UNITED STATES ARMY COURT 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 Intelligence Center of Excellence and Fort 

Huachuca 

Kurt J. Bohn, Military Judge 

Colonel Karen L. Judkins, Staff Judge Advocate (pretrial & addendum) 

Lieutenant Colonel Joseph A. McCloskey, Acting Staff Judge Advocate 

(recommendation) 

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

Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Tiffany K. 

Dewell, JA (on brief). 

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain 

Edward J. Whitford, JA (on brief). 

14 December 2011 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BERG, Judge: 

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

contrary to his pleas, of violating a lawful general regulation and adultery in 

violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 

and 934 (2008) [hereinafter 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, three violations of a 

lawful general regulation, assault, disorderly conduct, adultery and making a threat 

to impede an investigation in violation of Articles 80, 90, 92, and 134, UCMJ, 10 

U.S.C. §§ 880, 890, 892, and 934. The military judge initially found appellant not 

(continued . . .) 
JONES – ARMY 20090401 

2 

reduced to the grade of Private 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 month 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. Appellant 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 insufficient to support either of appellant’s 

convictions, we do not reach the remaining issues. 

 

BACKGROUND 

 Appellant, a staff sergeant, was charged with and convicted of committing 

adultery with Specialist (SPC) AJ and of transporting Private E-2 (PV2) ZA, an 

Initial Entry Training Soldier, in his privately owned automobile in violation of 

Training and Doctrine Cmd. Reg. 350-6, Training: Enlisted Initial Entry Training 

(IET) Policies and Administration [hereinafter TRADOC Reg. 350-6] (8 May 2007). 

A single Soldier, appellant was temporarily assigned to Fort Huachuca as a student, 

seeking to reclassify his military occupational specialty (MOS) from 31B, military 

policeman, to 35M, interrogator, 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-contact violation, the adultery specification, and one 

violation of a lawful general regulation. 

2

 The confinement and forfeiture components of the sentence initially were assessed 

at eight months. During post-trial processing, appellant successfully raised a 

discovery violation by the government before the record of trial was authenticated 

and the military judge set aside the remaining no-contact violation. The military 

judge reassessed the sentence to six months of confinement and the partial 

forfeitures noted above, leaving the reduction 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 permanent party - grandmothers to toads?4

 To establish guilt for violating a lawful general regulation under Article 92, 

UCMJ, the government must prove each of the following elements beyond a 

reasonable doubt: 

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

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

(3) That the accused violated or failed 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. Any relationship between 

permanent party5 and IET Soldiers not required by the 

 

4

 WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian 

expression akin to the familiar “apples to oranges” idiom in English) (last visited 

Dec. 1, 2011). 

5

 “Permanent party” is not expressly defined in TRADOC Reg. 350-6, but the 

Glossary provides the following informative definition: 

Cadre 

All military, permanent party members or civilian 

personnel that command, supervise, instruct, train, or 

directly support IET Soldiers. 

The term “permanent party” is referenced at length in housing regulations and 

describes those Soldiers assigned on a permanent rather than a temporary basis to an 

installation. E.g., Army Reg. 210-50, Installations: Housing Management, para. 3-

29 (3 Oct. 2005). This accords with our common sense understanding of the words 

as distinguishing between trainees of any type temporarily at an installation pending 

completion of their coursework and those Soldiers, such as cadre, who are 

permanently assigned on orders to such duty station. Appellant was in a temporary 

duty status (TDY). 
JONES – ARMY 20090401 

4 

training mission is prohibited IAW AR 600-20, paragraph 

4-15. This definition includes and is not limited to dating 

IET Soldiers, writing personal letters/emails, having 

personal telephone conversations 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 nature. (Emphasis added). 

This regulation was in effect and we assume arguendo that appellant transported 

PV2 ZA in his personal vehicle on September 13, 2008. But this issue turns on 

whether appellant as an MOS-T student had a duty to comply with the charged 

regulation. We have combed the record of trial and find no mention 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, nonetheless, that appellant was subject to 

TRADOC Reg. 350-6, para. 2-3(b)(1) because another paragraph of the same 

regulation, para. 3-26(c)(5)(a), states that MOS-T Soldiers’ privileges “are the same 

as those of permanent party 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 liability. We refuse to 

make such a leap or torture the plain meaning 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 essential 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 question applies only to permanent party and we find as a matter of 

law that appellant’s student status did not equate to permanent party status. 

Appellant was not subject to the charged regulation and was under 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 and forbids certain 

fraternization between them. It does not address transporting IET Soldiers in 

privately owned vehicles. 

7

 Privileges are described in TRADOC Reg. 350-6, Table 2-2, as a six-phase 

progression of less restrictive behaviors for IET/AIT students beginning with total 

control, restriction to company area and escort by drill sergeant, and culminating in 

a final phase of freedoms “similar to permanent party.” Additionally, para. 3-

26(c)(5)(a) further illuminates the meaning of “privileges” for MOS-T Soldiers - 

“They are treated with the dignity and respect due their grade.” 
JONES – ARMY 20090401 

5 

it; the military judge clearly erred as to this essential element. The evidence is 

legally insufficient and appellant is entitled to have the finding of guilt set aside and 

the charge dismissed. 

Not every adultery is punishable under the UCMJ. 

 Relevant facts established that SPC AJ, a married National Guard Soldier 

from Minnesota, was attending advanced individual training (AIT) at Fort Huachuca 

to complete the 35M interrogator school. She was in a different training company 

from appellant but had met him briefly 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 talked about her husband, but 

appellant was not part of the conversation. SPC AJ then sought out appellant to 

dance. 

 Around 8:00 p.m. appellant loaded up SPC AJ and SPC JT in the back seat of 

his vehicle and drove them away from the 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-post hotel. SPC JT offered to ride further with SPC AJ 

back to post, but she declined his offer, telling him that she was “fine.” Once SPC 

JT departed, SPC AJ moved up to the front seat with appellant. En route back to 

post, appellant and SPC AJ stopped in the darkened parking 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 little patio area. Because I could see all 

the people outside of the Buffalo Wild Wings. 

TC: Were you parked next to other cars? 

SPC AJ: No. 

TC: And what happened in the car? 

SPC AJ: He had sex with me. 

TC: Was there any physical or biological things that let 

you know that sexual intercourse had occurred? 

SPC AJ: Yes, Sir. 

TC: What was that? 

(continued . . .) 
JONES – ARMY 20090401 

6 

At trial SPC AJ testified that her recollection 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. Although SPC JT knew that SPC 

AJ was married, he testified that he never mentioned that fact to appellant. 

Specialist JT also did not notice whether SPC AJ was wearing 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), SPC JT stated “currently, he is in Iraq.” There was no 

evidence as to the husband’s military status or whereabouts in September 2008, the 

time of the alleged offense. 

Appellant argued in his Rule for Courts-Martial 917 motion for a finding of 

not guilty that the government produced no evidence about 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. Certainly 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 inside of me after the fact, 

and it was in my underwear and my pants. 

TC: And what happened 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 Oktoberfest party, put her arms around his waist, and 

asked him to dance. He admitted that they had sexual intercourse. He never noticed 

a wedding ring. 
JONES – ARMY 20090401 

7 

Trial counsel repeated this argument in closing with one significant change in tense, 

contending that adultery “on its face, is prejudicial to good order and discipline, 

especially in this case, Your Honor. The husband was in Iraq.”10

 To establish guilt for adultery under Article 134, UCMJ, the government must 

prove each of the following elements beyond a reasonable doubt: 

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

(2) That, at the time, the accused or the other person was married to someone 

else; and 

(3) That, under the circumstances, the conduct of the accused was to the 

prejudice of good order 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 weighing the evidence in 

the record of trial and making allowances for not having personally observed the 

witnesses, [we] are [ourselves] 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 the government’s argument below that SPC AJ’s 

husband was deployed at the time of the adulterous conduct; 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. There 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 Huachuca. We cannot indulge 

the government’s suggestion that the conduct was presumptively prejudicial as this 

 

10 The military judge evidently gave trial counsel’s outside-the-record argument 

some credence. In a post-trial Article 39a session before a different military judge 

convened to address whether the military judge made an inappropriate comment 

during a “bridge-the-gap” session suggesting 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 adultery with another Soldier. . . . Who was 

married. Whose husband was in Iraq.” 
JONES – ARMY 20090401 

8 

would violate due process. See Sandstrom v. Montana, 442 U.S. 510 (1979) (the 

presumption of innocence applies to each element of a crime and proof of one 

element may not conclusively establish proof as to another element). 

We are mindful that the scope of adultery under the UCMJ has narrowed over 

the past decade as a result of the President’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, the adulterous conduct must 

either be directly prejudicial to good order and discipline or service discrediting. 

Adulterous conduct that is directly prejudicial includes conduct that has an obvious, 

and measurably divisive effect on unit or organization discipline, morale, or 

cohesion, or is clearly detrimental to the authority or stature of or respect toward a 

servicemember.” MCM, Part IV, ¶ 62.c.(2). 

 

Appellant also raises for the first time on appeal the affirmative 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 intercourse on the one 

occasion. Nonetheless we find this defense was raised by the evidence and it 

became incumbent upon the government to prove beyond a reasonable doubt that the 

belief was unreasonable or not honest. MCM, Part IV, ¶ 62.c.(4). It is evident that 

no one expressly told appellant that SPC AJ was married, to include SPC AJ herself. 

She initiated contact with appellant by asking him to dance. When SPC JT offered 

to escort her back to post, she declined his company, stating that 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 government suggests that it is enough that 

SPC AJ wore a ring on her finger and brandished it at trial, even though there was 

nothing to suggest that appellant or anyone else 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 exists under law. 

 

 We give due deference to the military judge who assessed the relative 

credibility of the witnesses, but we also recognize that the military judge mistakenly 

relied on trial counsel’s assertion that SPC AJ’s husband was deployed at the time of 

the ostensible offense. Given 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 reasonable, and non-frivolous assertion of 

mistake of fact, we are left unconvinced that the government has proven its case 

beyond a reasonable doubt. Consistent with our responsibility under Article 66(c), 

UCMJ, to affirm “only such findings as we find correct in law and fact, on the basis 
JONES – ARMY 20090401 

9 

of the entire record, should be approved,” we set aside the findings of guilty and 

order that the charges and specifications be dismissed.11 

 

DECISION 

The findings of guilty of Specification 2, Charge III and Specification 2, 

Charge V are set aside and those charges and specifications are dismissed. All 

rights, privileges, and property of which appellant has been deprived 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 higher court has recently held that “proof of the conduct 

itself may be sufficient” evidence of the terminal elements in an Article 134 

prosecution. United States v. Phillips, 70 M.J. 161, 163, 166-67 (C.A.A.F. 2011) 

(possession of actual child pornography). Because we resolve this case under a 

factual sufficiency standard pursuant to Article 66(c), UCMJ, we need not confront 

the tension between a legal sufficiency analysis and the President’s Executive Order 

No. 13,262, expressly narrowing the reach of criminal adultery.