Martial and
       proposes amendments to the Department of Defense (DoD) for
       consideration by the President on an annual basis.
Exec. Order No. 13,740, 81 Fed. Reg. 65,175, 65,176–77 (22 Sep. 2016) (empha-
sis added).
    When the JSC proposes changes to the MCM, it prepares a proposed exec-
utive order (PEO). “The PEO must include the parts of the MCM that are prom-
ulgated by the President (Parts I-V) and may include MCM parts that do not
require Presidential promulgation (Table of Contents, Discussions, Analyses,
Appendices, and the Index).” Standard Operating Procedures for the Joint Ser-
vice Committee on Military Justice, ¶ 6.1.1 (11 Mar. 2015) (emphasis added),
available at: http://jsc.defense.gov/Military-Law/Sources-of-Military-Law/.
    From 1984 through 1994, the MCM consisted of loose-leaf pages in a special
3-ring binder. Updates were made by page changes that were printed annually
and distributed to military legal offices worldwide, which posted the pages to
their MCM binders. Starting with the 1994 edition, the Department of Defense
decided to replace the loose-leaf MCM with a fully bound version. The plan was
to publish an updated bound version each year in keeping with the previous
page update schedule and, according to plan, in 1995 a new bound edition was
released. However, fiscal, personnel, and bureaucratic realities soon overcame
this best-laid plan. The expected 1996 edition slipped to 1998 and the next
edition did not reach the field until 2000. By the time the 2002 edition was
released, military justice practitioners had largely settled into an anticipated
every-other-year publication schedule; but then the next edition was not re-
leased until 2005. Another three years would lapse before the 2008 edition,
which was seriously late to need, given the complete overhaul of Article 120 by
the 2006 National Defense Authorization Act, which had taken effect in 2007.




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                United States v. Chero, No. ACM 38470 (rem)


    Before the publication of the 2008 MCM, the President issued Executive
Order No. 13,447, incorporating the 2007 amendments to Article 120 and com-
pletely revising Part IV, paragraph 45. 72 Fed. Reg. 56,179. The JSC created
a new Appendix 27 in the 2008 MCM containing the previous version of para-
graph 45, along with the following note:
           The punitive articles contained in this appendix were re-
       placed or superseded by changes to Article 120, Uniform Code of
       Military Justice, contained in the National Defense Authoriza-
       tion Act for 2006. The effective date of the new Article 120 pro-
       vision was 1 October 2007. Offenses occurring prior to this effec-
       tive date must be charged under the former provisions of Article
       120 or Article 134, which are listed below:
2008 MCM, app. 23 at A23-1.
    The amount of work involved in drafting, internally coordinating among
the military services, externally coordinating through multiple other executive
agencies, and finally in securing presidential signature to an executive order
should not be underestimated. That, coupled with the significant expense in
publishing thousands of bound copies of a roughly 900 page book, placed huge
strains on the JSC in carrying out its duties. By the time Congress revised
Article 120 once again in 2012, the 2008 MCM had become so seriously out-
dated that the JSC chose not to wait for the President to issue an executive
order before it published a new MCM. See generally Chris Kennebeck, The
Joint Service Committee on Military Justice (JSC) – Part I, NAT’L INST. OF
MILITARY JUSTICE BLOG (19 Jun. 2012), http://www.caaflog.com/2012/06/19
/the-joint-service-committee-on-military-justice-jsc -part-i/.
    “The authority to revise the Manual, an Executive Order, is vested in a
single individual, the President.” United States v. Tualla, 52 M.J. 228, 231
(C.A.A.F. 2000). The JSC recognized the President’s exclusive authority in Part
IV, paragraph 60, of the 2012 MCM:
          (6) Drafting specifications for Article 134 offenses.
               (a) In general. A specification alleging a violation of Arti-
       cle 134 need not expressly allege that the conduct was “a disor-
       der or neglect,” that it was “of a nature to bring discredit upon
       the armed forces,” or that it constituted “a crime or offense not
       capital.” The same conduct may constitute a disorder or neglect
       to the prejudice of good order and discipline in the armed forces
       and at the same time be of a nature to bring discredit upon the
       armed forces.




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                 United States v. Chero, No. ACM 38470 (rem)


                                  Discussion
       The first sentence in paragraph 60c(6)(a) above is inaccurate, as
       set forth in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
       See also United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012).
       Amending subparagraph (6)(a) requires an Executive Or-
       der, hence the strikethrough font.
2012 MCM, pt IV, ¶ 60.c.(6)(a) & Discussion (strikeout in original; emphasis
added).
    However, despite the JSC’s recognition of its limited authority, on its own
initiative it purported to move the previous presidentially-approved language
from Part IV, paragraph 45 (Article 120‒Rape, sexual assault, and other sexual
misconduct), to a new Appendix 28. The JSC also purportedly replaced the pre-
vious language with a new paragraph 45 (Article 120‒Rape and sexual assault
generally) that contained a single subparagraph, 45.a., with the congression-
ally–revised UCMJ text, along with the following notes:
          Note: This statute applies to offenses committed on or after
       28 June 2012. Previous versions of Article 120 are located as fol-
       lows: for offenses committed on or before 30 September 2007, see
       Appendix 27; for offenses committed during the period 1 October
       2007 through 27 June 2012, see Appendix 28.
       a. Text of statute.
          [Text of 10 U.S.C. § 920.]
           Note: The subparagraphs that would normally address ele-
       ments, explanation, lesser included offenses, maximum punish-
       ments, and sample specifications are generated under the Pres-
       ident’s authority to prescribe rules pursuant to Article 36. At the
       time of publishing this MCM, the President had not prescribed
       such rules for this version of Article 120. Practitioners should
       refer to the appropriate statutory language and, to the extent
       practicable, use Appendix 28 as a guide.
2012 MCM, pt IV, ¶ 45.
    If, notwithstanding the absence of an executive order, the JSC was none-
theless authorized by the President to make the changes it did to Part IV of
the 2012 MCM, then the JSC’s reference to Appendix 28 in its editorial notes
before and after the text of the statute in paragraph 45.a. had the effect of
incorporating by reference the 2007 version of Article 120 back into Part IV.
Since the publication of the 2008 MCM, sexual offenses committed prior to 1
October 2007 but tried thereafter have been prosecuted based on the version
of the UCMJ and MCM (including maximum punishments) in Appendix 27.


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                 United States v. Chero, No. ACM 38470 (rem)


See, e.g., Ballan, 71 M.J. at 30 nn.1, 2 (appellant properly tried, convicted, and
sentenced in 2009 for offenses occurring under 2006 version of UCMJ and
MCM located in Appendix 27 of the 2008 MCM); United States v. Goings, 72
M.J. 202 (C.A.A.F. 2013) (appellant properly tried, convicted, and sentenced
after 1 October 2007 for offenses occurring prior to 1 October 2007 under the
2006 version of UCMJ and MCM in Appendix 27 of the 2008 MCM). The prior
offenses continued to be prosecutable, even after Congress amended the UCMJ
and the President amended the MCM. See 1 U.S.C. § 109 (2012):
       The repeal of any statute shall not have the effect to release or
       extinguish any penalty, forfeiture, or liability incurred under
       such statute, unless the repealing Act shall so expressly provide,
       and such statute shall be treated as still remaining in force for
       the purpose of sustaining any proper action or prosecution for
       the enforcement of such penalty, forfeiture, or liability.
Cf. Busch, 75 M.J. at 95 (Stucky, J. dissenting) (“Here the repealing act did not
expressly provide for extinguishing the offense of indecent liberty with a
child. . . . Thus, the offense still had the force of law for conduct committed
before its repeal.” (citing National Defense Authorization Act for Fiscal Year
2012)).
    Unless the President expressly makes retroactive a reduction in the maxi-
mum punishment for an offense committed prior to the effective date of the
President’s action, the maximum punishment in effect at the time an offense
was committed continues to apply. 10 Contrast Exec. Order No. 12,473, 49 Fed.
Reg. 17,152 (23 Apr. 1984) (“[F]or offenses committed prior to August 1, 1984,
for which a sentence is adjudged on or after August 1, 1984, if the maximum
punishment authorized in this Manual is less than that previously authorized,
the lesser maximum authorized punishment shall apply . . . .”); and Exec. Or-
der No. 13,262, 67 Fed. Reg. 18,773, 18,779 (17 Apr. 2002) (“[F]or offenses com-
mitted prior to May 15, 2002, for which a sentence is adjudged on or after May
15, 2002, if the maximum punishment authorized in this Manual is less than
that previously authorized, the lesser maximum authorized punishment shall
apply.”), with Exec. Order No. 13,140, 64 Fed. Reg. 55,115, 55,120 (12 Oct.
1999) (“The maximum punishment for an offense committed prior to 1 Novem-
ber 1999, shall not exceed the applicable maximum in effect at the time of the
commission of such offense.”). But cf. Exec. Order No. 13,447, 72 Fed. Reg. at




10The President could not make retroactive an increase in the maximum punishment
without violating the Ex Post Facto Clause.




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                 United States v. Chero, No. ACM 38470 (rem)


56,179 (amending MCM to incorporate 2007 changes to Article 120 without
reference to modifying previously applicable maximum punishments). 11
    On 15 May 2013, when the President issued Exec. Order No. 13,643, prom-
ulgating the maximum punishments for the Article 120 offenses that had be-
come effective on 28 June 2012, he did so acknowledging, sub silentio, the re-
vised statutory text that the JSC had inserted into paragraph 45(a).
    We therefore hold that, as of 15 May 2013, the President approved the
JSC’s previously ultra vires act in moving the 2007 version of Article 120 to
Appendix 28 and authorized the listing of the 2012 version of Article 120 in
Part IV of the MCM. Prior to 15 May 2013, however, the JSC’s purported ef-
forts to remove the 2007 version of Article 120 from Part IV of the MCM were
without effect and the older version of Article 120 remained within Part IV.
Accordingly, on or about 25 November 2012, when Appellant committed a vio-
lation of Article 120(b)(2) (2012), that offense was not yet listed in Part IV of
the MCM. 12 Instead, the offense of aggravated sexual assault, a violation of
Article 120(c)(2) (2007), remained listed in Part IV of the MCM.
     2. R.C.M. 1003(c)(1)(B) – Offenses Not Listed in Part IV
   Because Appellant’s offense was not listed in Part IV, R.C.M. 1003(c)(1)(B)
determines the maximum punishment. In applying that Rule, we must deter-
mine whether Appellant’s offense is included or closely related to an offense
that is listed in Part IV, in which case we look to R.C.M. 1003(c)(1)(B)(i); or
not, in which case we look to R.C.M. 1003(c)(1)(B)(ii).
        a. R.C.M. 1003(c)(1)(B)(i) – Included or related offenses
   When Congress modified Article 120 in 2012, it based what became “sexual
assault” on what had previously been designated as “aggravated sexual as-
sault” in the 2007 version of Article 120. The analysis of Part IV, paragraph


11Since the publication of the 1984 MCM—and until the 2008 MCM—the President
had always expressly indicated whether previous maximum punishments were re-
tained or amended whenever he reduced a maximum punishment for an existing of-
fense. He did not do so whenever an executive order established only new or newly
revised offenses, and in 2005, in Exec. Order No. 13,387, 3 C.F.R. 178 (2006), he did
not do so when he increased the maximum punishment for communicating a threat or
hoax to conform with the federal criminal statute upon which the offense was based.
However, in the case of new offenses and increased maximum punishments, the Pres-
ident could not have applied the changes retroactively without violating the Ex Post
Facto Clause. The President has not specifically addressed the viability of previous
maximum punishments in amendments to the 2008 MCM and thereafter.
12 Even though the offense was not yet listed in Part IV (an executive document), it
was a violation of the UCMJ (a statute) and Appellant was properly tried and convicted
of a violation of Article 120(b)(2) (2012).


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                  United States v. Chero, No. ACM 38470 (rem)


45, strongly supports the position that sexual assault (2012) is closely related
to aggravated sexual assault (2007):
            Sexual Assault: The offense is renamed “Sexual Assault”
        from “Aggravated Sexual Assault” in the 2007 version because
        the term “aggravated” led to confusion due to the fact that there
        was no sexual act offense of lesser severity. The definition of sex-
        ual assault by causing bodily harm was clarified to note that any
        sexual act or contact without consent constitutes bodily
        harm. . . . The new statute also clarifies previously confusing
        language from the 2007 version regarding the state of a victim’s
        consciousness by prohibiting a sexual act with a person who the
        accused knows or reasonably should know is sleeping, uncon-
        scious, or otherwise unaware that the sexual act is occurring.
2012 MCM, app. 23 at A23-15.
    Comparing the elements of Appellant’s offense with that of aggravated sex-
ual assault (2007) lends further support to the notion that the charged offense
is closely related to the 2007 offense. Both versions define the offense as the
commission of a sexual act with or upon another person who is incapacitated,
unaware, or incapable of consenting or decline participation in the sexual act.
Both versions define “sexual act” as including “contact between the penis and
the vulva, . . . contact involving the penis occurs upon penetration, however
slight.” Compare 10 U.S.C. § 920(t)(1)(A) (2007) with 10 U.S.C. § 920(g)(1)(A)
(2012). 13
    We hold that for purposes of R.C.M. 1003(c)(1)(B), Appellant’s offense is
closely related to the offense of aggravated sexual assault, a violation of Article
120(c)(2) (2007), an offense listed in Part IV. The maximum punishment for a
violation of Article 120(c)(2) (2007) was a dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 30 years. 2008 MCM, pt. IV, ¶
45.f.(2) Consequently, in accordance with R.C.M. 1003(c)(1)(B)(i), the maxi-
mum punishment for Appellant’s offense is a dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 30 years.
        b. R.C.M. 1003(c)(1)(B)(ii) – Not included or related offenses
  Assuming, arguendo, that for purpose of R.C.M. 1003(c)(1), the JSC’s act in
moving paragraph 45 from Part IV in the 2008 MCM to Appendix 28 in the

13 The 2012 UCMJ also added the penetration of the anus or mouth by the penis to the
definition of “sexual act.” However, Appellant was charged with committing a sexual
act, to wit, sexual intercourse. The military judge defined “sexual act” as “the penetra-
tion, however slight, of the vulva by the penis.” app. Ex. LV, p. 1; R. at 837.




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                  United States v. Chero, No. ACM 38470 (rem)


2012 MCM both (1) removed aggravated sexual assault (2007) from Part IV
and (2) did not incorporate it by reference back into Part IV, then aggravated
sexual assault (2007) would no longer be “listed in Part IV.” In that event, the
maximum punishment for sexual assault (2012) would be determined by refer-
ring to the United States Code or the custom of the service. Under either sce-
nario in the facts of this case, Appellant would not have been prejudiced. 14
           i) Punishable as authorized by the United States Code
    Unlike the offense in Busch (sexual abuse of a child), Article 120(b)(2), sex-
ual assault upon a person who is unconscious or otherwise unaware, is analo-
gous to an offense punishable by the United States Code, specifically, “sexual
abuse,” a violation of 18 U.S.C. § 2242(2). The statutory elements of Article
120(b)(2) (2012) and § 2242(2) are strikingly similar. Both statutes define “sex-
ual act” as including contact between the penis and the vulva, penis and the
anus, and penis and the mouth; contact involving the penis and the vulva or
anus occurs upon penetration, however slight. Compare 18 U.S.C. § 920(b)(1)
with 10 U.S.C. § 2246(2)(A)–(B). Both statutes require knowingly engaging in
a sexual act with another person who is unconscious or otherwise unaware or
incapable of appraising the nature of the sexual act. Compare 18 U.S.C. § 2242
with 10 U.S.C. § 920(b)(1). The similarities are by design. The 2007 amend-
ments to Article 120, including aggravated sexual assault, were based on the
Sexual Abuse Act of 1986, 18 U.S.C. §§ 2241–245. 2008 MCM, app. 23 at A23-
15.
    However, unlike the federal criminal statute, neither aggravated sexual
assault (2007) nor sexual assault (2012) include the federal jurisdictional ele-
ment. Nevertheless, the criminal conduct and mens rea set forth in Appellant’s
specification essentially describes the gravamen of the offense criminalized by
§ 2242(2). Moreover, the jurisdictional element of § 2242 is not applicable to
the analogous offense in the military context and its absence in the military
specification is irrelevant to determining the maximum punishment under
R.C.M. 1003(c)(1)(B)(ii). United States v. Leonard, 64 M.J. 381, 385 (C.A.A.F.
2007) (Baker, J., concurring).
  The maximum punishment authorized by 18 U.S.C. § 2242(2) is confine-
ment for life. Applying R.C.M. 1003(c)(1)(B)(ii), the maximum punishment


14Given our holding and the absence of prejudice resulting from either alternative, we
need not decide whether the federal criminal statute or the custom of the service would
have taken precedence. However, in another case, it would seem that the more specific
custom of the service should prevail over the more general analogous federal criminal
statute under the canon of textual construction, generalia specialibus non derogant.
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 183 (2012).


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                 United States v. Chero, No. ACM 38470 (rem)


would also include a dishonorable discharge and forfeiture of all pay and al-
lowances. As this maximum punishment is greater than that determined by
the military judge, a substantial right of Appellant would not have been prej-
udiced if his maximum punishment should have been as authorized by the
United States Code.
           ii) Punishable as authorized by the custom of the service
    The custom of the service would also dictate the same maximum punish-
ment as was used in this case. The offense of aggravated sexual assault is a
violation of Article 120(c)(2) (2007) for conduct committed during the four and
a half year period from 1 October 2007 through 27 June 2012. The offense has
been prosecuted by court-martial for the last nine years and, absent affirma-
tive action by Congress or the President, will continue to be subject to military
prosecution well into 2017, subject to the five year statute of limitations for
aggravated sexual assault. Article 43, UCMJ, 10 U.S.C. § 843. While infre-
quent since Congress first authorized the President to prescribe maximum
punishments for military offenses in the statute of September 27, 1890, the
customs of the service have nevertheless formed the basis for determining the
kind and degree of court-martial punishments. WILLIAM WINTHROP, MILITARY
LAW AND PRECEDENTS 42 n.4 (Gov’t Printing Office reprint 1920) (2d ed. 1896),
available at https://www.loc.gov/rr/frd/Military_Law/ML_precedents.html.
    Prior to 1 October 2007, knowingly committing sexual acts upon an uncon-
scious or otherwise unaware person would have been chargeable as rape under
the UCMJ and Articles of War and would carry with it a maximum punishment
of a dishonorable discharge, forfeiture of all pay and allowances, confinement
for life with or without the possibility of parole, and, if constitutionally permit-
ted, death. 2005 MCM, app. 23, ¶ 45.e; National Forces Act of 1863, ch. 75, §
30, 12 Stat. 731, 736 (1863); WINTHROP at 666–67, 677–78. The nine years of
court-martial practice since then in charging and penalizing the offense is a
sufficient time to create a custom of the service as to the lesser authorized
maximum punishment of a dishonorable discharge, forfeiture of all pay and
allowances, confinement for 30 years. Busch, 75 M.J. at 93 (seven years is suf-
ficient to create a custom of the service under R.C.M. 1003(c)(1)(B)(ii)).
                                III. CONCLUSION
   The military judge did not err when he determined that the maximum pun-
ishment was a dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 30 years, even though he used the wrong analysis to come to
that conclusion. A proper application of R.C.M. 1003(c)(1)(B)(i) reaches the
same result.
    Upon further consideration in light of Busch, 75 M.J. 87, the sentence is
correct in law and fact, and no error materially prejudicial to the substantial


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               United States v. Chero, No. ACM 38470 (rem)


rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c). Accordingly, the approved sentence is AFFIRMED.


               FOR THE COURT



               KURT J. BRUBAKER
               Clerk of Court




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