UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, K.M. MCDONALD, M.K. JAMISON

Appellate Military Judges

UNITED STATES OF AMERICA

v.

GREGORY T. MILES

LANCE CORPORAL (E-3), U.S. MARINE CORPS

NMCCA 201300272

GENERAL COURT-MARTIAL

Sentence Adjudged: 4 April 2013.

Military Judge: LtCol Eugene H. Robinson, Jr., USMC.

Convening Authority: Commanding General, III Marine 

Expeditionary Force, Okinawa, Japan.

Staff Judge Advocate's Recommendation: Col J.R. Woodworth, 

USMC.

For Appellant: LT Jared A. Hernandez, JAGC, USN; LT 

Jennifer Myers, JAGC, USN.

For Appellee: Maj David N. Roberts, USMC; LCDR Keith B. 

Lofland, JAGC, USN.

For Amicus Curiae: Mr. Richard O. Cunningham, Esq.

21 August 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

JAMISON, Judge:

A military judge sitting as a general court-martial

convicted the appellant, contrary to his pleas, of two 

specifications each of attempted sodomy, indecent acts, and 
2

adultery in violation of Articles 80, 120, and 134, Uniform Code 

of Military Justice, 10 U.S.C. §§ 880, 920, and 934. The

military judge sentenced the appellant to reduction to pay grade 

E-1, forfeiture of all pay and allowances, confinement for a 

period of 12 months, and a bad-conduct discharge. The convening 

authority (CA) approved the sentence as adjudged.

1

The appellant raises five assignments of error (AOE). In 

his first AOE, the appellant argues that the Government’s 

decision to charge him with sodomy and indecent acts represented 

an unreasonable multiplication of charges. In his second AOE, 

the appellant argues that Article 120(k) is unconstitutionally 

vague both facially and as-applied to the facts of his case. 

Additionally, the appellant argues that Article 120(k) is 

unconstitutionally overbroad. In his third AOE, the appellant 

makes a constitutional due process challenge to Article 120(k),

arguing that his sexual conduct was not indecent as a matter of 

law. In his fourth and fifth AOE, the appellant argues that 

Article 125 is unconstitutionally vague and overbroad, and that 

his conviction for attempted sodomy violated his constitutional 

due process rights. 

After consideration of the pleadings of the parties, the 

Amicus Curiae submission2 and the record of trial, we conclude 

that the findings and sentence are correct in law and fact, and 

that no error materially prejudicial to the substantial rights 

of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.

I. Factual and Procedural Background

Lance Corporal (LCpl) KS had planned a “girls-night-out” 

with one of her close friends, Mrs. BC (BC), for 3 February 

2012. LCpl KS worked with BC’s husband, LCpl NC, and had met BC 

through him. Mrs. ED (ED), who LCpl KS had met through BC,

rounded out the trio. Because BC and ED lived on installations 

geographically separated from Camp Hansen (where LCpl KS 

resided), they decided that BC and ED would spend the night in 

LCpl KS’s barracks room after a night on the town. One of the 

reasons LCpl KS decided to have a “girls-night-out” was to cheer 

up BC, who had recently suffered a miscarriage.

 

1 At the request of the appellant in his clemency petition, the CA suspended 

confinement in excess of six months. 

2 We granted the National Coalition for Sexual Freedom’s motion to file a 

brief as Amicus Curiae. NMCCA Court Order of 25 Mar 2014.
3

On the evening of 3 February 2012, LCpl KS, BC, and ED left 

Camp Hansen to go to Kin Town. They stayed in Kin Town for 

approximately four hours and all three women had several drinks. 

The women returned to Camp Hansen and went to The Palms, an onbase club. While at The Palms, BC, misplaced her identification 

card (ID). The appellant was also at The Palms and helped BC 

try to locate her ID. BC eventually found her ID in the 

bathroom. The women continued to drink.3 The appellant began 

talking to BC and ED, and he exchanged phone numbers with ED. 

ED testified that she gave the appellant her phone number 

because she was new to Okinawa and wanted to expand her circle 

of friends. Both women testified that they told the appellant 

that they were married.

While on the dance floor at The Palms, one of the bouncers 

determined that BC was underage and she was escorted out of the 

club. BC’s husband was contacted, drove to The Palms, and he 

and BC decided that BC should spend the night with ED and LCpl 

KS as planned. 

The women walked over to LCpl KS’s barracks and spent some 

time in the smoke pit talking with a group of male and female 

Marines. LCpl KS consulted the barracks duty non-commissioned 

officer to inform him that BC and ED would be spending the night

in her barracks room. Record at 57-58. At approximately 0211 

on the morning of 4 February 2012, the appellant began sending a 

series of text messages to ED indicating his desire to see her 

that night. Prosecution Exhibit 12. ED responded via text that 

she was staying in barracks building number 2610 and that she 

was outside. Id. At some point, the appellant arrived and 

joined the group of Marines. The appellant had changed into his 

uniform.

After spending some time socializing at the smoke pit and 

also in the barracks multi-purpose room, the group broke up and 

LCpl KS, BC, and ED started walking to LCpl KS’s room. The 

appellant followed the three women. All of the women denied 

having invited the appellant to LCpl KS’s room. LCpl KS 

testified that she was slightly uncomfortable and asked the 

appellant if he was going to leave. According to LCpl KS, the 

appellant said that he needed a place to sleep and did not want 

to walk back to the other side of the installation. LCpl KS 

 

3 All three women testified that they were intoxicated towards the end of the 

night. LCpl KS testified that on a scale from 1 to 10, 10 being passed out 

drunk, she estimated she was at level 7. Record at 54. ED estimated her 

level of intoxication to be 9.5. Id. at 84. BC estimated her level at 4. 

Id. at 109.
4

prepared sleeping bags for the appellant and for herself. LCpl 

KS put her sleeping bag beside her bed and placed the other 

sleeping bag at the foot of her bed. Earlier that evening, LCpl 

KS had decided that she would sleep on the floor while BC and ED 

would sleep in her bed.

At some point, the appellant got out of the sleeping bag 

and made his way to the bed. BC testified that she woke up and 

the appellant’s hands were down her shorts and that he was 

grabbing her buttocks and rubbing her vagina. BC testified that 

she went to sleep with a tampon, but when she was awakened by 

the appellant’s fondling, the tampon was gone.4 

When BC woke up and realized what was happening, she 

hurried down to LCpl TC’s barracks room on the second deck. 

LCpl TC was her husband’s best friend. According to LCpl TC, BC 

was frantic and asked for his help in getting the appellant out 

of LCpl KS’s barracks room. LCpl TC testified that when he 

arrived at LCpl KS’s room he saw LCpl KS on the floor asleep in 

her sleeping bag; the appellant was awake in the bed stroking 

ED’s arm while she appeared to be asleep. Id. at 160. ED 

testified that she had no recollection of any sexual acts 

committed by the appellant.

Following BC’s complaint, agents from the Naval Criminal 

Investigative Service interrogated the appellant. The appellant 

admitted to digitally penetrating ED’s vagina and anus. PE 14. 

He also admitted to penetrating BC’s vagina, touching her anus 

with his penis, touching her buttocks, and digitally penetrating 

her vagina and anus. The appellant also admitted that he tried 

to penetrate ED’s and BC’s anuses with his penis, but was unable 

to do so because he was unable to achieve an erection. 

The Government preferred the following charges against the 

appellant: false official statement; aggravated sexual assault 

of BC; abusive sexual contact of BC; wrongful sexual contact of 

BC; two specifications of indecent acts with BC and ED; sodomy 

of BC and ED; and, adultery with BC and ED.

Following a trial on the merits, the military judge made 

special findings pursuant to RULE FOR COURTS-MARTIAL 918(b), MANUAL 

FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Id. at 236-43. The 

military judge acquitted the appellant of making a false 

official statement, aggravated sexual assault, abusive sexual 

 

4 Subsequent testing of the tampon string revealed touch DNA left that matched 

the appellant’s DNA. 
5

contact, and wrongful sexual contact. He found the appellant 

guilty by exceptions and substitutions of committing indecent 

acts with BC and ED. He acquitted the appellant of sodomy, but

found him guilty of the lesser included offense of attempted 

sodomy. Finally, the military judge found the appellant guilty 

of adultery for wrongfully having sexual intercourse with ED and 

BC.

With regard to his reasoning behind the conviction for 

indecent acts under Article 120(k), UCMJ, the military judge 

concluded that the acts were indecent because they were “open 

and notorious” in that there was a “substantial risk that the 

acts could be witnessed by someone else.” Id. at 237. 

Additionally, the military judge made special findings as to his 

rationale why the appellant’s adulterous conduct was both 

service discrediting and prejudicial to good order and 

discipline.5 

II. Unreasonable Multiplication of Charges 

The appellant argues that the Government’s decision to 

charge him with indecent acts and sodomy represented an 

unreasonable multiplication of charges (UMC). We disagree.

We review UMC claims under an abuse of discretion standard. 

United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012)

(citing United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) 

(additional citation omitted). In determining whether UMC 

exists, we consider five factors: (1) did the appellant object 

at trial; (2) are the charges aimed at distinctly separate 

criminal acts; (3) do the charges misrepresent or exaggerate the 

acts; (4) do the charges unreasonably increase the appellant’s 

punitive exposure; and, (5) is there any evidence of 

prosecutorial overreaching or abuse in the drafting of the 

charges and specifications? United States v. Quiroz, 57 M.J. 

583, 585-86 (N.M.Ct.Crim.App. 2002) (en banc), aff’d, 58 M.J. 

183 (C.A.A.F. 2003) (summary disposition).

 

5 Specifically, the military judge found that the adulterous conduct was 

service discrediting due, inter alia, to its “open and notorious” nature. 

Record at 241. The military judge concluded that the adultery was 

prejudicial to good order and discipline and service discrediting based on 

the following non-exclusive circumstances: the marital status of BC and ED 

and their relationship to the Marine Corps; the military status of BC’s and 

ED’s respective spouses; the misuse of the barracks to commit adultery; the 

fact that other UCMJ violations took place during the adulterous conduct and 

the location of this conduct: “in another Marine’s [barrack’s] room and in a 

foreign country.” Id. 
6

Because the appellant did not object at trial, the first 

Quiroz factor weighs in favor of the Government. The appellant 

concedes this. We find that the second and third factors weigh 

slightly against the appellant since the two offense were 

primarily aimed at different criminal acts -- the sodomy

specifications were aimed at addressing the appellant’s alleged 

penile penetration of ED’s and BC’s anuses, whereas the indecent 

act specifications alleged separate sexual misconduct by the 

appellant to include digital penetration and other sexual acts. 

With regard to BC, the appellant was charged with digital 

penetration of her vagina and anus, as well as touching BC’s 

vagina and buttocks. With regard to ED, the appellant was 

charged with penetrating her vagina with his penis and rubbing 

her breasts and vagina. Even though there was some overlap 

between the sodomy offenses and indecent act offenses, this 

charging scheme does not misrepresent or unreasonably exaggerate 

the appellant’s criminality. See United States v. Paxton, 64 

M.J. 484, 491 (C.A.A.F. 2007) (holding that within the context 

of a continuing course of conduct indecent act of touching 

breasts and genitals was separately chargeable from offense of 

rape and sodomy and did not constitute UMC). 

The fourth factor also weighs against the appellant because 

the military judge’s findings served to eliminate almost all the 

overlap in conduct. The military judge found the appellant 

guilty of indecent acts by exceptions and substitutions. With 

regard to the specification alleging an indecent act with ED, 

the military excepted the following language: “penetrating the 

vagina and anus with his penis” and substituted the following: 

“digitally penetrating the vagina and anus.” Record at 235. 

Thus, any overlap with the sodomy charge was completely 

eliminated. Although the specification alleging an indecent act 

with BC contained overlap with the attempted sodomy of BC, we do 

not believe that the appellant’s punitive exposure was 

unreasonably exaggerated. In this case, the military judge was 

the sentencing authority. Thus, we conclude that any overlap in 

conduct did not subject the appellant to an unreasonable 

increase in punitive exposure, because we presume that in 

adjudging an appropriate sentence the military judge considered 

the charges and specifications in their proper light. 

 

The fifth factor also weighs against the appellant. There 

is no evidence of prosecutorial overreaching or abuse in the 

drafting and charging of indecent acts and sodomy offenses. On 

balance, we find that the Quiroz factors weigh against the 

appellant. 
7

III. Constitutional Challenges to Article 120(k)

In AOE II and III, the appellant, for the first time on 

appeal, makes a broad-based constitutional attack on Article 

120(k), UCMJ. In AOE II, he argues that Article 120(k) is voidfor-vagueness and unconstitutionally overbroad. In AOE III, 

while unfocused, the appellant makes essentially a due process 

argument that as-applied to the facts of his case, his 

convictions for indecent acts are unconstitutional. Because his 

constitutional attacks on Article 120(k) in both AOEs are 

linked, we consider each argument in turn. 

We review de novo the appellant’s various constitutional 

challenges to Article 120(k). United States v. Goings, 72 M.J. 

202, 205 (C.A.A.F. 2013). Prior to reaching the merits of his 

arguments, however, we consider whether the appellant forfeited 

his constitutional claims by failing to raise them at trial. 

Under the circumstances of this case, we find that he has and,

accordingly, we review his claims for plain error.6 See United 

States v. Howard, 72 M.J. 406 (C.A.A.F. 2013) (summary 

disposition) (holding that Howard’s Article 120(k) due process 

claim for having sexual relations in the presence of others was 

forfeited); see also Goings, 72 M.J. at 205 (concluding that 

Goings’s as-applied due process challenge to the

constitutionality of indecent acts under Article 134 was 

forfeited by his failure to raise the issue and develop facts at 

trial). We turn our attention now to the appellant’s vagueness 

challenge to Article 120(k).

A. Facial Vagueness Challenge to Article 120(k)

The appellant argues that Article 120(k) is 

constitutionally infirm on vagueness grounds. The thrust of his 

vagueness argument surrounds Congress’s 2007 enactment of 

Article 120(k). He argues that when Congress enacted the 

statutory offense of indecent acts in Article 120(k) without the 

terminal element of the preexisting Article 134 offense, it is 

now unclear what actual conduct remains “indecent” and 

punishable.

To make a constitutional challenge on facial vagueness

grounds within the military context, an appellant must first 

have standing. If the appellant’s “conduct [under the] statute 

 

6 Within the context of our plain error review, we will grant relief “only 

where: (1) there was error; (2) the error was plain and obvious; and, (3) 

that error materially prejudiced a substantial right of the [appellant].” 

United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011).
8

clearly applies [he] may not successfully challenge it for 

vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974); see also 

United States v. McGuinness, 35 M.J. 149, 152 (C.M.A. 1992) (“If 

appellant is . . . one to whom the statute clearly applies, he 

has no standing to challenge successfully the statute under 

which he is charged”) (citations and internal quotation marks 

omitted)). To determine whether a statute “clearly applies” and 

provides fair notice of the proscribed conduct, we consider not 

only the plain language of the statute, but also other sources, 

including the “[Manual for Courts-Martial] . . . military case 

law, military custom and usage, and military regulations.” 

United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)

(citations omitted). 

Based on the plain text of Article 120(k), UCMJ, as further

defined in the MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and 

interpreted by our superior court, we find that service members 

of ordinary intelligence have “fair notice of what is 

prohibited.” United States v. Williams, 553 U.S. 285, 304 

(2008). Additionally, we find that Article 120(k) is not so 

“standardless that it authorizes or encourages seriously 

discriminatory enforcement.” Id. (citations omitted).

Accordingly, we reject the appellant’s facial challenge to 

Article 120(k) on vagueness grounds. We move next to the 

appellant’s vagueness challenge “as-applied” to the facts of his 

case.7

B. As-Applied Vagueness Challenge to Article 120(k)

In 2007, Congress significantly overhauled various sexual 

crimes within the military. Indecent acts with another,

previously recognized as an offense under Article 134, UMCJ, is 

now subject to prosecution under Article 120(k), UCMJ, as an 

indecent act. See MCM (2008 ed.), App. 23 at A23-15. Congress 

imported the President’s long-standing definition of “indecent”

in ¶ 90c in Part IV of the MCM (2005 ed.) into the statutory 

definition of “indecent.”

8 

 

7 Although AOE II is styled as a constitutional challenge on facial vagueness 

grounds, the appellant’s brief contains within the AOE an as-applied 

vagueness challenge. Appellant’s Brief of 16 Dec 2013 at 25-26. We 

interpret the appellant’s AOE to include an as-applied vagueness challenge.

8 Article 120(t)(12) provides that “[t]he term ‘indecent conduct’ means that 

form of immorality relating to sexual impurity which is grossly vulgar, 

obscene, and repugnant to common propriety, and tends to excite sexual desire 

or deprave morals with respect to sexual relations.”

 
9

The elements of an indecent act under Article 120(k) are: 

(a) that the accused engaged in certain conduct; and (b) that 

the conduct was indecent. MCM (2008 ed.), Part IV, ¶ 45b(11). 

The legislative history demonstrates that the term “indecent” in 

Article 120(t)(12) is “the same conduct that has been held to be 

indecent by military appellate courts” in the past. See Sex 

Crimes and the UCMJ: A Report for the Joint Service Committee 

on Military Justice, 261 (2005). While the definition of 

“indecent conduct” in Article 120(t)(12), UCMJ, is slightly 

different than the definition of “indecent” in MCM (2005 ed.), 

Part IV, ¶ 90c, the differences are insignificant.9 

In this case, the military judge convicted the appellant of 

indecent acts under Article 120(k) on the theory that it was 

committed in an “open and notorious” manner. Record at 237. 

The appellant does not take issue with our superior court’s 

prior cases that interpreted indecent acts under Article 134; 

however, he argues that when Congress enacted Article 120(k) 

without adding the terminal element from the Article 134, UCMJ, 

version of indecent acts, the statutory offense of committing an 

indecent act lost its preexisting legal standard. From this the 

appellant argues that the preexisting case law of our superior 

court is inapplicable. We disagree.

First, our superior court interpreted the President’s 

definition of “indecent” for purposes of defining sexual 

activity as opposed to interpreting the terminal element. In 

United States v. Berry, 20 C.M.R. 325 (C.M.A. 1956), the Court 

of Military Appeals held that Article 134, UMCJ, was not 

“intended to regulate the wholly private moral conduct of an 

individual[;] [however, fornication] committed “openly and 

notoriously” was punishable under Article 134. 20 C.M.R. at 330 

(citing CJS, Fornication, § 2a, page 119; 1 Am Jur, Adultery, § 

13, page 687). Forty-three years later, the Court of Appeals 

for the Armed Forces (CAAF) re-affirmed this principle. See 

United States v. Izquierdo, 51 M.J. 421, 422 (C.A.A.F. 1999)

(stating that “[w]e have consistently held that fornication, 

when committed ‘openly and notoriously,’ is an ‘aggravating 

circumstance[] sufficient to state an offense under Article 

134.”) (citations omitted)). In 2013, the CAAF reiterated this 

principle by stating the following: “private consensual sexual 

activity is not punishable as an indecent act absent aggravating 

circumstances[; however a clear] aggravating circumstance is 

 

9 See MCM, Part IV, ¶ 90c (2005 ed.): “‘Indecent’ signifies that form of 

immorality relating to sexual impurity which is not only grossly vulgar, 

obscene, and repugnant to common propriety, but tends to excite lust and 

deprave the morals with respect to sexual relations.”
10

that the sexual activity is open and notorious.” Goings, 72 

M.J. at 205.

Second, the CAAF has already analyzed a conviction under 

Article 120(k) in terms of whether the sexual activity was “open 

and notorious.” See Howard, 72 M.J. at 406 (holding that 

conduct charged under Article 120(k), UMCJ, was not plainly 

“private” when the sexual activity “occurred while in the 

presence of two additional servicemembers”); see also United 

States v. Elhelou, 72 M.J. 404 (C.A.A.F. 2013) (summary 

disposition) (finding Elhelou’s pleas provident when the 

military judge explained that “‘open and notorious’ sexual 

activity is punishable as an indecent act, in violation of

Article 120(k)”); cf. United States v. Tunstall, 72 M.J. 191, 

196 n.6 (C.A.A.F. 2013) (setting aside an Article 120(k) 

conviction but suggesting that notice of the alternative theory 

“open and notorious” conduct could have sustained the 

conviction). 

We find no reason why sexual activity committed in an “open 

and notorious” manner that is clearly applicable to indecent 

acts under Article 134 should not apply with equal force within 

the context of charged sexual activity under Article 120(k). 

To propound his vagueness claim, the appellant provides 

various hypotheticals that may subject a would-be accused to a 

charge of indecent acts. For example, the appellant argues that 

a hypothetical CA’s strongly held religious beliefs may cause 

him to charge a hypothetical accused with committing an indecent 

act under Article 120(k) for having premarital sex. Appellant’s 

Brief at 22-23. Even if the appellant’s hypotheticals seek to 

test the outer limits of the statutory definition of indecent

acts, this matter “is addressed, not by the doctrine of 

vagueness, but by the requirement of proof beyond a reasonable 

doubt.” Williams, 553 U.S. at 306 (citing In re Winship, 397 

U.S. 358, 363 (1970)). Because the appellant’s conduct --

sexual activity conducted “openly and notoriously” -- is, and 

has long been, proscribed conduct under military law, he “cannot 

complain of the vagueness of the law as applied to the conduct 

of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 20 

(2010) (citation and internal quotation marks omitted). 

Because he did not raise his constitutional vagueness claim 

at trial, he forfeited his claim and he has not come close to 

establishing error, let along plain and obvious error. 

Accordingly, we reject the appellant’s as-applied vagueness 
11

challenge and move next to the appellant’s constitutional 

overbreadth challenge.

C. Overbreadth Challenge to Article 120(k)

Next, the appellant argues that Article 120(k) is 

unconstitutionally overbroad. We disagree. 

The overbreadth doctrine articulated by the Supreme Court 

is an outgrowth of the First Amendment. See Williams, 553 U.S. 

at 292. A statute is overbroad if “it prohibits a substantial 

amount of protected speech . . . relative to [its] plainly 

legitimate sweep.” Id. (citations omitted). The Supreme Court 

has severely limited the overbreadth doctrine’s applicability 

and “employed it with hesitation, and then ‘only as a last 

resort.’” New York v. Ferber, 458 U.S. 747, 769 (1982) (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). Additionally, 

the general rule of the overbreadth doctrine holds that a person 

“may not challenge [the] statute on the ground that it may 

conceivably be applied unconstitutionally to others in 

situations not before the Court.” Id. at 767 (citations 

omitted). Finally, application of First Amendment principles 

outlined within the Court’s overbreadth doctrine sufficient for 

standing “must be accorded a good deal less weight in the 

military context.” Levy, 417 U.S. at 760.

We believe that there is a wide range of indecent conduct 

that can be applied to Article 120(k) that is within the 

statute’s “plainly legitimate sweep.” Broadrick, 413 U.S. at 

615. The appellant does not contest this fact. Instead, he 

argues that Article 120(k) is susceptible to situations in which 

the statute proscribes “both protected and criminal conduct.” 

Appellant’s Brief at 29. Additionally, he argues that once 

Congress enacted Article 120(k) and moved it from Article 134, 

this eliminated the preexisting requirement to prove the 

terminal element and now Article 120(k) is susceptible to an 

interpretation in which “any conduct [is] deemed indecent.” Id. 

at 30. The appellant’s arguments appear to confuse the 

overbreadth and vagueness doctrines. The overbreadth doctrine 

primarily exists to restrict overbroad laws that “deter or 

‘chill’ constitutionally protected speech.” Virginia v. Hicks, 

539 U.S. 113, 119 (2003). The appellant does not explain how 

Article 120(k) deters protected speech. See Id. at 124 (stating 

that “[r]arely, if ever, will an overbreadth challenge succeed 

against a law or regulation that is not specifically addressed 

to speech or to conduct necessarily associated with speech (such 

and picketing or demonstrating”)). Even assuming the 
12

appellant’s argument, “[t]he ‘mere fact that [the appellant] can 

conceive of some impermissible applications of [Article 120(k)] 

is not sufficient to render it susceptible to an overbreadth 

challenge.’” Williams, 533 U.S. at 303 (quoting Members of City 

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 

800 (1984)). 

Because the appellant’s challenge concerns “conduct and not 

merely speech,” Broadrick, 413 U.S. at 615, and his potential 

hypotheticals are not applicable to the facts of his case, we 

find that the appellant lacks standing to challenge Article 

120(k) on overbreadth grounds. See Levy, 417 U.S. at 760-61 

(suggesting that although some conduct “may lurk on the fringes” 

of Article 133 and 134 that could be “protected by the First 

Amendment” that is an insufficient reason to extend standing 

within the military context to Captain Levy’s conduct (“urging 

enlisted personnel to refuse to obey orders which might send

them into combat”) because the conduct was unprotected “under 

the most expansive notions of the First Amendment”). 

Assuming arguendo that the appellant has standing to 

challenge Article 120(k), UCMJ, on overbreadth grounds, we find 

the appellant’s hypotheticals unpersuasive because even if true, 

his hypotheticals concern only conduct and are at best 

insubstantial when “judged in relation to [Article 120(k)’s] 

plainly legitimate sweep.” Broadrick, 413 U.S. at 615. 

Accordingly, we reject the appellant’s constitutional 

overbreadth challenge and hold that even assuming he has 

standing that challenge Article 120(k), he has failed in his 

burden to establish plain error. We move next to consider the 

appellant’s as-applied due process challenge to Article 120(k).

 

D. As-Applied Due Process Challenge to Article 120(k)

The appellant argues that, because his conduct represented 

a consensual “threesome,” modern mores and contemporary 

community standards do not consider such conduct either “vulgar, 

obscene, or repugnant to common propriety.” Appellant’s Brief 

at 32-34. We disagree with his premise and argument. We begin 

with his premise. 

Because he was acquitted of the more serious offenses of 

aggravated sexual contact, abusive sexual contact, and wrongful 

sexual contact, he extrapolates from that verdict that the 

sexual acts he committed with BC, the 19-year-old spouse of a 

Lance Corporal, and ED, the 18-year-old spouse of another fellow 

Marine, were, in fact, consensual. This is not necessarily so 
13

because “acquittal on criminal charges does not prove that the 

defendant is innocent; it merely proves the existence of a 

reasonable doubt as to his guilt.” United States v. One 

Assortment of 89 Firearms, 465 U.S. 354, 361 (1984).

Viewed in this context, the appellant’s constitutional due 

process attack loses some of its intellectual vigor. Based on 

our review of the record, we find ample evidence that the 

appellant’s sexual acts with BC and ED do not support the type 

of wholly private consensual three-way sexual liaison he 

attempts to portray. Both ED and BC testified that they were 

not willing participants in the appellant’s strawman “consensual 

threesome.” Rather, the facts support that the appellant 

committed consecutive sexual activity first with BC and then 

ED.10 

Even if we were to accept the appellant’s underlying 

premise, his analysis fails to consider that even viewed in the 

most favorable light to him, this was not a wholly private and 

discreet sexual liaison. It was committed in another Marine’s 

barracks room while that Marine was sleeping on the floor. It 

was committed overseas with two married dependent spouses whose 

husbands were also stationed on Okinawa. See Levy, 417 U.S. at 

758 (stating that “[t]he fundamental necessity for obedience,

and the consequent necessity for imposition of discipline, may 

render permissible within the military that which would be 

constitutionally impermissible outside it”); United States v. 

Priest, 45 C.M.R. 338, 344 (C.M.A. 1972) (emphasizing that 

within the military, restrictions exist “that have no

counterpart in the civilian community”). 

We find that the appellant’s conduct was clearly committed 

in an “open and notorious” manner based on the presence of LCpl 

KS, a non-participant in the appellant’s sexual activity. 

Additionally, the appellant’s conduct created a substantial risk 

it could having been witnessed by others; as to its aftermath, 

LCpl TC (the best friend of BC’s husband) entered LCpl KS’s 

barracks room at BC’s insistence, and witnessed the appellant, 

his trousers undone, stroking ED’s arm.11 Record at 161-62. 

 

10 As part of his interrogation, the appellant stated the following: “[ED] 

woke up while I was trying to have sex with [BC].” PE 20 at 2.

11 When BC hurried down to get LCpl TC, he went up to LCpl KS’s room and 

confronted the appellant, saying: “what the f*** are you doing?” Record at 

167. While he did not remember the appellant’s reply, LCpl TC responded, “I 

don’t care. Get the f*** out of here.” Id. 
14

Because the appellant did not raise his constitutional due 

process claim at trial, he forfeited his claim and he falls far 

short of establishing error, let alone plain and obvious error. 

Accordingly, we reject the appellant’s due process challenge. 

IV. Constitutional Challenges to Article 125

In AOEs IV and V, the appellant, for the first time on 

appeal, makes a broad-based constitutional attack on Article 

125, UCMJ. In AOE IV, he argues that Article 125 is void-forvagueness on its face and unconstitutionally overbroad. 

Additionally, within AOE IV, he argues that we should revisit 

our superior court’s holding in United States v. Marcum12 based 

on recent changes in the law. In AOE V, the appellant makes a 

constitutional vagueness argument as-applied to the facts of his 

case. Because his constitutional attacks are linked and at 

times conflated, we consider each argument in turn. 

Similar to our constitutional analysis in Part III of our 

opinion, we review de novo the appellant’s constitutional 

challenges to Article 125. Marcum, 60 M.J. at 202. Because the 

appellant raises his constitutional claims for the first time on 

appeal, our scope of review is limited to a plain error review. 

See Goings, 72 M.J. at 205. Accordingly, we will analyze the 

appellant’s constitutional challenges to Article 125 beginning 

with his constitutional overbreadth argument. 

A. Overbreadth Challenge to Article 125

We reject the appellant’s constitutional overbreadth 

challenge to Article 125 for the same reasons we rejected his 

similar challenge Article 120(k); he lacks standing. See Part 

III C, supra. Because his conduct of attempted sodomy fits 

squarely within the constitutional parameters of Article 125, 

see Part IV C, infra, he has no standing to argue that the 

statute “may conceivably be applied unconstitutionally to 

others, in other situations not before the Court.” Broadrick, 

413 U.S. at 610 (citations omitted). 

 

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

considered Marcum’s constitutional due process challenge to Article 125, 

UCMJ, in light of Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the 

Supreme Court declared the Texas sodomy law unconstitutional on due process 

grounds having found a liberty interest for “two adults who, with full and 

mutual consent from each other, [to] engage[] in sexual practices common to a 

homosexual lifestyle." Lawrence, 539 U.S. at 578. In Marcum, the CAAF 

conducted a highly contextualized analysis of Article 125 and concluded that 

it was constitutional on due process grounds “as applied to [Marcum].” 

Marcum, 60 M.J. at 208. 
15

Additionally, the appellant cannot demonstrate plain error 

because he fails to demonstrate how his conduct warrants the 

“strong medicine” sufficient to invalidate Article 125 on 

overbreadth grounds. See Hicks, 539 U.S. at 124 (“[r]arely, if 

ever, will an overbreadth challenge succeed against a law or 

regulation that is not specifically addressed to speech or to 

conduct necessarily associated with speech (such and picketing 

or demonstrating”)). Because the appellant has failed to meet 

his burden of establishing plain error, we hold that he 

forfeited his constitutional challenge to Article 125 on 

overbreadth grounds. 

B. Facial Vagueness Challenge to Article 125

The appellant challenges the constitutionality of Article 

125, UCMJ, as void-for-vagueness, both facially and as-applied. 

He argues that the statute is constitutionally vague because it 

fails to provide notice of what conduct is prohibited and it 

fails to provide standards for law enforcement officials. 

Appellant’s Brief at 44. Additionally, he argues that because 

of various changes in the law, we should revisit our superior 

court’s holding in Marcum, 60 M.J. at 198, to the extent that it 

upheld the constitutionality of Article 125, UCMJ. We disagree 

with the appellant’s argument and his analysis and we address 

these arguments in turn.

To succeed on a facial vagueness claim, one must 

demonstrate that the statute in question is vague “‘not in the 

sense that it requires a person to conform his conduct to an 

imprecise but comprehensible normative standard, but rather in 

the sense that no standard of conduct is specified at all.’” 

Levy, 417 U.S. at 755 (quoting Coates v. City of Cincinnati, 402 

U.S. 611, 614 (1971)). In fact, if there is a “‘substantial 

range of conduct’ to which an article of the Uniform Code 

clearly applies, the article’s definition of the offense is not 

fatally deficient, even though an area of uncertainty may 

remain.” United States v. Scoby, 5 M.J. 160, 162-63 (C.M.A. 

1978) (quoting Levy, 417 U.S. at 754-58)).

In Scoby, the CAAF’s predecessor court analyzed Article 125 

and held that it was not unconstitutionally vague on its face. 

Scoby, 5 M.J. at 163; accord United States v. Henderson, 32 M.J. 

941, 945 (N.M.C.M.R. 1991). In addition to the text of the 

statute, notice of proscribed conduct may be established 

“[t]hrough law, regulations, and interpretive material.” Scoby,

5 M.J. at 162; see Vaughan, 58 M.J. at 31 (holding that “fair 

notice” for purposes of evaluating vagueness claims may include 
16

the Manual, “military case law, military custom and usage, and 

military regulations”); see also Article 137, UCMJ (requiring 

explanation of the UCMJ’s punitive articles to every enlisted 

member upon “initial entrance on active duty;”, following 

completion of “six months of active duty”; and, “when the member 

reenlists”).

Based on the plain language of Article 125, and the 

holdings of our superior court, we find that service members of 

ordinary intelligence have “fair notice of what is prohibited.” 

Williams, 553 U.S. at 304. Additionally, we find that Article 

125 is not so “standardless that it authorizes or encourages 

seriously discriminatory enforcement.” Id. (citations omitted). 

We reject the appellant’s facial challenge because if the 

statute in question does not infringe on “First Amendment 

freedoms . . . the vagueness claim must be evaluated as the 

statute is applied to the facts of th[e] case [in question].” 

Chapman v. United States, 500 U.S. 453, 467 (1991) (citing 

United States v. Powell, 423 U.S. 87, 92 (1975)); see also 

United States v. Mazurie, 419 U.S. 544, 550 (1975) (stating that 

“[i]t is well established that vagueness challenges to statutes 

which do not involve First Amendment freedoms must be examined 

in the light of the facts of the case at hand”) (citation 

omitted)). Accordingly, we reject the appellant’s facial 

challenge to Article 125 on vagueness grounds. We move next to 

the appellant’s vagueness challenge “as-applied” to the facts of 

his case.

C. As-Applied Vagueness Challenge to Article 125

In this case, the military judge convicted the appellant of 

attempted sodomy.

13 Based on the military judge’s special 

findings, it was clear that the attempted sodomy, indecent acts 

and adultery were committed in an “open and notorious” manner. 

Record at 239. Not only was ED present when the appellant 

attempted to sodomize BC and vice versa, but also LCpl KS was in 

the same room on the floor right next to the bed. 

Because the appellant engaged in conduct that was clearly

proscribed, he “‘cannot complain of the vagueness of the law as 

 

13 Although the appellant was acquitted of sodomy under Article 125, the 

military judge convicted him of attempted sodomy finding that the appellant 

had the specific intent to commit sodomy with BC and ED, but due to an 

“unexpected intervening circumstance” was unable to complete the offense of 

sodomy. Record at 239. 
17

applied to the conduct of others.’” Humanitarian Law Project, 

561 U.S. at 20 (quoting Hoffman Estates v. Flipside, Hoffman 

Estates Inc., 455 U.S. 489, 495 (1982)). “That rule makes no 

exception for conduct in the form of speech.” Id. (citing Levy, 

417 U.S. at 755-57). Accordingly, we conclude that the 

appellant has no standing to challenge the constitutionality of 

Article 125, UCMJ, on an as-applied vagueness grounds. Assuming 

arguendo that the appellant does have standing, we find the 

appellant’s as-applied vagueness argument unpersuasive. 

D. As-Applied Due Process Challenge to Article 125

As part of his void-for-vagueness challenge, the appellant 

argues that the CAAF’s holding in Marcum should be revisited 

based on recent changes in the law.14 Appellant’s Brief at 42. 

We disagree. 

First, the appellant’s argument mischaracterizes Marcum,

because Marcum did not analyze Article 125 in terms of 

vagueness. Marcum analyzed Article 125 within the context of 

whether enforcement of the statute interfered with the zone of 

liberty interest that the Supreme Court created in Lawrence v. 

Texas, 539 U.S. 558 (2003). Marcum, 60 M.J. at 204-05. The 

holding in Lawrence had nothing to do with a challenge on 

vagueness grounds. Based on the appellant’s argument that we 

revisit Marcum based on intervening changes in the law, we 

believe this argument is more appropriately recast as a 

constitutional due process argument.

In any event, Marcum specifically analyzed the “Lawrence

zone of liberty”15 within the military context and held that 

Lawrence compelled an as-applied, contextual analysis. Id. at 

203-05; see also United States v. Castellano, 72 M.J. 217, 223 

(C.A.A.F. 2013) (holding that Marcum factors, which remove 

sexual activity from Lawrence protected interest scope, must be 

determined by the trier of fact). 

 

14 Specifically, he cites the repeal of 10 U.S.C. § 654 in 2010 as a basis for 

why the holding in Marcum should be revisited. Appellant’s Brief at 42. 

15 By quoting Lawrence, the CAAF articulated this zone of liberty as setting 

contextual boundaries, and as such an as-applied analysis was required: “the 

present case does not involve minors. It does not involve persons who might 

be injured or coerced or who are situated in relationships where consent 

might not easily be refused. It does not involve public conduct or 

prostitution.” Marcum, 60 M.J. at 203 (quoting Lawrence, 539 U.S. at 578). 

Contrary to the appellant’s apparent argument, Lawrence did not hold that 

sodomy was a fundamental constitutional right. Id. at 205. 
18

“Under the doctrine of stare decisis a decision should not 

be overruled without examining intervening events, reasonable 

expectations of servicemembers, and the risk of undermining 

public confidence in the law.” United States v. Boyett, 42 M.J. 

150, 154 (C.A.A.F. 1995) (citation omitted). The Supreme Court 

notes that “[e]ven in constitutional cases, the doctrine carries 

such persuasive force that we have always required a departure 

from precedent to be supported by some special justification.” 

United States v. International Business Machines Corp., 517 U.S. 

843, 856 (1996) (citations and internal quotation marks 

omitted). No such special justification applies here. 

The appellant’s argument that “times have changed,” and 

that the repeal of 10 U.S.C. § 654 constitutes an intervening 

event and special justification for revisiting Marcum, is 

without merit. The CAAF did not rely on 10 U.S.C. § 654 for its 

holding in Marcum.

16

Having rejected the appellant’s invitation to revisit

Marcum, we move next to conduct a de novo fact-specific analysis 

of the appellant’s conduct to ascertain whether his conduct 

falls within the protected liberty interest established by the 

three-pronged analysis outlined in Marcum:

First, was the conduct that the accused was guilty of 

committing of a nature to bring it within the liberty 

interest identified by the Supreme Court? Second, did 

the conduct encompass any behavior or factors 

identified by the Supreme Court as outside the 

analysis in Lawrence? Third, are there additional 

factors relevant solely in the military environment 

that affect the nature and reach of the Lawrence

liberty interest?

Marcum, 60 M.J. at 206-07 (internal citation omitted).

 

In considering the first Marcum step, we note that although 

the Government charged the appellant with various sexual 

offenses based on a theory of non-consent, it did not charge the 

appellant with forcible sodomy. This finding, however, does not 

necessarily support the appellant’s underlying premise that his 

sexual acts with ED and BC represented a freely entered into 

 

16 “Nor, given our determination that Appellant's conduct fell outside the 

liberty interest identified in Lawrence, need we decide what impact, if any, 

10 U.S.C. § 654 would have on the constitutionality of Article 125 as applied 

in other settings.” Marcum, 60 M.J. at 208. 
19

sexual liaison between three willing and consenting adults. In 

fact, our review of the record suggests a contrary conclusion. 

“Unlike Lawrence, in which there was no evidence of force 

whatsoever,” id. at 214 (Crawford, C.J., concurring in the 

result), the facts in this case do not support the appellant’s 

argument of a consensual and free-wheeling rhapsody of sexual 

expression. In any event, we find that the attempted sodomy 

that the appellant engaged in -- regardless of whether one may 

arguably characterize the activity as consensual -- fell outside 

the “Lawrence zone of liberty.” Id. at 208. 

Assuming arguendo that the military judge’s verdict compels 

the conclusion that the appellant’s attempted sodomy satisfies 

the first step in the Marcum analysis and brings the conduct 

within the Lawrence zone of liberty interest, we analyze the 

next step in the Marcum tripartite analysis. Under the 

circumstances of this case, we find an “aggravating 

circumstance” that brings the appellant’s conduct “outside the 

analysis in Lawrence.” Id. at 206-07. 

Based on the military judge’s special findings, it was 

clear that the attempted sodomy, indecent acts, and adultery 

were committed in an “open and notorious” manner. Record at 

237. LCpl KS, who had previously received permission for ED and 

BC to spend the night in her room, was on the floor in her 

barracks room right next to the bed as the appellant attempted 

to sodomize BC and ED. Because the appellant’s conduct, 

attempted sodomy, was committed in an open and notorious manner, 

the appellant’s conduct was outside Lawrence’s protected liberty 

interest. See Lawrence, 539 U.S. at 578 (finding the Texas 

sodomy statute unconstitutional, but declining to identify 

sodomy as a fundamental right and identifying situations 

involving “public conduct” as outside of the zone of liberty); 

cf. Goings, 72 M.J. at 207 (finding no plain error and rejecting 

Lawrence claim within the context of indecent acts under Article 

134, UCMJ, because conduct was “open and notorious”). 

Accordingly, as-applied to the appellant’s conduct, Article 125 

is constitutional.17 

 

17 In addition to the appellant’s attempted sodomy having been attempted in an 

“open and notorious” manner, we find several Marcum factors, unique to the 

military environment that militates against any constitutional protection. 

First, both BC and ED were married to other Marines. Second, the conduct 

took place in LCpl KS’s barracks room in a foreign country. Third, the 

military judge found that the appellant’s adulterous conduct was prejudicial 

to good order and discipline and also service discrediting. Record at 242. 
20

V. Conclusion

The findings and the sentence as approved by the CA are 

affirmed. 

Chief Judge MITCHELL and Judge MCDONALD concur.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court