   UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           KERN, YOB, and ALDYKIEWICZ
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Specialist GEMAYEL A. JONES
                          United States Army, Appellant

                                  ARMY 20090900

                              Headquarters, Fort Hood
                         Matthew McDonald, Military Judge
             Colonel John W. Miller, II, Staff Judge Advocate (pretrial)
          Colonel Stuart W. Risch, Staff Judge Advocate (recommendation)
            Colonel Phillip N. Foster, Staff Judge Advocate (addendum)

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Katherine S. Gowel, JA;
Captain Kenneth W. Borgnino, JA (on brief).

                                     10 July 2012

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

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of violating a lawful order, assault
consummated by battery, interfering with a 911 emergency call, and adultery in
violation of Articles 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 892, 928, and 934 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a
bad-conduct discharge, confinement for 117 days, and reduction to the grade of E-1.
The convening authority approved the sentence as adjudged and credited appellant
with 117 days against the sentence to confinement.

       On appeal, appellant raises two assignments of error, both of which relate to
the adultery specification. The second assignment of error attacks the legal and
factual sufficiency of the finding of guilty to this specification. Because we agree
with appellant concerning this second assignment of error and set aside the adultery
specification, we need not address his first allegation.
JONES—ARMY 20090900

                             LAW AND DISCUSSION

       Under Article 66(c), UCMJ, this court considers both the legal and factual
sufficiency of the charges of which an appellant is convicted. The test for legal
sufficiency is whether, when viewed in a light most favorable to the government, a
rational fact-finder could have found all essential elements of an offense beyond a
reasonable doubt. United States v. Turner, 48 M.J. 513, 516 (Army Ct. Crim. App.
1998); (citing Jackson v. Virginia, 443 US 307 (1979)). We review for factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002)). Our test 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.” United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

       Appellant, a married man, was charged with adultery by wrongfully having
sexual intercourse with Specialist (SPC) LS, a woman not his wife. In order to find
appellant guilty of this offense under Article 134, UCMJ, the government had to
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.

Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 62.b.

       We keep in mind that the scope of adultery under the UCMJ has narrowed
over the past decade as a result of the President’s Executive Order No. 13,262. See
67 F.R. 18773, 18778 (2002); United States v. Jonsson, 67 M.J. 624, 626 (C.G. Ct.
Crim. App. 2009).

             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

                                          2
JONES—ARMY 20090900

             detrimental to the authority or stature of or respect toward
             a servicemember.

MCM, Part IV, ¶ 62.c.(2). In addition, although open and notorious conduct may be
service discrediting, wholly private conduct is not generally service discrediting.
United States v. Perez, 33 M.J. 1050, 1054 (A.C.M.R. 1991) (citing United States v.
Berry, 20 C.M.R. 325 (C.M.A. 1956)).

      In this case, we find the evidence regarding the third (terminal) element to be
both legally and factually insufficient. During the time of their sexual activity,
appellant and SPC LS were both junior enlisted soldiers. We find no evidence, nor
did the government argue at trial, that the adulterous activity between these two
soldiers had a divisive or detrimental impact on their units. Contrary to the
government’s brief, we do not find evidence in the record to indicate that SPC LS
was scheduled to deploy or that her pregnancy by appellant had any impact on her
performance of duties. The only evidence concerning appellant’s marriage and his
wife is in the form of a marriage certificate admitted by the government. Moreover,
we do not find evidence in the record that the adulterous relationship between
appellant and SPC LS was open and notorious.

                                   CONCLUSION

        For the foregoing reasons, the finding of guilty of Specification 5 of Charge
III is set aside and that specification is dismissed. The remaining findings of guilty
are affirmed. Reassessing the sentence on the basis of the error noted, the entire
record, and in accordance with the principles of United States v. Sales, 22 M.J. 305
(C.M.A. 1986) and United States v. Moffeit, 63 M.J 40 (C.A.A.F. 2006), to include
the factors identified by Judge Baker in his concurring opinion, the court affirms the
sentence.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                COURT:




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




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