CORRECTED COPY 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, HAGLER, and SCHASBERGER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant TRAVIS HERNANDEZ 

United States Army, Appellant 

ARMY 20160558 

Headquarters, 82d Airborne Division 

Deidra J. Fleming, Military Judge 

Lieutenant Colonel Susan K. McConnell, Acting Staff Judge Advocate 

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. 

Simpson, JA; Captain Heather M. Martin, JA (on brief); Lieutenant Colonel Tiffany 

Pond, JA; Major Todd W. Simpson, JA; Captain Heather M. Martin, JA (on reply 

brief). 

For Appellee: Colonel Tania M. Martin, JA; Major Austin L. Fenwick, JA; Captain 

Joshua Banister, JA (on brief). 

31 January 2019 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

BURTON, Senior Judge: 

 A panel composed of officers and enlisted members, sitting as a general courtmartial, convicted appellant, contrary to his pleas, of one specification of 

maltreatment and one specification of abusive sexual contact in violation of Articles 

93 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 893 and 920 (2012) 

(UCMJ). Additionally, pursuant to his plea, appellant was convicted of one 

specification of violating a lawful general regulation, in violation of Article 92, 
HERNANDEZ— ARMY 20160558 

2 

UCMJ.1 The convening authority approved the adjudged sentence of a dishonorable 

discharge, confinement for 90 days, forfeiture of $1,566.90 pay per month for three 

months, and reduction to the grade of E-1. 

We review this case under Article 66, UCMJ. Appellant raises three 

assignments of error: none merit relief, but one merits discussion.2 Specifically, 

appellant asserts for the first time on appeal that the military judge erred when she3

failed to instruct the panel on the proper mens rea for the offense of abusive sexual 

contact. Even assuming arguendo appellant is correct, we find that he cannot 

establish material prejudice to a substantial right. 

BACKGROUND 

Appellant was Private First Class (PFC) PR’s supervisor. Once appellant and 

PFC PR both self-identified as being homosexual, they became friends and began to 

socialize outside of work. According to appellant, they cuddled, watched movies 

together, shared intimate details about previous relationships, and had seen each 

other naked.4 Appellant testified that nothing sexual had ever happened between 

himself and PFC PR. 

 On 11 February 2016, appellant and PFC PR were roommates on a training 

exercise. After a cookout, PFC PR went into the restroom to take a shower. 

Appellant subsequently entered the restroom to urinate and started a conversation 

with PFC PR. During this conversation, appellant believed it was time to make his 

move. According to appellant, he entered the shower uninvited and touched PFC 

PR’s penis. When PFC PR pushed appellant’s hand away and exited the shower, 

appellant did not attempt to touch him again. When PFC PR texted appellant about 

his actions in the shower, appellant apologized. At trial, appellant was asked about 

why he apologized, and he explained, “Because I was like, ‘My bad . . . I thought we 

were on the same page.’” 

 At the close of the evidence, the military judge held an Article 39(a), UCMJ 

session to discuss the findings instructions. With input from the parties, the military 

 

1

 Appellant was found not guilty of one specification of maltreatment and one 

specification of indecent exposure in violation of Articles 93 and 120c, UCMJ. 

2

 We have considered the matters personally asserted by appellant pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and found that they lack merit. 

3

 Corrected 

4

 Private First Class PR denies these interactions. 
HERNANDEZ— ARMY 20160558 

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judge concluded she would give the standard Military Judges’ Benchbook5

instructions on abusive sexual contact, including note five (“by causing bodily 

harm”); note seven (“lack of consent as an element”); note twelve (“mistake of fact 

as to consent in cases involving bodily harm where lack of consent is an element”); 

and note thirteen (“voluntary intoxication and mistake of fact as to consent in cases 

involving bodily harm where lack of consent is an element”). 

Prior to providing the instructions to the panel, the military judge specifically 

inquired whether either party had any concerns with the proposed findings 

instructions. Neither party had any concerns. The military judge then instructed the 

panel that to convict appellant of abusive sexual contact, they had to be convinced 

beyond a reasonable doubt of the following: 

One, that at or near Fort Hood, Texas on or about 11 

February 2016, the accused committed a sexual contact 

upon [PFC PR], to wit: grabbing [PFC PR]’s penis with 

his hand; 

Two, that the accused did so by causing bodily harm to 

[PFC PR], to wit; grabbing [PFC PR]’s penis with his 

hand without [PFC PR]’s consent; and 

Three, that the accused did so without the consent of [PFC 

PR]. 

The military judge further instructed the panel concerning the sexual contact: 

“Sexual contact” means: (A) touching, or causing another 

person to touch, either directly or indirectly or through the 

clothing, the genitalia, anus, groin, breast, inner thigh, or 

buttocks of any person, with an intent to abuse, humiliate, 

or degrade any person; or (B) any touching, or causing 

another person to touch, either directly or through the 

clothing, any body part of any person, if done with an 

intent to arouse or gratify the sexual desire of any person. 

These instructions mirrored the template in the Benchbook and the statutory 

language of Article 120, UCMJ. Based on the government’s charging decision, the 

military judge further explained to the panel that proof of the victim’s lack of 

consent was required for both the sexual contact and bodily harm elements. The 

 

5 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook 

[Benchbook], para. 3-45-16 (10 Sep. 2014). 
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panel was told to consider “[a]ll the surrounding circumstances” to determine 

whether PFC PR gave consent. 

The military judge also provided the following instructions on mistake of fact 

as to consent: 

Mistake of fact as to consent is a defense to that charged 

offense. “Mistake of fact as to consent” means the 

accused held, as a result of ignorance or mistake, an 

incorrect belief that the other person consented to the 

sexual conduct as alleged. The ignorance or mistake must 

have existed in the mind of the accused and must have 

been reasonable under all the circumstances. To be 

reasonable, the ignorance or mistake must have been based 

on information, or lack of it, that would indicate to a 

reasonable person that the other person consented. 

Additionally, the ignorance or mistake cannot be based on 

the negligent failure to discover the true facts. 

“Negligence” is the absence of due care. 

“Due care” is what a reasonable careful person would do 

under the same or similar circumstances.6

 

This instruction required the panel to consider appellant’s state of mind and 

the reasonableness of his belief about the victim’s consent. 

LAW AND ANALYSIS 

Citing Elonis v. United States, 135 S. Ct. 2001 (2015), and other related 

cases, appellant asserts for the first time on appeal that the military judge erred 

when she7

 failed to instruct the panel on the proper mens rea for the offense of 

abusive sexual contact by bodily harm.8 

The elements for this offense are: (1) that the accused committed a sexual 

contact upon another person by; (2) causing bodily harm to that other person. 

 

6 See Benchbook, para. 3-45-16 n.12. 

7

 Corrected 

8

 We note that the merits of this case were tried in August 2016, which was more 

than a year after Elonis was decided. 
HERNANDEZ— ARMY 20160558 

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Manual for Courts-Martial, United States (2012 ed.) [MCM], pt. IV. ¶ 45.a.(d). In 

appellant’s case, the sexual contact – grabbing PFC PR’s penis with his hand – was 

also the bodily harm, and the military judge followed the Benchbook in instructing 

the panel on a third element of non-consent. 

What mens rea applies to an offense is a question of law that we review de 

novo. United Sates v. Gifford, 75 M.J. 140, 142 (C.A.A.F. 2016). We acknowledge 

that our superior court noted in United States v. Caldwell, 75 M.J. 276, 280 n.3 

(C.A.A.F. 2016), that Elonis has broader implications than just its interpretation of 

18 U.S.C. § 875(c); however, that broad implication extends only to situations where 

a statute is silent as to the requisite mental state. Here, appellant was convicted of 

abusive sexual contact. The requisite mens rea is listed in the definition of sexual 

contact: appellant must have either an intent to abuse, humiliate, or degrade any 

person; or an intent to arouse or gratify the sexual desire of any person. See Article 

120(g)(2), UCMJ. Therefore, this case falls outside the Supreme Court’s decision in 

Elonis, and the military judge provided the correct instruction. 

However, even assuming arguendo that the military judge’s instructions were 

somehow erroneous, “[b]ecause Appellant did not object to the military judge’s 

instructions at trial, we review for plain error ‘based on the law at the time of 

appeal.’” United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018) (quoting

United States v. Guardado, 77 M.J. 90, 93 (C.A.A.F. 2017)). As such, appellant 

“bears the burden of establishing: (1) there is error; (2) the error is clear or obvious; 

and (3) the error materially prejudiced a substantial right.” Id. (citation omitted). 

To establish plain error, “all three prongs must be satisfied.” United States v. 

Gomez, 76 M.J. 76, 79 (C.A.A.F. 2017) (internal quotation marks omitted) (quoting 

United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). Put another way, “the 

failure to establish any one of the prongs is fatal to a plain error claim.” United 

States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017) (quoting Bungert, 62 M.J. at 

348)). The third prong is satisfied if the appellant shows “a reasonable probability 

that, but for the error [claimed], the outcome of the proceeding would have been 

different.” Robinson, 77 M.J. at 299 (quoting United States v. Lopez, 76 M.J. 151, 

154 (C.A.A.F. 2017)) (citation omitted) (internal quotation marks omitted). 

In this case, as in Robinson, “the third prong . . . resolves the issue before 

us.” 77 M.J. at 299. In discussing the night in question, appellant testified that PFC 

PR did not invite appellant to get undressed, join him in the shower, or touch his 

penis. Instead, appellant was sexually aroused and believed it was a good time to 

make his move. According to appellant, “with gay guys . . . you just pretty much go 

straight to it.” Simply put, appellant chose to take matters into his own hands, and 

his actions consciously disregarded a substantial and unjustifiable risk that PFC PR 

did not consent. In light of this uninvited and unrequested conduct, we find a lack 

of material prejudice from the alleged error. 
HERNANDEZ— ARMY 20160558 

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In sum, because appellant “has not demonstrated that the military judge’s 

failure to instruct on [a higher] mens rea requirement would have changed the 

outcome of the court-martial, we hold that the military judge did not plainly err in 

instructing the members.” Robinson, 77 M.J. at 300. 

CONCLUSION 

On consideration of the entire record, the findings of guilty are AFFIRMED. 

We AFFIRM only so much of the sentence as includes a dishonorable discharge, 

confinement for 90 days, reduction to the grade of E-1, and forfeiture of $1,566 pay 

per month for three months.9 

Judge HAGLER and Judge SCHASBERGER concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

9

 The sentence to forfeiture must “state the exact amount in whole dollars to be 

forfeited each month.” Rule for Courts-Martial 1003(b)(2). 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: