UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

SIMS, COOK, and GALLAGHER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant RICHARD J. McINNISH 

United States Army, Appellant 

ARMY 20090923 

U.S. Army Basic Combat Training Center of Excellence 

John McAfee, Military Judge 

Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate 

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Barbara A. SnowMartone, JA (on brief). 

For Appellee: Major Amber J. Williams, JA; Major Sara M. Root, JA; Captain 

Kenneth W. Borgnino, JA (on brief). 

30 November 2011 

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SUMMARY DISPOSITION 

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Per Curiam: 

 A military judge, sitting as a special court-martial, convicted appellant, 

pursuant to his pleas, of three specifications of failure to obey a regulation, one 

specification of false official statement, two specifications of sodomy, and three 

specifications of adultery, in violation of Articles 92, 107, 125, and 134, Uniform 

Code of Military Justice, 10 U.S.C. §§ 892, 907, 925, and 934 [hereinafter UCMJ]. 

Appellant was sentenced to a bad-conduct discharge, and confinement for seven 

months, and reduction to the grade of E1. The convening authority approved only so 

much of the sentence to confinement as provided for five months confinement and 

otherwise approved the adjudged sentence. This case is before us for review 

pursuant to Article 66, UCMJ. 
McINNISH—ARMY 20090923 

2

LAW AND DISCUSSION 

In United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011), our Superior 

Court held that a provident plea to Article 125, UCMJ, which implicates both 

criminal and constitutionally protected conduct, must include a colloquy between the 

military judge and the accused establishing an acknowledgment by the accused “of 

the critical distinction between permissible and prohibited behavior.” Hartman at 

468. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court recognized 

constitutional limitations upon the criminalization of certain intimate sexual 

conduct. In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the CAAF 

“identified a tripartite framework for addressing Lawrence challenges within the 

military context....” Hartman at 468. The considerations identified in Marcum can 

provide “the appropriate framework for distinguishing between conduct 

constitutionally protected under Lawrence and conduct that may be prosecuted 

criminally under Article 125.” Id. In this case, both specifications of Charge III 

implicate conduct identified in Lawrence as potentially protected, that being the act 

of sodomy. Although the colloquy in this case elicited facts pertinent to 

consideration of the Marcum framework, the discussion between the military judge 

and the appellant did not establish an understanding by the appellant as to the 

relationship between these facts and the criminal nature of his conduct in light of 

Lawrence. Accordingly, appellant’s pleas of guilty to Charge III and its 

specifications are not provident and the findings of guilt are set aside. 

 The second issue warranting discussion concerns whether Charge IV and its 

specifications allege an offense despite an omission of express words alleging that 

appellant’s conduct was to the prejudice of good order and discipline in the armed 

forces, of a nature to bring discredit upon the armed forces, or a non-capital crime or 

offense. Article 134, Clauses 1, 2, and 3, UCMJ. United States v. Fosler, 70 M.J. 

225 (C.A.A.F. 2011) 

Whether a charge and specification state an offense is a question of law that is 

reviewed de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006).

Together, the charge and specification must “allege every element of the offense 

either expressly or by necessary implication, so as to give the accused notice and 

protect him against double jeopardy.” Id. (quoting United States v. Dear, 40 M.J. 

196, 197 (C.M.A. 1994)). Rule for Courts-Martial 307(c)(3). Where a charge and 

specification are not challenged at trial, their language is to be liberally construed. 

Roberts, __ M.J. ___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011). Cf. Fosler

at 230. Additionally, as found in the case before us, “standing to challenge a 

specification on appeal [is] considerably less where an accused knowingly and 

voluntarily pleads guilty to the offense.” United States v. Watkins, 21 M.J. 208, 210 

(C.M.A. 1986). 

In the absence of an objection at trial, we will not set aside a charge and 

specification unless it is “so obviously defective that it could not be reasonably 
McINNISH—ARMY 20090923 

3

construed to embrace [the] terminal element.” Roberts at 5; United States v. 

Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986). A charge and specification initially 

challenged on appeal, while being liberally construed, will not be held invalid 

“absent a clear showing of substantial prejudice to the accused -- such as a showing 

that the indictment is so obviously defective that by no reasonable construction can 

it be said to charge the offense for which conviction was had.” Watkins at 209-10 

(quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 

384 U.S. 964 (1966)(internal quotation marks omitted)). Appellant has failed to 

make such a showing. 

In this case, appellant did not complain that Charge IV and its Specifications 

failed to state an offense by objecting at trial, in his post-trial submissions to the 

convening authority, or in his pleadings before this court. The charge sets forth a 

violation of Article 134, UCMJ, and the specifications state the date, location, the 

identity of the participants, their pertinent status, and the wrongful act. See, e.g., 

United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)(holding a maltreatment 

specification provided notice because “it set[] forth the Article of the Code, name of 

the victim, the time frame of the offense, and the comments alleged to have been 

made by appellant”). The specifications also identify that the appellant was a Staff 

Sergeant and the co-actor was a Private in each instance. Accordingly, these 

allegations necessarily imply that appellant’s conduct was prejudicial to good order 

and discipline and service discrediting. 

Furthermore, there is ample evidence in the record that appellant was on 

notice of the charge and specifications against him. Appellant negotiated a pretrial 

agreement, pled guilty to the specifications with the benefit of advice from his trial 

defense counsel, and was advised by the military judge of the elements of adultery 

—to include the terminal elements—after which appellant described how his conduct 

was both prejudicial to good order and discipline and service discrediting. 

We hold that the adultery charge was not so obviously defective that it could 

not be reasonably construed to embrace this terminal element. Roberts at 5. There 

is no reason to conclude appellant was misled or that he might otherwise suffer 

prosecution for these same offenses twice. He received notice of the offenses 

against which he had to defend and protection against double jeopardy. Charge IV 

and its Specifications state an offense. 

CONCLUSION 

On consideration of the entire record and the submissions of the parties, the 

findings of guilty of the Specifications of Charge III are set aside and dismissed. 

The remaining findings of guilty are affirmed. The dismissal of the Specifications 

of Charge III does not dramatically change the sentencing landscape. The military 

judge found each of the Specifications of Charge III to be multiplicious for 

sentencing purposes with the remaining charges and specifications pertaining to each 
McINNISH—ARMY 20090923 

4

identified co-actor. Furthermore, the maximum possible punishment is not affected 

by the dismissal. Reassessing the sentence on the basis of the errors 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. 

We have also considered the matters personally raised by appellant pursuant 

to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be 

without merit. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES JR. 

 

MALCOLM H. SQUIRES, JR                   

Clerk of Court

FOR THE COURT: