## UNITED STATES ARMY COUR T 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. Brockingt on, Military Judge Major Jessica A. Gole mbiewski, Acting St aff Judge Advocate

For Appellant: Colonel Patr icia 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 genera l court-martial convicted appellant, contrary to his pleas, of adultery in vi olation of Article 1 34, 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 confin ement for thirty days, and forfeiture of $1447.20 pay per month for one month.

This case is before th e court for revi ew under Articl e 66, UCMJ. The appellant contends that the evidence is le gally and factually insu fficient to support

* Appellant was found not guilty of one specification of aggravated sexual assault and one specification of wrongful sexual c ontact both in violat ion of Article 120, UCMJ, 10 U.S.C. § 920 (2 006 & Supp. III 2009).DAVIS – ARMY 20100375

2 the panel’s findings of guilty as to Ch arge II and its spec ification because the evidence fails to prove beyond a reasonab le doubt that the al leged adultery was prejudicial to go od order and discipline or service di screditing. We concur and will take corrective action in our decretal paragraph.

BACKGROUND

On 4 July 2009, appe llant and Private (PV2) JR had both consumed alcohol and engaged in sexual intercourse in PV2 JR’s barr acks 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 separate d from his wife for some period of time and was attempting to obtain a divorc e, but was having trouble lo cating his wife. This one
time sexual encounter was the same event that led to the charges of aggravated sexual assault and wrongful se xual contact of which appe llant was found not guilty.

LAW AND DISCUSSION

To establish guilt for adul tery under Articl e 134, UCMJ, the government must prove each of the following el ements beyond a reasonable doubt:

(1) That the accused wrongfully ha d sexual inte rcourse with a certain

person;

(2) That, at the time, the accused or the other person was married to someone else; and

(3) That, under th e circumstances, the conduc t of the accused was to the prejudice of g ood order and discipline in the armed forces or was of
a nature to bri ng discredit upon th e armed forces.

MCM , Part IV, ¶ 62.b.

Article 66, UCMJ, provide s that a Court of Crimin al Appeals “may affirm only such findings of guilty . . . as it find s correct in law and fa ct.” In performing our duty, we must condu ct a de novo review of both the legal and fact ual 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 viewin g the evidence in the light most favorable to the prosecution, any rational trie r of fact could have found
the essential elements of the crim e beyond a reason able 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 factua l sufficiency, on the othe r hand, “involves a fresh, impartial look at the evidence, giving no deference to th e decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take intoDAVIS – ARMY 20100375

3 account the fact that the trial co urt saw and heard the witnesses.” Washington , 57
M.J. at 399. We di rect our attention to the third element.

To constitute an offens e under the UCMJ, the adulterous conduct must either be directly prej udicial to good or der and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes
conduct that has an obvious, and measurably di visive 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). Serv ice discrediting include adulterous “conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it su bject 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 di scipline or service discrediting.

CONCLUSION

The findings of guilty a nd the sentence are set as ide. The charges are dismissed. All rights, privile ges, 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 an d Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: