## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Colonel JAMES C. LAUGHREY

United States Army, Appellant

ARMY 20160146

Headquarters, Military D istrict of Washington James W. Herring, Jr., Military Judge ( arraignment ) Tyesha L. Smith, Military Judge ( trial ) Colonel James R. Agar, I I, Staff Judge Advocate (pretrial ) Colonel John P. Carrell, Staff Judge Advocate ( post-trial )

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; William E. Cassara, Esquire (on brief); W illiam E. Cassara, Esq uire (on reply brief ).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. K orte, JA; Captain Mer edith M Picard, JA ( on brief).

2 July 2018

--------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

HAGLER, Judge:

A military judge sitti ng as a general court-martial convicted a ppellant, consistent with his ple as, of aggravated se xual abuse of a chil d, production and possession of child pornograph y, adultery, and co nduct unbecomi ng an officer, in

violation Articles 120, 134, and 133, Unifo rm Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 93 4, 933. He was sentenced to a dismissal and c onfinement for eight years. The convening authority a pproved th e adjudged sentence.

We review this case under Articl e 66, UCMJ. Appellant alleges two errors. First, the military ju dge’s failure to expl ain the defense of l ack of mental responsibility to appellant rend ered his guilty pleas improvide nt. Second, his guilty plea to adultery was improvident , as the militar y judge failed to elicit an adequate

factual basis to show his conduct was se rvice-discrediting. We disagree.LAUGHREY—ARMY 20160146

2 BACKGROUND

At the time of his court-martia l in 2016, appell ant had served nearly 28 years on active duty as a Military Int elligence officer . His marriag e to his w ife of 27 years, LL, produced tw o biological children : one daughter and one son.

When his daughter CL wa s about eleven years old, appellant bega n to engage with her in progressiv ely sexual conduct. He challenged her to reveal her breasts and genitalia, both indoors and outdoo rs in secluded settings, and encouraged her by doing the same himself. He lay in bed with her , often when one or both were naked, and he fondled her breasts, bo ttom, and genitalia . He kissed h er neck and breasts, and he ran his fingers around her labia.

CL recorded her father’ s abuses in a journa l, which was admitte d at trial as an

attachment to the s tipulation of fact. 1 “He told me early on, po int blank, that it was child molestation,” she wrote. A s part of the “cuddling” sessi ons, appellant offered “sex education” to his daughter, demonstrating sexual positions with her and commenting on his ow n experience with ana l sex. Appellant told CL that boys her age “don’t know how t o make it good for the girl.” Once, he to ok her hand and moved it toward his pubic area, but she pulled her hand away. On a couple occasions, she noted th at the tip of appellant’s penis was wet and sticky, and once he wiped the fluid on he r leg. “I was so scared of get ting pregna nt,” she wrote, from the pre-ejaculate fluid he left on the sheets. Appellant assur ed her they were never going to have intercou rse, “but will I try t o give you an orgas m on the other hand? Maybe someday.” “I’m sorry tha t I’m a weird par ent,” he offere d in consolation.

Appellant took many digital p hotos of his nude daughter. 2 In several of them,

CL is bent over or her legs are open, expos ing her vagina. App ellant’s apparently unclothed body can be seen in a number of these images, includi ng two of the “sex education” shots, which portray a fully nude CL s traddling appe llant’s bare waist. Others are close-up shots of h er breasts and vagina. He assure d his daughter he would delete the photos right aft er taking them, a nd he pretend ed to do so in front of her, but he did not. Instead, he kept the images for years unt il they were discovered

1 Appellant stipulated to the adm issibility of CL’ s journal entr ies and videos of her Criminal Investigation Division ( CID) interviews, which were ad mitted for providency and sentencing.

2 The stipulation of fact contai ns a description of each digital image and appellant’s

admission that CL wa s under age 18 in ea ch. Appellant also sti pulated to the admissibility of the i mages, which were ad mitted for providency and sentencing.LAUGHREY—ARMY 20160146

3 during the forensic exa mination of his com puter and storage dev ices. 3 In fact, one

of the more lascivious poses was his lapto p computer “wallpaper ” for some time.

Appellant’s wife, while unaware of sexual nature of these encou nters, warned

him more than once abou t what she saw as “co ncerning behaviors. ” 4 She

admonished him about lying in bed with his adolescent daughter, saying he “stepped

over a line” and that it “looked really te rrible.” Appellant a ngrily protested his innocence, saying he would “nev er do something so disgusting” a nd agreeing to stop. Yet he continued to molest his daughter when his wife an d son were away, and

he asked CL not to tell her moth er, as it would upset her.

Appellant’s abuse of his daugh ter continued for about seven yea rs, at the family’s homes in Mar yland and Pennsylvani a, and als o during se veral family trips. 5 His action came to light in 2014, when CL was 20 years old. Wh ile looking into the abuse allegations, CID investiga tors also uncovere d extensive p hotographic and video evidence of appellant’s sexual relationship with a marrie d friend of the Laughrey family , Ms. SM.

Appellant’s mental responsibilit y and capacity rec eived conside rable attention during pretrial proceedings a nd at trial. On 11 June 2015, at defense requ est, the military judge order ed a R.C.M. 706 sanit y board, which found a ppellant, at the time of the alleged offenses: 1) ha d no mental diseas e or defect; 2 ) did not meet criteria for a psychiatric diagnosis; and 3) was able to a ppreciate the nature, quality, and wrongfulness of his conduct. The board also found appellant pr esently suffered from major depressive disorder, but he had the mental capacity to understand and cooperate in his defense.

Although appellant di d not challenge the sanity boar d’s finding s, his civilian defense counsel [here inafter CDC] did retai n an exper t in neuro -psychology, Dr. Nadia Webb, to review images of appellant’s brai n and conduct c ognitive testing. Dr. Webb gave extensive testim ony on two occasion s. First, in support of a defense

motion for continuance to further evaluate the impact of trauma tic brain injury (TBI)

3 Appellant stipulated to the adm issibility of the CID Digital F orensic Examination report, which was admitted for providency and sentencing.

4 Appellant stipulated to the adm issibility of his wife’s sworn statement to CID, which was admitted for pro vidency and sentencing.

5 The charges in this case properly refle ct the creation of a sp ecific child pornography offens e under Article 134, UC MJ, which applies to c onduct after 11 January 2012. Appella nt’s production of c hild pornography prio r to that date was properly charged as an assimila ted federal offens e under clause three.LAUGHREY—ARMY 20160146

4 on appellant’s conduct. 6 Second, she testified during the defense sentencing case. Each time, the CDC represented that Dr. Webb’s testimony and in volvement in the case were for mitigation only a nd not intended to raise a defen se or to n egate the specific intent element of any charge. 7

In the motions hearing, Dr. Webb t estified that appellant’s bra in showed a scattering of small lesions and global tissue atrophy, and that the CDC had asked her

to evaluate how these conditions affected appellan t’s decision making, judgment, and impulse control. While the CDC told the court he had no co ncerns about appellant’s mental responsibilit y or capacity, he argued denyin g the delay would “impede [appellant’s] ability t o present a case in mitigation a nd extenuation. . . .” The CDC explained why he did not b elieve lack of mental respons ibility [hereinafter LMR] was a legal defense:

CDC: The law has not caught up with brain science. The only defense to these kinds of crimes is insanity – we’ve had an insanity [sic] board, and Colonel L aughrey is sane. However, I believe, in 5-10 de cades, we’re going to look

back on moments lik e this and sa y, we were so shortsighted on how the brain wor ks. So, based on the law,

based on case law an d statutes and regula tions, this is not a defense, and that’s why I say, ‘I don’t believe so.’

Military Judge: Is it evidence that might negate specific

intent?

CDC: It could, but I don’t think we’re going to get there in this case. . . . [T] he cumulative effect of [appellant’s] traumatic brain inju ry has an impact on inhibitions . . . . I

need to understa nd how, if at al l, it impacted [appellant’s]

conduct. Not as a defense, but in mitigation. 8

6 The military judge had previous ly granted a def ense-requested continuance, from

October to December 2015, to allow appella nt’s evaluation for T BI and to determine

if TBI affected his c onduct. CDC note d that request was “solel y for the purpose of sentencing.” The military judge had also granted a continuance , from August to October 2015, to allow the recen tly retained CDC to prepare for trial.

7 We do not suggest tha t counsel may be provi dent for an accused , but the CDC’s repeated disclai mers of the lack of menta l responsibility defen se, in appellant’s presence, support our conclusion that appellant was aware of th e defense.

8 At least ten times during the mo tions hearing, the CDC indicat ed that the purpose

(continued . . .)LAUGHREY—ARMY 20160146

5 After the military judge denied the continuance, appellant with drew from his pretrial agreement, a nd trial was set for March 2016. On 16 Fe bruary 2016, however, appellant ente red a new pretrial a greement, and he ple d guilty on 3 March

2016.

During the defense se ntencing case, Dr. Web b testified as an ex pert witness about her cognitive testing of a ppellant and the condition of h is brain. She related

that clinical st udies had shown an association bet ween similar brain conditions and impulsivity, poor judgment, disi nhibition, increa sed sex drive, and decreased “mate selectivity,” while noting it is possible to treat these proble ms successfully. The military judge then e xplained the standard for the LMR defense under R.C.M. 916(k)

and asked Dr. Webb if she belie ved it applied to appellant:

Dr. Webb: I believe, from wh at I saw, that [appellant] appreciated that [his conduc t] was wrong, but not the sense that it was potentially harmful to his daughter in the way that it was. I believe that---

Military Judge: So he appre ciated that it was wrong?

Dr. Webb: I believe he appre ciated it was wrong, but not the full import of what he w as doing—the same way that people can sometimes appreci ate something is frowned on,

but I don’t believe he fully appreciated the harm it would cause to him, to his family , to his daughter. . . .”

The military judge als o explained to Dr. Web b the purpose of a sanity board and the questions it answers under R.C.M . 706, takin g care to c larify the difference between mental responsibility a nd capacity to st and trial. She then asked Dr. Webb, “[K]nowing what you know about Colonel Laugh rey, do you believe that he had a

defense to his actio ns?” As part of a len gthy response, Dr. We bb opined, “Could he say, ‘This is wrong?’ Yes,” but she believed his upbringing and brain condition

(. . . continued) of appellant’s request ed continuance was t o obtain mitigation e vidence, that LMR

was not a defens e in Appellant’s case, or that the evidence app ellant sought would not raise the LMR defense or nega te specific intent. The CDC n oted, however, that because appellant had not yet entered pleas , he had a “duty to make sure [specific intent] remains in pla y,” in the even t an appellate court raise d concerns about

defense counsel’s due d iligence in this case.LAUGHREY—ARMY 20160146

6 resulted in a lack of “full emp athy and appreciation for the wr ongfulness of his

actions.” 9

Immediately after Dr. Webb was e xcused and return ed to the gall ery, the military judge asked the CDC if he had explored t he LMR defense with appellant.

Military Judge: Defense, I kn ow that there was a sanity

board conducted in this case . Have you fully explored

whether the accused had the m ental capacity to commit the

offenses?

CDC: We have e xplored those ad nauseum ; we have discussed it frequently. Dr. Webb’s testimony, I don’t

believe it forms a b asis for a defense o f mental disease or defect, because she said that he did un derstand what he was doing was inappropriate, t hough he didn’t understand how it might affect his daughter

The military judge then addressed a ppellant directly.

Military Judge: Colonel Lau ghrey, have your defense counsel discussed with you men tal capacity and mental responsibility? Have they discu ssed those ter ms with you?

COL Laughrey: Yes, they have, Your Honor.

Military Judge: Do y ou agree with your defense counsel’s

assessment that the defense of i nsanity, or th e defense of mental responsibilit y or mental capacit y does not apply in your case?

COL Laughrey: I do agree with that, Y our Honor.

LAW AND DISCUSSION

Our superior court has explai ned the standard of review we app ly in this case

as follows:

A military judge’s decision to accept a guilty plea is

reviewed for an abuse of d iscretion. Pleas of guilty

should not be set aside o n appeal unless there is a substantial basis in law and fact for questioning the guilty

9 Sentencing testimon y addressed appellant’s difficult family hi story, to include sexual abuse by an adult a unt when he was a teen.LAUGHREY—ARMY 20160146

7 plea. If an accused sets up matter inco nsistent with the plea at any time duri ng the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea. Once the military judge has accepte d a plea as provident and has entered f indings based on it, an appellate court will not rever se that finding a nd reject the plea unless it finds a substanti al conflict between the plea

and the accused’s statements or other evidence of record. A mere possibility of such a conflict is not a sufficient

basis to overturn the trial results.

United States v. Shaw , 64 M.J. 460, 462 (C. A.A.F. 2007) (intern al citations and quotation marks omitted). This c ourt considers t he entire reco rd when determining providency of a plea. United States v. Redlinski 58 M.J. 117, 119 (C.A.A.F. 2003).

A. Lack of Ment al Responsibility

Regarding the first as signed error, we initially consider wheth er Dr. Webb’s expert testimony raised a matter inconsistent with appellant’s guilty plea, and if so,

whether the milit ary judge resolved the m atter appropriately. Then we examine the related, but separate question of providency : whether appellan t understood the LMR

defense and was aware t hat by pleading guilt y he waived his rig ht to raise it.

1. Dr. Webb’s Sentencing Testimony

We recognize that “[t]he existen ce of an apparent and complete defense is necessarily inconsistent with a plea of guilty.” Shaw , 64 M.J. at 462. In any guilty plea, the military judge has an affirmative duty to resolve an apparent inconsistency by conducting further inquiry. A rticle 45(a), UCMJ. This duty is heightened in cases where mental respons ibility may be at issue. See Shaw , 64 M.J. at 465. 10 In the instant case, the military judge satisfied the obligation, first by o rdering a R.C.M. 706 inquiry. Se cond, she clarified t hat Dr. Webb’s test imony did not meet the legal standard f or the LMR defense. T hird, she confirmed t hat both appellant

and his counsel were aware of the LMR defense and both appellan t personally, and his counsel, believed th e defense did not apply.

10 “Once a statement by the accused r aises the possibility that a defense may apply, the military judge has an affirmat ive obligation to resolve any apparent ambiguity or inconsistency by conducting furth er inquiry. If, upon such inq uiry, it appears that

the accused m ay have a defense of lack of mental re sponsibility . . . the military judge must determine whether to o rder psychologi cal testing by a sanity board.” (citing Article 45(a) , UCMJ; R.C.M. 706(a ); R.C.M. 916(k))).LAUGHREY—ARMY 20160146

8 We concur with appell ant that Article 45, UCMJ, extends to all defense matters inconsistent with a guilty plea, not only those that co me directly from an

accused. 11 Here, the source of the possibl e inconsistency was Dr. Webb. After initially testifying a bout impulsivity and d isinhibition, she u ltimately opined that appellant understood his conduc t was wrong, but h e failed to fu lly appreciate the long-term consequences— the risk and extent of harm to himself, his family, and to his daughter. Even viewed in the light most favorable to the de fense, Dr. Webb’s opinion does not reasona bly raise the elements of the LMR defen se under R.C.M. 916(k). At best, her initial t estimony raised the “mere possib ility” of the defense, but that possibility was negated by Dr. Webb herse lf, after the military judge apprised her of the l egal standard. After s he opined that appe llant appreciated his conduct was wrong, 12 there was no possible defen se raised, and no potential inconsistency be tween her testimony and app ellant’s guilty plea

.

Appellant argues the military ju dge should have done more, spec ifically by explaining the LMR defense to a ppellant and having him refute o r disavow the facts supporting the defense. But again, there remained no potential inconsistency or fact for appellant to dis avow. The situation mi ght be different if appellant himself had testified to facts raising a defe nse or offered some other beli ef inconsistent with a guilty plea. Certainly in cases where the accused’s subjective belief is an element of a defense, the military judge sh ould determine whe ther an accus ed holds or disavows

the belief or facts at issue. 13 In this case, there was no s uch issue. There was only

11 Appellant further argues the on ly way the military judge can r esolve a potential inconsistency is to question the accused, citing United States v. Harris , 61 M.J. 391 (C.A.A.F. 2005). Parti cularly on the facts o f the instant case , we do not c oncur that an accused is the only person wh o can resolve a potential incon sistency or that he must personally refu te or disavow testim ony raising a possible defense, regardless of

its source.

12 One of the touchstones of Dr. Webb’s testimony was that appell ant lacked empathy, not mental capability. Dr. Webb explained: “[T]he imp airments that I saw were not on formal reasoning. C ould he say, ‘Th is is wrong’? Yes.” Dr. Webb had previously explained appellant had a diminished capacity to “ha ve empathy, and fully appreciate what it might b e like to be [his victim].” Of course, a lack of empathy or failure to fully appreciate a victim’s experience do es not raise a defense.

13 The examples cited by appellant raise similar issues: the def enses of consent, justification, mistake of fact, or self-defense. In such cases , if extrinsic evidence

showed the accused hel d the requisite belie f, then questioning the accused might be the only way to resolve the potential inconsistency. See, e.g. United States v.

Thomas , 45 M.J. 661, 66 5-66 (Army Ct. Crim. App. 1997).LAUGHREY—ARMY 20160146

9 Dr. Webb’s initial te stimony, and when she cl arified her opinio n, in light of the legal standard, it no longer raised even the po ssibility of a defense

. Taken as a whole, Dr . Webb’s testimony strik es us as exactly wh at the CDC consistently told the court it was, throughout t he case: mitig ation evidence tending to lessen the punishment appellan t might otherwise merit. In t he end, there was no

conflict between Dr . Webb’s testimony and a ppellant’s pleas.

2. Appellant’s Understanding and Waiver of the LMR Defense

Next we turn to the re lated but separate que stion of providency —specifically, whether appellan t understood the LMR defense and his right to r aise it, and whether

he made an informed decision t o waive it by ple ading guilty. W e conclude he did.

Again, appellant arg ues the military judge should hav e done mor e to ensure appellant was provident, but let us review what she actually di d. The military judge accepted appellant’s guilty plea only after a thorough colloquy on the righ ts he was giving up by doing so. The military judge went through the pre trial agreement paragraph-by-paragra ph with appellan t, who assure d her he under stood its meaning

and effect. 14 The military judge a lso discussed the sti pulation of fact, to include its provision on menta l responsibility. 15 During the defense s entencing case, the military judge explained the sta ndard for the LMR defense to Dr . Webb and clarified that the witness’ opinion did no t raise the defe nse. Immediate ly afterward, the military judge questioned the CDC and appellant separately, and their responses left

no doubt about their position: they had discussed the LMR defe nse, they be lieved it did not apply, and they di d not intend to raise it. 16

14 In the pretrial agr eement, appellant wai ved any motions to sup press unlawfully

obtained evidence. The military judge confirmed that appellant understood he was giving up the right to make any other motion that, by law, was waived by his guilty plea.

15 Paragraph VII of the Stipulation of Fact, reads, “STIPULATION AS TO MENTAL RESPONSIBILITY[.] During all the events referred to in this st ipulation, [appellant] was competent. He ha s no legal excuse or justifica tion for his actions.” Appellant adopted the stipulat ion of fact and mad e several chan ges to it in court.

16 Appellant’s reply bri ef takes issue with C DC’s description of the LMR defense during this colloquy with the military jud ge. Alth ough his bri ef comments in that

one instance failed t o capture the defense fully and accurately , we find no reason to

doubt the CDC under stood the legal standar d. The CDC spoke abo ut mental responsibility and comp etency frequen tly on the reco rd, often a t length, and the record shows he had previously se rved as defense counsel in a c ourt-martial where mental responsi bility was a key issue.LAUGHREY—ARMY 20160146

10 Although the military j udge did not reitera te the explanation s he had just given to Dr. Webb, we conclude a ppellant underst ood the LMR def ense. It was a recurring topic in pretrial motions and at trial, and appellant was present during

these extensive discussions. More over, appe llant participated in the sanity board, and given the number of times the results were discussed in cou rt, we have no reason to suspect he was not aware of them and what they meant.

It is clear from the record that appellant sought to plead guil ty, but at the same time, to o ffer expert testimony abou t his brain condition in mitigation. The record also shows appellant gained considerable benefit from hi s pretrial agreement. In addition to a sentence limitation, the convening authority a greed to dismiss a charge and several specifications , thereby reducing appellant’s punitive exposure. Likewise, appellant received the benefit of his expert witness’ s mitigation testimony during sentencing. 17

From all appearances, appellant t ook part in plea discussions a nd entered his guilty pleas with his e yes wide open. Through out the trial, ap pellant was articulate and appeared engaged in the pro ceedings. There is no suggestio n in the record that

he was confused about his rights or d id not know he was waiving them by pleading guilty. Appellant’s and counsel’ s exchanges with the military judge occurred at times when he could have withdrawn from the pretrial agreement and asserted the LMR defense in a contested trial. Indeed, appellant’s withdraw al from the first pretrial agreement after his continuance was denied shows that he understo od these rights. In sum, we ar e convinced appellant kn ew what the LMR d efense entailed, that he could raise it, and that he was voluntar ily waiving his ability to do so by pleading guilty.

As a final point, we find no basis in fact to question appellan t’s mental responsibility, as his own words and deeds show he could, and a ctually did, appreciate what he was doing. He hid his abuse of his daughter for many years, and he took greater pain s to do so after his wife confronted him. He falsely told his daughter he deleted the pornographic photos he took of her. He pursued his assignations with SM in secret. He apologized to his daughter for being a “weird parent,” acknowledgi ng the deviant and wr ongful nature of his c onduct. Lastly, appellant admitted duri ng the providence i nquiry and in the sti pulation of fact that

17 In the context of the LMR defen se, we question whether it is i n the interest of justice to reject a gu ilty plea, depriving an accused of such b enefits and placing on him the burden to pr ove, by clear and conv incing evidence, a de fense he a nd counsel believe does not appl y and which is strongly contradicted by th e evidence. This

seems a harsh result to impose on an accus ed who seeks to offer what may be the best mitigation evidence he has. While not necessary to resolv e this case, we consider this question , just as trial judges must consider the interests of justice in exercising their discretion to accept or reject a guilty plea.LAUGHREY—ARMY 20160146

11 his conduct was wrong, why it wa s wrong, and that he could have avoided the

conduct if he wanted. We are sa tisfied that appellant apprecia ted the natur e, quality, and wrongfulness of his conduct at the time of the offense and thus, the military judge did not abuse her discret ion in accepting appellant’s gui lty pleas.

B. Appellant’s Guilty Plea to Adultery

On the second assigned error, we consider t wo questions. First , as a matter of law, must adultery be open and notorious t o be service-discredi ting? Second, did appellant’s statements during pro vidency and in the stipulation of fact provide a

sufficient basis to f ind his cond uct was, in fact, service-disc rediting?

Appellant argues t hat by amending the Manual for Cour ts-Martial [ MCM ] in 2002, the Pres ident intended an especi ally strict definition ofthe “servicediscrediting” elemen t of adultery. Appella nt further argues th at adultery cannot be service discrediting unless it is “open and notorious” at the t ime of commission, suggesting that future discovery is insufficient to satisfy the element.

We look first to the M anual’s explanation: “Discred it . . . includes adulterous

conduct that has a tendency , because of its open or notorious nature, to bring the

service into dis repute, make it subject to public ridicule, or lower it in public

esteem.” MCM , pt. IV, para. 62.c.(2) (2012 ed. ) (emphasis added). Consider ing the emphasized words, we note that th e President coul d have require d adulterous conduct to be both open and notorious, as appe llant suggests. 18 Instead of the nonexclusive “includes,” the Presid ent could have stated discredit “is limited to,” “includes only,” or “comprises” adulterous conduct that is open or notorious. But as the President did not use these words, we are not inclined to r ead them as narrowly as appellant suggests.

We also note that the MCM directs commanders to c onsider “all relevant

circumstances” to determine if adulterous conduct is prej udicia l or service discrediting. Among th e non-exclusive fact ors listed is “the f lagrancy of the conduct, such as whe ther any notoriety ensued .” MCM , pt. IV, para. 62.c.(2). This language plainly envis ions notoriety arisin g after discovery, n ot just at the time of commission. Indeed, it would be difficult t o describe even the most infamous crime

as “notorious” if limited to the time it was know n only to the culprits.

Given the plain text of the cu rrent Manual, we see no need to d elve deeply

into the drafter’s intent or the scope of prior versions to rea ch a result in this case.

18 Although appellant’s counsel u sed the phrase “ open and notorio us” many times in their briefs, we find the military judge correctly advised appe llant on the current language of para . 62.c.(2), i.e ., “open or notorious.”LAUGHREY—ARMY 20160146

12 Adultery is not requir ed to be both open and notorious; it may be ei ther. Further, it

need not have actuall y lowered the service in public esteem, bu t it must have tended to do so, even i f discovered after the fact.

We find the military j udge elicited a suffici ent factual basis to support appellant’s guilty ple a to adultery. The military judge proper ly explained the offense, including the meaning of “service-discre diting conduct .” Appellant said he

understood the elements and defi nitions, and he ad mitted they a ccurately described

what he did. He admitt ed to having se xual intercourse with SM, “a long-time family friend,” who was married to TM at the time. He th en explained why his conduct was service discrediting—be cause it “would degr ade the opinion of t he public as to the integrity of commissioned office rs, and of their general view o f the armed forces.” Appellant admitted that , during the investi gation, he told his wife and several inlaws of his adultery, and that TM also beca me aware of the affa ir. He agreed with the judge that society expects m ore of him as an Army officer, that his conduct

would lower the milita ry in the esteem of t he public, and that he could have avoided committing adultery if he had wanted. In the stipulation of fa ct, appellant admitted his adultery was “not what civilians expect from service member s let alone senior ranking officers.” 19 We find these admissions were sufficient to establish the service-discrediting nature of appellant ’s conduct, and the mil itary judge did not abuse her discretion in accept ing his guilty ple a to adultery.

CONCLUSION

With the full benefit of hindsig ht, it is often possible to fin d less-than-perfect execution in a guilty plea—questions the military judge could h ave explored to exhaustion, or facts that might have been developed more thorou ghly in the adversarial process of a contested trial. T his case is no diff erent, but it shows why the law gives substantial deference to the military judge in gu ilty plea cases. As our superior court has observed, al though a more prob ing inquiry by the military judge might have resulted in a record “ free even of argu able error,” we find any questions raised by this recor d are not substantial enough to cast doubt on the providency of appellant’s guilty plea. United States v. Garcia , 44 M.J. 496, 499 (C.A.A.F. 1996).

The findings of guilty and th e sentence are AFFIRMED.

19 Appellant also stipulated to th e expected testimony of TM, whi ch was admitted for both providency and se ntencing. If called a s a witness, TM wou ld testify he had “strong suspicion s” of his wife’s affair w ith appellant, which was in part responsible for TM’s divorce from SM. Also, TM would testif y that his curr ent knowledge of

the affair “lowered his view of t he military and e specially of high ranking officers.”LAUGHREY—ARMY 20160146

13 Senior Judge BURTON and Judge SCHASBERGER concur.

JOHN P. TAITT Acting Clerk of Court JOHN P. TAITT Acting Clerk of Court FOR THE COURT: