On August 8, 2011, the United States Court of Appeals for the Armed Forces decided in United States v. Fosler, 70 M.J. 225, that 'an accused cannot be convicted under Article 134 if the trier of fact determines only that the accused committed adultery; the trier of fact must also determine beyond a reasonable doubt that the terminal element of prejudicial or service discrediting conduct has been satisfied.'
In Fosler, the married accused, while serving as a drill instructor at the NJROTC in Spain, engaged in sexual intercourse with the 16 year old high school student in the program. The student was a daughter of an active duty Navy Servicemember. The UCMJ Article 134 charge read: In that Lance Corporal James N. Fosler, U.S. Marine Corps, Marine Corps Security Force Regiment, on active duty, a married man, did, at or near Naval Station, Rota, Spain, on or about 26 December 2007, . . . wrongfullyhav[e] sexual intercourse with [SK], a woman not his wife.
The United States Court of Appeals for the Armed Forces held that 'wrongfully' was not sufficient under Article 134, UCMJ, in that the accused's conduct was prejudicial to good order or discipline or service discrediting. The Court reasoned that the panel could not simply imply the terminal element of prejudicial or service discrediting conduct from the word 'wrongfully.'
The lesson here is that each accused Servicemember must be charged correctly. If a particular charge does not sufficiently notify an accused Servicemember of his or her misconduct, military courts will overturn the conviction, if the accused's defense counsel raises it as an issue. In this case, Lance Corporal Fosler made poor decisions regarding his personal extramarital relationship. But he selected experienced military criminal defense counsels who were able to overturn his conviction for adultery because it violated the accused's Constitutional right to be notified of the criminal charges. The accused was also charged with UCMJ Article 120, rape and aggravated sexual assault, but ultimately acquitted of both. If you desire to contact experienced military criminal defense counsels to discuss your case, consider the Military Criminal Defense Counsels from The Federal Practice Group.