UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 MATTHEW R. DAVIS 

United States Army, Appellant 

ARMY 20100375 

Headquarters, 82d Airborne Division 

Gary J. Brockington, Military Judge 

Major Jessica A. Golembiewski, Acting Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Lieutenant Colonel Katherine A. 

Lehmann, JA (on brief). 

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain 

Daniel D. Maurer, JA (on brief). 

23 May 2012 

--------------------------------- 

SUMMARY DISPOSITION 

---------------------------------

BURTON, Judge: 

An enlisted panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of adultery in violation of Article 134, Uniform Code of 

Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. * See Manual for 

Courts-Martial, United States, (2008 ed.) [hereinafter MCM], Part IV, ¶ 62.b.  The 

convening authority approved the adjudged sentence to a bad-conduct discharge, 

restriction for thirty days, hard labor without confinement for thirty days, and 

forfeiture of $1447.20 pay per month for one month. 

This case is before the court for review under Article 66, UCMJ. The 

appellant contends that the evidence is legally and factually insufficient to support 

                                                           

* Appellant was found not guilty of one specification of aggravated sexual assault 

and one specification of wrongful sexual contact both in violation of Article 120, 

UCMJ, 10 U.S.C. § 920 (2006 & Supp. III 2009). 
DAVIS – ARMY 20100375 

2

the panel’s findings of guilty as to Charge II and its specification because the 

evidence fails to prove beyond a reasonable doubt that the alleged adultery was 

prejudicial to good order and discipline or service discrediting. We concur and will 

take corrective action in our decretal paragraph. 

BACKGROUND

On 4 July 2009, appellant and Private (PV2) JR had both consumed alcohol 

and engaged in sexual intercourse in PV2 JR’s barracks room. No one else was 

present when this occurred. Appellant and PV2 JR had known each other for about 

two weeks and PV2 JR was dating someone else. At the time of the sexual tryst, 

appellant had been separated from his wife for some period of time and was 

attempting to obtain a divorce, but was having trouble locating his wife. This one 

time sexual encounter was the same event that led to the charges of aggravated 

sexual assault and wrongful sexual contact of which appellant was found not guilty. 

LAW AND DISCUSSION 

To establish guilt for adultery under Article 134, UCMJ, the government must 

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. 

MCM, Part IV, ¶ 62.b. 

 Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm 

only such findings of guilty . . . as it finds correct in law and fact.” In performing 

our duty, we must conduct a de novo review of both the legal and factual sufficiency 

of appellant’s convictions. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 

2002). The test for legal sufficiency is “whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307, 319 (1979); United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 

2011). The test for factual sufficiency, on the other hand, “involves a fresh, 

impartial look at the evidence, giving no deference to the decision of the trial court 

on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into 
DAVIS – ARMY 20100375 

3

account the fact that the trial court saw and heard the witnesses.” Washington, 57 

M.J. at 399. We direct our attention to the third element. 

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 detrimental to 

the authority or stature of or respect toward a servicemember. 

MCM, Part IV, ¶ 62.c.(2). Service discrediting include adulterous “conduct that has 

a tendency, because of its open or notorious nature, to bring the service into 

disrepute, make it subject to public ridicule, or lower it in public esteem.” MCM, 

Part IV, ¶ 62.c.(2). Under the facts of this case, we do not find that appellant’s 

conduct was prejudicial to good order and discipline or service discrediting. 

CONCLUSION 

The findings of guilty and the sentence are set aside. The charges are 

dismissed. All rights, privileges, and property of which appellant has been deprived 

by virtue of that portion of his sentence set aside by this decision are ordered 

restored. 

Senior Judge JOHNSON and Judge KRAUSS concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                         

Clerk of Court

FOR THE COURT: