## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, BERG, and YOB Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant DAVID B. JONES

United States Army, Appellant

ARMY 20090401

Headquarters, United States Army Intel ligence Center of Excellence and Fort
Huachuca Kurt J. Bohn, Military Judge Colonel Karen L. Judkins, Staff Ju dge Advocate (pretrial & addendum) Lieutenant Colonel Joseph A. McCl oskey, Acting Staff Judge Advocate (recommendation)

For Appellant: Colonel Mark Tellitocci, JA; Lieutena nt Colonel Imogene M. Jamison, JA; Lieutenant Colonel Peter Ka geleiry, Jr., JA; Captain Tiffany K. Dewell, JA (on brief).

For Appellee: Major Amber J. Williams, JA ; Major Ellen S. Je nnings, JA; Captain Edward J. Whitford, JA (on brief).

14 December 2011

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

BERG, Judge:

A military judge, sitting as a special court-martia l, convicted appellant, contrary to his plea s, of violating a lawful gene ral regulation and adultery in
violation of Articles 92 and 134, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 892 and 934 (2008) [her einafter UCMJ]. 1 The military judge sentenced appellant to be

1 Appellant was charged at the outset with ten specifications alleging attempted unlawful sexual contact, two violations of a no-contact order, th ree violations of a lawful general regula tion, assault, disord erly conduct, adultery and making a threat to impede an investigation in violation of Articles 80, 90, 92, and 1 34, UCMJ, 10 U.S.C. §§ 880, 890, 892, and 934. The milita ry judge initially found appellant not

(continued . . .)JONES – ARMY 20090401

2 reduced to the grade of Priv ate E-1, confinement for six months, forfeiture of twothirds pay per month for six months, and a bad-conduct discharge. 2 The convening authority corrected the adjudged sentence to reflect reduction to the grade of E-1, confinement for six months, forfeiture of $932.00 in pay per mont h for six months, and a bad-conduct discharge.

This case is before this Court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Appell ant raises four assignments of error, one of which merits
discussion and relief. 3 Because our resolution of that assignment of error results in a
determination that the evidence is insuffi cient to support eith er of appellant’s convictions, we do not re ach the remain ing issues.

BACKGROUND

Appellant, a staff sergeant, was char ged with and convic ted of committing adultery with Specialist (SPC) AJ and of transporting Private E-2 (PV2) ZA, an Initial Entry Training Soldier, in his privately owne d automobile in violation of Training and Doctrine Cmd. Re g. 350-6, Training: Enlist ed Initial Entry Training (IET) Policies and Administration [hereinaft er TRADOC Reg. 350-6 ] (8 May 2007). A single Soldier, appe llant was temporarily assigned to Fort Huachuca as a student, seeking to reclassify his military occupa tional specialty (MOS) from 31B, military policeman, to 35M, in terrogator, as a reenlistment option. Because he had long since completed IET, he was classified as an “MOS-Trainee” (MOS-T) to distinguish him from Soldiers new to military service even though they might be in the same level
classes. We first address the purported regulatory violation.

(continued . . .) guilty of all but one no-c ontact violation, the adul tery specification, and one violation of a lawful general regulation.

2 The confinement and forfeiture components of the sentence initi ally were assessed at eight months. During post-trial pr ocessing, appellant suc cessfully raised a discovery violation by the go vernment before the record of trial was authenticated and the military judge set as ide the remaining no -contact violati on. The military judge reassessed the sentence to six months of confinem ent and the partial
forfeitures noted above, leaving the re duction to Private E- 1 and the bad-conduct discharge intact.

3 IV. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT AS TO SPECIFICATION 2, CHARGE III, VIOLATION OF A GENERAL REGULATION IN VIOLATION OF ARTICLE 92, AND SPECIFICATION 2, CHARGE V, ADULTERY, IN VIOLATION OF ARTICLE 134.JONES – ARMY 20090401

3 DISCUSSION

Equating MOS trainees to permanen t party - grandmothers to toads? 4

To establish guilt for vi olating a lawful general re gulation under Article 92, UCMJ, the government must prove each of the following elements beyond a
reasonable doubt:

(1) That there was in effect a certai n lawful general order or regulation;

(2) That the accused had a duty to obey it; and

(3) That the accused violated or faile d to obey the order or regulation.

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM ], Part IV, para. 16.b.(1).

TRADOC Reg. 350-6, para. 2-3(b) (1) states in pertinent part:

Prohibited relationships. A ny relationship between

permanent party 5 and IET Soldiers not required by the

4 W IKIPEDIA , http://en.wikipedia.or g/wiki/Apples_and_oranges (a Serbian expression akin to the familiar “apples to oranges” idiom in En glish) (last visited Dec. 1, 2011).

5 “Permanent party” is not expressly defined in TRADOC Reg. 350-6, but the Glossary provides the follow ing informative definition:

Cadre All military, permanent pa rty members or civilian personnel that command, superv ise, instruct, train, or directly support IET Soldiers.

The term “permanent party” is referenced at length in housing re gulations and describes those Soldiers assign ed on a permanent rather th an a temporary basis to an
installation. E.g. , Army Reg. 210-50, Installations : Housing Management, para. 3- 29 (3 Oct. 2005). This acc ords with our comm on sense understand ing of the words as distinguishing between traine es of any type temporarily at an installation pending completion of their course work and those Soldiers, such as cadre, who are permanently assigned on orders to such duty station. A ppellant was in a temporary duty status (TDY).JONES – ARMY 20090401

4 training mission is prohibite d IAW AR 600-20, paragraph
4-15. This definiti on includes a nd is not limited to dating IET Soldiers, writing person al letters/emails, having personal telephone co nversations unrelated to the training mission, playing cards, gambling, dancing, entertaining in a personal residences [sic], sharing accommodations in a hotel/motel, transporting in a POV, or any other conduct of a personal or sexual na ture. (Emphasis added).

This regulation was in effect and we assume arguendo that appellant transported PV2 ZA in his person al vehicle on September 13, 20 08. But this issue turns on whether appellant as an MO S-T student had a duty to comply with the charged regulation. We have combed the record of tria l and find no ment ion that appellant
was ever considered permanent party ; indeed the specification explicitly describes appellant as “while in a duty status as a Military Occupational Specialty Trainee .” 6

The government maintains, nonetheles s, that appellan t was subject to TRADOC Reg. 350-6, para. 2-3(b)(1) be cause another paragr aph of the same regulation, para. 3-26(c )(5)(a), states that MOS-T Sold iers’ privileges “are the same as those of permanent part y members of equal grade.” 7 Without citing us to any authority, the government ipso facto argues that privileges of grade equate to status as permanent party, which in this case equates to criminal liabilit y. We refuse to make such a leap or torture the plain mean ing of simple words. The test for legal sufficiency is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Pabon , 42 M.J. 404, 405 (C.A.A.F. 1995). On its face the regulation in questi on applies only to permanent party and we find as a matter of law that appellant’s student status di d not equate to pe rmanent party status

. Appellant was not subject to the charged re gulation and was unde r no duty to obey

6 A different paragraph of TRADOC Reg. 350-6, para. 3-26.c.(5 )(c), specifically addresses the relationship between MOS- T and IET students an d forbids certain
fraternization between them. It does not address tran sporting IET Soldiers in privately owned vehicles.

7 Privileges are described in TRADOC Re g. 350-6, Table 2-2, as a six-phase progression of less restrictive behaviors for IET/AIT students beginning with total control, restriction to compan y area and escort by drill sergeant, and culminating in a final phase of fre edoms “similar to permanent party.” Additionally, para. 3- 26(c)(5)(a) further illuminates the meaning of “privileges” fo r MOS-T Soldiers - “They are treated with the dignity and re spect due their grade.”JONES – ARMY 20090401

5 it; the military judge clearly erred as to this esse ntial element. The evidence is legally insufficient and appellan t is entitled to have the finding of guilt set aside and the charge dismissed.

Not every adultery is pun ishable under the UCMJ.

Relevant facts establis hed that SPC AJ, a marrie d National Gu ard Soldier from Minnesota, was attendin g advanced individual traini ng (AIT) at Fort Huachuca to complete the 35M interrogator school . She was in a different training company from appellant but had met him briefl y when introduced to him by another
noncommissioned officer at a bar in August 2008 . On September 13, 2008, SPC AJ
volunteered for an Oktoberfest event at a park off post where she sold beer and
bratwurst from a stand. She continued to drink with friends after her shift concluded at 5:00 p.m. Later that evening SPC AJ saw appellant in the company of SPC JT, a
male Soldier whom she knew had attended the Defense Language Institute with her
husband. She visited with SPC JT for awhile and talk ed about her husband, but appellant was not part of the conversatio n. SPC AJ then sough t out appellant to
dance.

Around 8:00 p.m. appe llant loaded up SPC AJ and SP C JT in the back seat of his vehicle and drove them away from th e party. Appellant stopped first at a
convenience store so that SPC JT could buy some more beer for himself, then dropped SPC JT at his off-pos t hotel. SPC JT offered to ride further with SPC AJ back to post, but she declined his offer, te lling him that she was “fine.” Once SPC JT departed, SPC AJ moved up to the front seat with appe llant. En route back to post, appellant and SPC AJ st opped in the darkened parki ng lot of a restaurant and engaged in sexual intercourse in the car. Afterward, appellant dropped SPC AJ off
at her barracks. 8

8 At trial, SPC AJ described the events as follows:

SPC AJ: We were around the side because I could see all
the cars and the littl e patio area. Beca use I could see all the people outside of the Buffalo Wild Wings. TC: Were you parked ne xt to other cars?

SPC AJ: No. TC: And what happe ned in the car?
SPC AJ: He had sex with me. TC: Was there any physical or biological th ings that let you know that sexual inte rcourse had occurred? SPC AJ: Yes, Sir.
TC: What was that?

(continued . . .)JONES – ARMY 20090401

6 At trial SPC AJ testified that her reco llection of events was clouded because
of the amount of alcohol she had consumed (“I was in and out”) but she always wore her wedding ring, which she held up to display while testifying. She could not recall that she ever told appellant that she was married. Alt hough SPC JT knew that SPC AJ was married, he testifie d that he never me ntioned that fact to appellant. Specialist JT also did not notice whet her SPC AJ was wear ing a wedding ring. 9
When asked by trial counsel where SPC AJ’s husband was “currently” (i.e., at the time of trial in May 2009), SP C JT stated “curren tly, he is in Iraq .” There was no
evidence as to the husband’ s military status or whereabouts in September 2008, the
time of the alle ged offense.

Appellant argued in his Ru le for Courts-Martial 91 7 motion for a finding of not guilty that the government produced no evidence abou t prejudice to good order and discipline or service-discrediting conduct. Trial counsel’s response was as
follows:

As far as Specification 2, “wrongfully having sexual intercourse with Private [AJ], a married woman not his wife.” We heard evidence that her husband is in Iraq. He’s a deployed Soldier. Ce rtainly the government would be able to argue that the conduct into [sic] itself is service discrediting, almost per se. It’s certainly prejudice [sic] to good order and discipline.

(continued . . .) SPC AJ: There was ejaculate in side of me after the fact, and it was in my unde rwear and my pants.
TC: And what ha ppened after that? SPC AJ: After the parking lot? TC: Yes, sorry.
SPC AJ: Then we went back to post and he dropped me off at my barracks.

9 Appellant testified at trial that he did not know SPC AJ was married. He said that she came up behind him at the Oktoberfes t party, put her arms around his waist, and
asked him to dance. He admi tted that they had sexual intercourse. He never noticed a wedding ring.JONES – ARMY 20090401

7 Trial counsel repeated this argument in clos ing with one significant change in tense, contending that adulte ry “on its face, is prejudicia l to good order and discipline, especially in this case, Your Honor. The husband was in Iraq.” 10

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

(1) That the accused wrongfully had sexual intercourse with a certain person;

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

(3) That, under the circumstances, th e conduct of the ac cused was to the prejudice of good orde r and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

MCM , Part IV, para. 62.b.

We review for factual sufficiency de novo. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). Our test is “whether, after wei ghing the evidence in
the record of trial and ma king allowances for not ha ving personally observed the witnesses, [we] are [ourselv es] convinced of the accused’ s guilt beyond a reasonable
doubt.” United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987). It is to the prejudice of good order and discipline prong of the third element that we direct our
attention.

We discount entirely th e government’s argument below that SPC AJ’s husband was deployed at th e time of the adulterous c onduct; that is simply a
mischaracterization of the evidence. No evidence was offered as to the husband’s whereabouts or his military status in September 2008. Th ere was no evidence whatsoever produced by the government as to the impact of this adulterous episode on individuals, units or the training mission at Fort Hu achuca. We ca nnot indulge the government’s suggestion that the conduct was presumptively prejudicial as this

10 The military judge evidentl y gave trial counsel’s out side-the-record argument some credence. In a post-t rial Article 39a se ssion before a diffe rent military judge
convened to address whether the militar y judge made an in appropriate comment during a “bridge-the-gap” session suggesti ng that appellant should have been charged with sexual assault, the military judge testified, “He wasn’t charged with sexual assault, I didn ’t find him guilty of sexual assault. I never sentenced him for sexual assault. He was charged with adul tery with another So ldier. . . . Who was
married. Whose hu sband was in Iraq.”JONES – ARMY 20090401

8 would violate due process. See Sandstrom v. Montana , 442 U.S. 510 (1979) (the presumption of innoc ence applies to each element of a crime and proof of one element may not conclusively establ ish proof as to another element).

We are mindful that the scope of adul tery under the UCMJ has narrowed over the past decade as a result of the Presid ent’s Executive Order No. 13,262, 67 F.R. 18773, 18778 (2002); United States v. Jonsson , 67 M.J. 624, 626 (C.G. Ct. Crim. App. 2009). “To constitute an offense under the UCMJ, th e adulterous conduct must either be directly prejudicial to good order and discipline or service di screditing.
Adulterous conduct that is di rectly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrim ental to the authority or stat ure of or respect toward a
servicemember.” MCM , Part IV, ¶ 62.c.(2).

Appellant also raises for the first time on appeal the affi rmative defense of
mistake of fact as to SPC AJ ’s marital status although he did assert at trial his lack of knowledge that SPC AJ was married when they engaged in in tercourse on the one
occasion. Nonetheless we find this defense was rais ed by the evidence and it became incumbent upon the government to prove beyond a reasona ble doubt that the
belief was unreasonabl e or not honest. MCM , Part IV, ¶ 62.c.(4). It is evident that no one expressly told appellant that SPC AJ was married, to incl ude SPC AJ herself. She initiated contact with appellant by as king him to dance. When SPC JT offered to escort her back to post, she declined his company, stating th at she was fine and
she moved to the front seat of appellant’s vehicle on her own. Within a few minutes she was having sex with appellant. The go vernment suggests that it is enough that SPC AJ wore a ring on her fing er and brandished it at trial, even though there was nothing to suggest that appe llant or anyone el se saw it the night of September 13, 2008. Finally, the government ’s contention that appellant should have inquired as to
her marital status also fails. No such duty exis ts under law.

We give due deference to the military judge who assessed the relative credibility of the witn esses, but we also recognize th at the military ju dge mistakenly
relied on trial counsel’s asse rtion that SPC AJ’s husband wa s deployed at the time of
the ostensible offense. Gi ven the narrowed scope of criminalized adultery, the paucity of any evidence that this instance of adultery was directly prejudicial to good order and discipline, and appellant’s reasonab le, and non-frivolo us assertion of mistake of fact, we are left unconvinced that the govern ment has proven its case beyond a reasonable doubt. Consistent wi th our responsibility under Article 66(c), UCMJ, to affirm “only such fi ndings as we find correct in law and fact, on the basisJONES – ARMY 20090401

9 of the entire record, should be approved,” we set aside the findi ngs of guilty and order that the charges and specifications be dismissed. 11

DECISION

The findings of guilty of Specificat ion 2, Charge III an d Specification 2, Charge V are set aside and those charges and specifications are dismissed. All rights, privileges, and property of which ap pellant has been depr ived by virtue of that portion of his sentence set aside by this decision are ordered restored.

Senior Judge KERN and Judge YOB concur.

FOR THE COURT:

JOANNE P. TETREAULT ELDRIDGE Deputy Clerk of Court

11 We recognize that our high er court has recently held th at “proof of the conduct
itself may be sufficient” evidence of the term inal elements in an Article 134 prosecution. United States v. Phillips , 70 M.J. 161, 163, 16 6-67 (C.A.A.F. 2011) (possession of actual child pornography). Beca use we resolve th is case under a factual sufficiency standard pursuant to Ar ticle 66(c), UCMJ, we need not confront the tension between a legal sufficiency anal ysis and the President’s Executive Order No. 13,262, expressly narrowing th e reach of criminal adultery.