UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, BERG,1

 and KRAUSS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant JAMIL V. WILLIAMS 

United States Army, Appellant 

ARMY 20090619 

Headquarters, III Corps and Fort Hood 

Gregory A. Gross, Military Judge 

Lieutenant Colonel Anthony T. Febbo, Acting Staff Judge Advocate 

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Barbara A. 

Snow-Martone, JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant Colonel 

Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Barbara A. SnowMartone, JA (reply brief). 

For Appellee: Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain 

Daniel H. Karna, JA (on brief). 

21 December 2011 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BERG, Judge: 

A panel of officers and enlisted members, sitting as a general court-martial, 

convicted appellant, contrary to his pleas, of absence without leave terminated by 

apprehension, willfully disobeying a superior commissioned officer, violation of a 

lawful general regulation, false official statement, consensual sodomy, assault 

consummated by a battery, adultery, and obstructing justice, in violation of Articles 

86, 90, 92, 107, 125, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 

 

1

 Judge BERG took final action in this case while on active duty. 
WILLIAMS—ARMY 20090619 

2 

886, 890, 892, 907, 925, 928, and 934 (2008) [hereinafter UCMJ]. See Manual for 

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

and 96a.b. The court sentenced appellant to a bad-conduct discharge, confinement 

for nine months, forfeiture of all pay and allowances, and reduction to the grade of 

E1. The convening authority approved the adjudged sentence and credited appellant 

with 116 days of pretrial confinement against the sentence to confinement. 

This case is before this court for review pursuant to Article 66, UCMJ. 

Appellant raises one assignment of error which challenges the constitutionality of 

his sodomy conviction2

 and personally submits matters pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982). We also note that the Article 134 

specifications do not formally allege the terminal elements of prejudice to good 

order and discipline or service discrediting conduct. See United States v. Fosler, 70 

M.J. 225 (C.A.A.F. 2011). The issues merit discussion but no relief. 

 

BACKGROUND 

 Appellant met Ms. A.F. in an off-post bar near Fort Hood, Texas. At the 

outset appellant learned from Ms. A.F. that she was a civilian married to a soldier 

deployed to Iraq and that she was nineteen years old. Appellant was twenty-five 

years old and married as well. Nonetheless, they ended up returning to her 

apartment and “cuddling” although they did not have sexual relations that night. 

Thereafter they engaged in frequent sexual intercourse at Ms. A.F.’s apartment and 

at appellant’s barracks room as well as oral sodomy and at least two incidents of 

anal sodomy. The relationship became progressively violent, both in terms of 

arguably consensual “rough sex” and clearly non-consensual pummeling by 

appellant on Ms. A.F. Appellant fueled these behaviors, providing himself and the 

under-aged (for alcohol consumption) Ms. A.F. with copious amounts of straight 

vodka. 

Matters came to a head when appellant, after an evening in his barracks room 

in which he anally sodomized Ms. A.F. out of a concern that she had contracted a 

 

2

 APPELLANT’S CONSENSUAL SODOMY WITH MS. A.F., A CIVILIAN WITH 

WHOM APPELLANT HAD AN INTIMATE RELATIONSHIP, FELL ENTIRELY 

WITHIN THE LIBERTY INTERESTS ESTABLISHED IN LAWRENCE V. TEXAS. 

THEREFORE, APPELLANT’S CONVICTION OF CHARGE II MUST BE SET 

ASIDE AND HIS SENTENCE REASSESSED. 
WILLIAMS—ARMY 20090619 

3 

vaginal sexually transmitted disease, sent her out to fetch him breakfast.3 Ms. A.F. 

returned with breakfast for appellant and then went about cleaning up broken glass 

and “puke in the bathroom” from the night before. After a brief argument, appellant 

became enraged with Ms. A.F. and choked her, asking, “Why shouldn’t I kill you?” 

Appellant then slapped Ms. A.F. and punched her in the mouth. Ms. A.F. escaped 

from him and returned to her apartment but appellant managed to beat her there. 

Ms. A.F.’s roommate distracted appellant while Ms. A.F. hurriedly locked herself in 

her room. Ms. A.F. called civilian police who responded, took statements, and 

directed appellant to leave. Ms. A.F. later contacted Fort Hood authorities. 

Appellant received a no-contact order from his command and was called into 

the Criminal Investigation Command (CID) for questioning. Appellant denied 

having any sexual relations with Ms. A.F. Just after he told CID about disposing of 

his bedding in a dumpster, appellant was confronted with CID’s contemporaneous 

recovery of his bedding from the back of his car pursuant to a search authorization. 

Appellant reacted by immediately fleeing from the CID office on foot and leaving 

Fort Hood.4 During his unauthorized absence, appellant repeatedly contacted Ms. 

A.F. in an effort to get her to recant her allegations of assault and forcible sodomy. 

With Ms. A.F.’s connivance, appellant was apprehended by civilian police at a motel 

in Temple, Texas a few days later and returned to military control. 

 

LAW AND DISCUSSION 

Constitutionality of Appellant’s Sodomy Conviction 

 Appellant argues for the first time on appeal that the act of anal sodomy 

committed in his barracks room fell within the substantive due process protections 

announced in Lawrence v. Texas, 539 U.S. 558 (2003). We use an “as applied” 

approach under the test announced by our higher court in United States v. Marcum, 

60 M.J. 198, 205–207 (C.A.A.F. 2004). Analytically, we consider three questions: 

 

 

3

 Ms. A.F. testified that the anal sodomy was not consensual and occurred after she 

passed out from drinking vodka then awakened to find appellant penetrating her 

anus. The panel members found appellant not guilty of forcible sodomy but guilty 

of the lesser included offense of sodomy. This conviction is the basis for appellant’s 

assignment of error. 

4

 At trial the government established the presence of appellant’s and Ms. A.F.’s 

DNA in numerous semen stains on the bedding. 
WILLIAMS—ARMY 20090619 

4 

First, was the conduct that the accused was found guilty of a nature to bring it 

within the liberty interest identified by the Supreme Court? Second, did the 

conduct encompass any behavior or factors 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? 

Id. at 206-207 (internal citation omitted).5

The panel found appellant guilty of sodomy. We assume without deciding 

that although the conduct took place on-post in appellant’s barracks room, it 

occurred in private. We must accept the panel’s general verdict that it was not 

forcible.6 This answers the first question favorably to the appellant. 

 Whether appellant’s conduct implicates behavior that the Supreme Court 

identified as outside of Lawrence’s holding is a much more troubling question for 

appellant. One of the non-protected areas involves “persons who might be injured or 

coerced or who are situated in relationships where consent might not easily be 

refused,” Marcum, 60 M.J. at 207 (citing Lawrence, 539 U.S. at 578). Ms. A.F. 

testified that the anal penetration was painful and that appellant plied her with more 

vodka to secure her acquiescence after she protested that he stop. Additionally the 

entire relationship was overlain with an increasing level of physical abuse directed 

at subordinating the teenager to appellant’s control. We find that the act of anal 

sodomy occurred in the context of a repressive, brutal relationship utterly distinct 

from the consensual and pacific consorting present in Lawrence. 

 In addition, appellant’s conduct clearly falls within the exception of the third 

Marcum question addressing unique military factors intertwined with the conduct. 

Appellant engaged in anal sodomy knowing that it was also adulterous and that Ms. 

A.F. was the young spouse of a deployed soldier. The conduct occurred on-post in 

appellant’s barracks room. The conduct occurred after appellant illegally provided 

 

5

 Appellant makes a related claim, also raised for the first time on appeal, that the 

panel should have been instructed regarding these Marcum factors. We agree with 

the Air Force Court of Criminal Appeals that such factors implicate questions of 

law, not findings of fact on elements of the offense, and failure to give instructions 

on them, sua sponte, was not an abuse of discretion. See United States v. Harvey, 67 

M.J. 758, 763 (A.F. Ct. Crim. App. 2009). 

6

 This contrasts with our recent opinion in United States v. Truss, 70 M.J. 545 (Army 

Ct. Crim. App. 2011). In that case the military judge in a bench trial found the 

accused not guilty beyond a reasonable doubt of forcible sodomy but made special 

findings, notwithstanding the verdict, that the accused was guilty of a sodomy that 

was not consensual either. Truss, 70 M.J. at 548. 
WILLIAMS—ARMY 20090619 

5 

the underage Ms. A.F. with alcoholic beverages in direct violation of lawful 

regulations. We find under the second and third Marcum factors that appellant’s 

conduct “fell outside of any liberty interest recognized in Lawrence and was 

appropriately regulated as a matter of military discipline under Article 125.” United 

States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F. 2004). 

Whether the Article 134 Specifications Allege an Offense 

Although not raised by appellant it is evident to us that Charge IV and its 

Specification and Specification 1 of Additional Charge V do not allege the terminal 

elements because they do not by words allege 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. UCMJ art. 134, 

cls. 1, 2, and 3. See 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, 

70 M.J. at 230. 

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 

construed to embrace [the] terminal element.” Roberts, __ M.J. at ___, slip op. at 5; 

United States v.Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986). Therefore, a charge 

and specification not challenged at trial, 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, 21 M.J. 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)). 

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

or Specification 1 of Additional Charge V 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 charges set forth a violation of Article 134, UCMJ, and the 

specifications detail the date, location, the identity of the participants, their 

pertinent status, and the wrongful acts. See, e.g., Dear, 40 M.J. at 197 (holding a 

maltreatment specification provided notice because “it set[] forth the Article of the 
WILLIAMS—ARMY 20090619 

6 

Code, name of the victim, the time frame of the offense, and the comments alleged 

to have been made by appellant”). The Specification of Charge IV identifies that 

appellant was a married Soldier and the co-actor, Ms. A.F., was a married woman 

not his wife and that they unlawfully engaged in sexual intercourse. Specification 1 

of Additional Charge V again identifies appellant and Ms. A.F. and alleges that 

appellant tried to persuade Ms. A.F. to recant her statements to CID, provide CID 

with false oral and written statements and tell them that her claim of forcible 

sodomy was a misunderstanding, never occurred, and that she no longer would 

cooperate with the investigation. 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 charges and specifications against him. The military judge properly 

instructed the panel members, without objection, as to the requirements of proof of 

the terminal elements regarding each Article 134, UCMJ, specification. In 

vigorously challenging all of the allegations, appellant also specifically argued the 

insufficiency of proof regarding the terminal element on the adultery specification, 

stating, “[g]ot to have some additional proof to establish that additional 

requirement.” 

We hold that neither the adultery charge nor the obstruction of justice charge 

was so obviously defective that it could not be reasonably construed to embrace the 

terminal elements. 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 Specification states an offense as does Specification 1 

of Additional Charge V. 

CONCLUSION 

On consideration of the entire record, including the issues personally raised 

by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we 

hold the findings of guilty and sentence as approved by the convening authority 

correct in law and fact. Accordingly, the findings of guilty and the sentence are 

AFFIRMED. 

Senior Judge JOHNSON and Judge KRAUSS concur. 

 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: