United States v. Fosler

UNITED STATES, Appellee

v.

James N. FOSLER, Lance Corporal
U.S. Marine Corps, Appellant

No. 11-0149
Crim. App. No. 201000134

United States Court of Appeals for the Armed Forces

Argued May 16, 2011

Decided August 8, 2011

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., filed a dissenting
opinion. BAKER, J., filed a dissenting opinion.

Counsel

For Appellant: Major Jeffrey R. Liebenguth, USMC (argued).

For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief).

Military Judge: Moira Modzelewski

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Fosler, No. 11-0149/MC

Judge STUCKY delivered the opinion of the Court.

To establish a violation of Article 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), the

government must prove beyond a reasonable doubt both that

the accused engaged in certain conduct and that the conduct

satisfied at least one of three listed criteria. The

latter element is commonly referred to as the “terminal

element” of Article 134 and the government must prove that

at least one of the article’s three clauses has been met:

that the accused’s conduct was (1) “to the prejudice of

good order and discipline,” (2) “of a nature to bring

discredit upon the armed forces,” or (3) a “crime[ or]

offense[] not capital.” Article 134. We hold that the

Government failed to allege at least one of the three

clauses either expressly or by necessary implication and

that the charge and specification therefore fail to state

an offense under Article 134.

I.

Contrary to his pleas, Appellant was convicted of

adultery in violation of Article 134. On September 21,

2009, he was sentenced to a bad-conduct discharge,

confinement for thirty days, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade. On

February 5, 2010, the convening authority approved the

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sentence and, with the exception of the bad-conduct

discharge, ordered it executed. On October 28, 2010, the

United States Navy-Marine Corps Court of Criminal Appeals

(CCA) affirmed the findings and the sentence. United

States v. Fosler, 69 M.J. 669, 678 (N-M. Ct. Crim. App.

2010). On February 9, 2011, this Court granted review to

determine whether the charge and specification leading to

Appellant’s conviction for adultery in violation of Article

134 stated an offense.

II.

While a drill instructor at the Naval Junior Reserve

Officer Training Corps (NJROTC) in Rota, Spain, Appellant

admitted to having sexual intercourse on December 26, 2007,

with SK, a sixteen-year-old high school student enrolled in

NJROTC, the daughter of an active duty Navy servicemember.

The evidence demonstrated that other drill instructors and

NJROTC students were aware of the sexual relations between

Appellant and SK. SK claimed that the intercourse was not

consensual.

Appellant was charged with rape and aggravated sexual

assault in violation of Article 120, UCMJ, 10 U.S.C. § 920

(2006), and with adultery in violation of Article 134.

Appellant was ultimately acquitted of the Article 120

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United States v. Fosler, No. 11-0149/MC

charges. The charge sheet described the Article 134

allegation, the offense of conviction, as follows:

Charge II: VIOLATION OF THE UCMJ, ARTICLE 134

Specification: 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, . . . wrongfully hav[e] sexual
intercourse with [SK], a woman not his wife.

After the end of the Government’s case-in-chief, trial

defense counsel moved to dismiss the specification both

under Rule for Courts-Martial (R.C.M.) 917 (motion for a

finding of not guilty due to insufficient evidence), and

because the Government “failed to allege [the terminal

element] in the charge sheet,” and therefore that the

charge and specification “fail[ed] to state an offense.”

As the CCA noted, this second motion should be “considered

as a motion to dismiss under R.C.M. 907.” Fosler, 69 M.J.

at 670 n.1.

The military judge denied both motions. Concerning

the motion to dismiss, the military judge stated that

“[t]here’s no requirement that the government has to either

state [which clause of the terminal element is alleged], or

state either of them in the [s]pecification.” During the

findings phase, the military judge instructed the members

regarding clauses 1 and 2.

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United States v. Fosler, No. 11-0149/MC

III.

Historically, the express allegation of the terminal

element of Article 134 has not been viewed as necessary.

The origin of the modern Article 134, the general article,

can be traced back to before the founding of the nation --

namely, the first American Articles of War in 1775.1

William Winthrop, Military Law and Precedents 720 (2d ed.

Government Printing Office 1920) (1895). Two points can be

made about jurisprudence under the general article. First,

“‘conduct to the prejudice of good order and military

discipline’” -- and when it was added in 1916, “conduct of

a nature to bring discredit upon the armed forces” –-

“[was] deemed to be involved in every specific military

crime,” and was therefore available as a lesser included

offense (LIO) of the enumerated articles of the Articles of

War and later the UCMJ. See United States v. Foster, 40

M.J. 140, 143 (C.M.A. 1994), overruled in part by United

States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 2009);

Winthrop, supra at 109. As a consequence, an accused could

be convicted under Article 134 as an LIO of nearly any

offense charged. As the charged offense was an enumerated

article and therefore did not contain the terminal element,

1
As the Articles of War were revised, the numbering of the
general article has been changed.

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United States v. Fosler, No. 11-0149/MC

its explicit allegation must have been considered

unnecessary. The trier of fact was nonetheless required to

find that the terminal element had been proven beyond a

reasonable doubt to obtain a conviction under Article 134

as an LIO.

Second, the references relied upon by practitioners

did not treat the general article’s terminal element as a

requisite component of the charge and specification.2 To

provide guidance to practitioners, both the Manual for

Courts-Martial (MCM) and authoritative works such as

Colonel Winthrop’s treatise included form charges and

specifications for the various articles. See, e.g., Manual

for Courts-Martial, United States app. 6c (1951 ed.);

Winthrop, supra at 1010-23. This guidance never had the

force of law, but was undoubtedly relied upon in everyday

practice and generally reflective of the authors’

understanding of the law at the time.

With few exceptions, sample specifications provided

for the general article did not indicate that the terminal

element should be alleged, though the sample charges often

2
To understand this point, some background information is
helpful. In military justice, a charge consists of two parts:
the “charge” -- typically, a statement of the article alleged to
have been violated -- and the “specification” -- the more
detailed description of the conduct allegedly violative of the
article. R.C.M. 307(c)(2), (3).

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United States v. Fosler, No. 11-0149/MC

suggested specific reference to the general article. See

Winthrop, supra at 1022 (suggesting that the terminal

element be listed in the charge, but not in the

specification, and without explicit reference to the

general article); A Manual for Courts-Martial, United

States Army app. 3 at 349-350B (1917 ed.) (addressing the

Articles of War of 1916, with the newly enacted predecessor

to the modern clause 2, and suggesting that the charge

explicitly reference the general article, but that

reference to the terminal element was largely unnecessary);

A Manual for Courts-Martial, United States Army 254-57

(1928 ed.) (same); MCM app. 6c at 488-95 (1951 ed.) (same,

as applied to Article 134 in the newly enacted UCMJ); MCM

pt. IV, paras. 60-113 (2005 ed.) (same); MCM pt. IV, paras.

60-113 (2008 ed.) (same).

This Court previously approved of such practices. See

United States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982);

United States v. Marker, 1 C.M.A. 393, 400, 3 C.M.R. 127,

134 (1952) (“[W]e find no reason for the inclusion in the

specification of the words ‘conduct of a nature to bring

discredit upon the military service.’”); see also United

States v. Smith, 39 M.J. 448, 449-51 (C.M.A. 1994) (stating

that the Court had previously held that a specification did

“allege the military offense of obstruction of justice

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United States v. Fosler, No. 11-0149/MC

under Article 134” even though it did not expressly allege

the terminal element); United States v. Wolfe, 19 M.J. 174,

175-76 & n.1 (C.M.A. 1985) (upholding an Article 134

conviction omitting express reference to the terminal

element); United States v. Maze, 21 C.M.A. 260, 45 C.M.R.

34 (1972) (same); United States v. Herndon, 1 C.M.A. 461, 4

C.M.R. 53 (1952) (same).

More recent cases have required a greater degree of

specificity in charging. The Supreme Court, addressing the

relationship between the charged offense and permissible

offenses of conviction, explained in Schmuck v. United

States that the accused’s constitutional right to notice

“would be placed in jeopardy” if the government were “able

to request an instruction on an offense whose elements were

not charged in the indictment.” 489 U.S. 705, 718 (1989).

This concern led the Supreme Court to adopt the elements

test as the appropriate method of determining whether an

offense is an LIO of the charged offense -- and therefore

available as an offense of conviction. This test requires

that “the indictment contain[] the elements of both

offenses and thereby gives notice to the defendant that he

may be convicted on either charge.” Id.

In a line of recent cases drawing on Schmuck, we have

concluded that the historical practice of implying Article

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United States v. Fosler, No. 11-0149/MC

134’s terminal element in every enumerated offense was no

longer permissible. See United States v. McMurrin, 70 M.J.

15, 17 (C.A.A.F. 2011); United States v. Girouard, 70 M.J.

5, 9 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465,

468 (C.A.A.F. 2010); Miller, 67 M.J. at 388-89; United

States v. Medina, 66 M.J. 21, 24-25 (C.A.A.F. 2008).

The Court’s holdings in this line of cases -- that an

accused’s “constitutional rights to notice and to not be

convicted of a crime that is not an LIO of the [charged]

offense” are violated when an accused is convicted of an

Article 134 offense as an LIO of a non-Article 134 charged

offense, see, e.g., Girouard, 70 M.J. at 10 (citing U.S.

Const. amends. V, VI) -- call into question the practice of

omitting the terminal element from the charge and

specification. This is so because not “‘all of the

elements’” of the offense of conviction are “‘included in

the definition of the offense of which the defendant is

charged.’” Id. (emphasis in original) (quoting Patterson

v. New York, 432 U.S. 197, 210 (1977)).

In light of this recent case law, we must determine

whether the military judge erred by denying Appellant’s

motion to dismiss for failure to state an offense.

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United States v. Fosler, No. 11-0149/MC

IV.

The Constitution protects against conviction of

uncharged offenses through the Fifth and Sixth Amendments.

See Russell v. United States, 369 U.S. 749, 761 (1962).

The rights at issue here include the same rights we

addressed in the context of our LIO jurisprudence:

The rights at issue in this case are constitutional in
nature. The Fifth Amendment provides that no person
shall be “deprived of life, liberty, or property,
without due process of law,” U.S. Const. amend. V, and
the Sixth Amendment provides that an accused shall “be
informed of the nature and cause of the accusation,”
U.S. Const. amend. VI.

Girouard, 70 M.J. at 10; see also McMurrin, 70 M.J. at 18-

19 (quoting Girouard, 70 M.J. at 10).

Applying these protections, we set aside convictions

under Article 134 in the LIO context because the charges

and specifications in both cases alleged a violation of an

enumerated article and we could not interpret the elements

of the enumerated articles to “necessarily include[]” the

terminal element. See Article 79, UCMJ, 10 U.S.C. § 879

(2006); see, e.g., Jones, 68 M.J. at 473. We were

compelled to reach this result in multiple cases even

though we employ “normal principles of statutory

construction,” United States v. Alston, 69 M.J. 214, 216

(C.A.A.F. 2010) (rejecting a requirement that elements

“employ identical statutory language”), because none of the

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United States v. Fosler, No. 11-0149/MC

enumerated articles we examined contained elements the

ordinary understanding of which could be interpreted to

mean or necessarily include the concepts of prejudice to

“good order and discipline” or “conduct of a nature to

bring discredit upon the armed forces,” Article 134; see

Girouard, 70 M.J. at 9.

In the instant case, we are called upon to determine,

not whether the terminal element is necessarily included in

the elements of the charged offense, but whether it is

necessarily implied in the charge and specification.

Though the object we must construe is different -- elements

versus charge and specification -- the basic question is

the same: using the appropriate interpretive tools, can

the relevant statutory or, as here, charging language be

interpreted to contain the terminal element such that an

Article 134 conviction can be sustained?

The military is a notice pleading jurisdiction.

United States v. Sell, 3 C.M.A. 202, 206, 11 C.M.R. 202,

206 (1953). A charge and specification will be found

sufficient if they, “first, contain[] the elements of the

offense charged and fairly inform[] a defendant of the

charge against which he must defend, and, second, enable[]

him to plead an acquittal or conviction in bar of future

prosecutions for the same offense.” Hamling v. United

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States, 418 U.S. 87, 117 (1974); see also United States v.

Resendiz-Ponce, 549 U.S. 102, 108 (2007) (citations and

quotation marks omitted); United States v. Sutton, 68 M.J.

455, 455 (C.A.A.F. 2010); United States v. Crafter, 64 M.J.

209, 211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R.

at 206. The rules governing court-martial procedure

encompass the notice requirement: “A specification is

sufficient if it alleges every element of the charged

offense expressly or by necessary implication.”

R.C.M. 307(c)(3).

The requirement to allege every element expressly or

by necessary implication ensures that a defendant

understands what he must defend against: “[A]lthough the

terms Congress chose for [Article 134] are broad, . . .

what is general is made specific through the language of a

given specification. The charge sheet itself gives content

to that general language, thus providing the required

notice of what an accused must defend against.” Jones, 68

M.J. at 472 (citing Parker v. Levy, 417 U.S. 733, 756

(1974)). Indeed, “[n]o principle of procedural due process

is more clearly established than . . . notice of the

specific charge, and a chance to be heard in a trial of the

issues raised by that charge.” Cole v. Arkansas, 333 U.S.

196, 201 (1948); see also Miller, 67 M.J. at 388.

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United States v. Fosler, No. 11-0149/MC

The three clauses of Article 134 constitute “three

distinct and separate parts.” United States v. Frantz,

2 C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953). Violation of

one clause does not necessarily lead to a violation of the

other clauses. For example, “disorders and neglects to the

prejudice of good order and discipline” is not synonymous

with “conduct of a nature to bring discredit upon the armed

forces,” although some conduct may support conviction under

both clauses. This is particularly true of clause 3. See,

e.g., United States v. Martinelli, 62 M.J. 52 (C.A.A.F.

2005) (detailing significant additional steps required to

obtain a conviction under clause 3, as compared with

clauses 1 and 2).

An accused must be given notice as to which clause or

clauses he must defend against. As we explained in the

context of a guilty plea: “[F]or the purposes of Article

134, UCMJ, it is important for the accused to know whether

[the offense in question is] a crime or offense not capital

under clause 3, a ‘disorder or neglect’ under clause 1,

conduct proscribed under clause 2, or all three.” Medina,

66 M.J. at 26. This requirement was based on fair notice.

See id. Principles of fair notice require the same in

contested cases.

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United States v. Fosler, No. 11-0149/MC

Because the terminal element was not expressly

alleged, our task is to determine whether the terminal

element was necessarily implied. See R.C.M. 307(c)(3). To

do so, we must interpret the text of the charge and

specification. We agree with the court below that

Resendiz-Ponce does not foreclose the possibility that an

element could be implied. See Fosler, 69 M.J. at 675.

However, in contested cases, when the charge and

specification are first challenged at trial, we read the

wording more narrowly and will only adopt interpretations

that hew closely to the plain text.3 Cf. United States v.

Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986).

The Government argues that the terminal element is

implied because the specification alleged adultery, the

word “wrongfully” was used, and the charge stated “Article

3
Of course, not all drafting errors call a conviction into
question. “‘[M]inor and technical deficiencies’” are not
fatal to the charge and specification, assuming they do not
prejudice the accused. Russell, 369 U.S. at 763 (quoting
Smith v. United States, 360 U.S. 1, 9 (1959)). Appellant’s
specification also suffers from just such a minor and
technical deficiency, in that the specification contains an
incomplete sentence; however, assuming all other
requirements are met, such mistakes do not render the
charge and specification deficient:

Specification: In that [Appellant] . . . did, at or
near Naval Station, Rota, Spain, on or about 26
December 2007, by wrongfully having sexual intercourse
with [SK], a woman not his wife [sic].

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United States v. Fosler, No. 11-0149/MC

134.” These facts do not provide a basis, individually or

together, to find that the charge and specification

necessarily implied the terminal element.

An allegation of adulterous conduct cannot imply the

terminal element. Article 134, if properly charged, would

be constitutional as applied to Appellant’s adulterous

conduct because, as discussed by the Supreme Court in Levy,

tradition and custom give notice to servicemembers that

adulterous conduct can give rise to a violation of the

UCMJ. See 417 U.S. at 746-47. But this only answers the

question of whether adulterous conduct can constitutionally

be criminalized under Article 134, not whether the wording

of the charge and specification satisfies constitutional

requirements. 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 has

been satisfied. See Medina, 66 M.J. at 27. Because

adultery, standing alone, does not constitute an offense

under Article 134, the mere allegation that an accused has

engaged in adulterous conduct cannot imply the terminal

element.

(Emphasis added.)

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United States v. Fosler, No. 11-0149/MC

Likewise, the word “wrongfully” cannot of itself imply

the terminal element. “Wrongfully” is a word of

criminality and, though our case law has been at times

unclear, see United States v. Choate, 32 M.J. 423, 427

(C.M.A. 1991), words of criminality speak to mens rea and

the lack of a defense or justification, not to the elements

of an offense, see United States v. King, 34 M.J. 95, 97

(C.M.A. 1992); United States v. Fleig, 16 C.M.A. 444, 445,

37 C.M.R. 64, 65 (1966). Neither the word “wrongfully” nor

similar words of criminality can be read to mean or be

defined as, for example, a “disorder[ or] neglect[] to the

prejudice of good order and discipline.” Therefore, while

potentially necessary -- depending on the nature of the

alleged conduct -- such words do not imply the terminal

element in the charge and specification.

In a contested case in which Appellant challenged the

charge and specification at trial, the inclusion of

“Article 134” in the charge does not imply the terminal

element. The words “Article 134” do not, by definition,

mean prejudicial to “good order and discipline,” “of a

nature to bring discredit upon the armed forces,” or a

“crime[ or] offense[] not capital,” and we are unable to

construe the words “Article 134” in the charge we now

review to embrace the terminal element. See Resendiz-

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United States v. Fosler, No. 11-0149/MC

Ponce, 549 U.S. 105-07 (explaining, in a contested case in

which the accused moved to dismiss the indictment at trial,

that an overt act is and has been necessary to and part of

the definition of an “attempt”); Russell, 369 U.S. at 765-

66; Hamling, 418 U.S. at 117-18; cf. Girouard, 70 M.J. at

10 (explaining the critical role of the elements of the

charged offense).

These components of the charge and specification do

not imply the terminal element alone or when combined.4

V.

The Government also argues that its desired result is

compelled by the MCM (2008 ed.), pursuant to the

President’s delegated and Article II powers, and by Parker

v. Levy.

Congress delegated to the President certain rulemaking

authority under Article 36, UCMJ, 10 U.S.C. § 836 (2006),

but not everything in the MCM represents an exercise of

that authority, and the President does not have the

authority to decide questions of substantive criminal law.

See Jones, 68 M.J. at 472 (citing Ellis v. Jacob, 26 M.J.

4
The deficiency in Appellant’s charge and specification could
not have been remedied by requesting a bill of particulars under
R.C.M. 906(b)(6). A bill of particulars cannot cure a charge
and specification that fail to state an offense. See Russell,
369 U.S. at 770; see also R.C.M. 906(b)(6), Discussion (“A bill

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United States v. Fosler, No. 11-0149/MC

90, 92 (C.M.A. 1988)). No article of the UCMJ states that

the terminal element may be omitted. Even if the President

had the authority to do so, he has not set out any Rule for

Courts-Martial or Military Rule of Evidence directing that

the terminal element need not be alleged expressly or by

necessary implication. Some of the MCM is merely

explanatory or hortatory. The sample specifications and

drafters’ analysis are included among these categories and

do not purport to be binding. See MCM pt. I, para. 4,

Discussion (2008 ed.) (“These supplementary materials do

not constitute . . . official views of . . . any . . .

authority of the Government of the United States, and they

do not constitute rules.”); MCM pt. I, para. 4, Discussion

(2005 ed.); see also United States v. Mitchell, 66 M.J.

176, 179 (C.A.A.F. 2008) (“The interpretation of

substantive offenses in Part IV of the Manual is not

binding on the judiciary . . . .”).

Because the only discussion in the MCM stating that

allegation of the terminal element is not required, MCM pt.

IV, para. 60.c.(6)(a) (2008 ed.); MCM pt. IV, para.

60.c.(6)(a) (2005 ed.), is not set forth as language

intended to be binding, we need not decide whether any such

of particulars cannot be used to repair a specification which is
otherwise not legally sufficient.”).

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United States v. Fosler, No. 11-0149/MC

language constitutes a proper exercise of delegated

authority under Article 36 or, if not, whether the

President’s Article II authority would extend to such a

direction.

The Government also argues that the silence of the MCM

should be interpreted to constitute adoption of historical

practices. However, there is no clear indication from

Congress -- expressed in the text of the UCMJ or otherwise

-- that it intended to do so. Moreover, such an

interpretation would require us to consider whether the

actions of Congress or the President contravene

constitutional mandates. In light of the canon of

constitutional avoidance, we decline to adopt the

Government’s position. See Clark v. Martinez, 543 U.S.

371, 380-81 (2005) (explaining the canon of constitutional

avoidance).

One could argue that, because the Supreme Court upheld

the constitutionality of Article 134 on the basis of the

unique history of that article in the military, see

generally Levy, 417 U.S. 733, we should also consider that

history when determining whether the terminal element has

been alleged by necessary implication. As noted,

historically, the terminal element did not need to be

clearly alleged. And, as discussed, Article 134 was

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United States v. Fosler, No. 11-0149/MC

traditionally implied as an LIO of any enumerated article

even though the terminal element was not listed among the

elements of the charged offense.

But the Supreme Court’s LIO jurisprudence has changed

since Levy and so has this Court’s, circumscribing the

extent to which Article 134 -- and particularly its

terminal element -- can be implied. “The rights at issue

in this case are constitutional in nature,” and the

government is obligated to allege all the elements of the

offense. See Girouard, 70 M.J. at 10. Moreover, Levy

focused on the constitutionality of Article 134 itself, not

the specific procedure of charging an Article 134 offense.

See 417 U.S. at 754. It is also worth noting that, in

Levy, the terminal element of Article 134 was expressly

alleged. See id. at 738 n.5.

The Government must allege every element expressly or

by necessary implication, including the terminal element.

The Government did not expressly allege the terminal

element in this case. Because Appellant made an R.C.M. 907

motion at trial, we review the language of the charge and

specification more narrowly than we might at later stages.

Cf. Watkins, 21 M.J. at 209-10. In this context, and in

light of the changes in Article 134 jurisprudence, we do

not adopt the Government’s broad reading of the reference

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United States v. Fosler, No. 11-0149/MC

in the charge to “Article 134.” Absent the historical

gloss on the meaning of “Article 134” when that phrase

exists in the charge, we are compelled to hold that the

charge and specification do not allege the terminal element

expressly or by necessary implication. To the extent that

prior decisions such as Mayo and Marker hold to the

contrary, they are overruled.

Under principles of stare decisis, we examine

“intervening events, reasonable expectations of

servicemembers, and the risk of undermining public

confidence in the law.” United States v. Boyett, 42 M.J.

150, 154 (C.A.A.F. 1995). “But the doctrine does not apply

when a statute, executive order, or other basis for a

decision changes.” Id. (footnotes omitted); see also

Agostini v. Felton, 521 U.S. 203, 235-36 (1997). Although

the dissenting opinions argue at length for the application

of stare decisis, the Supreme Court has explained that

“stare decisis cannot possibly be controlling when . . .

the decision in question has been proved manifestly

erroneous, and its underpinnings eroded, by subsequent

decisions of [the Supreme] Court.” United States v.

Gaudin, 515 U.S. 506, 521 (1995).

The jurisprudence of the Supreme Court and our own

Court has changed. As discussed, prior to application of

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United States v. Fosler, No. 11-0149/MC

the elements test in the LIO context, it was largely

settled that Article 134 could be implied in every other

offense and was available as an LIO. This was true even

though the language of the terminal element was not

contained within the charged offense. But the Supreme

Court clarified the law, requiring the elements test. See

Schmuck, 489 U.S. at 716-21. After some delay, we applied

that law to courts-martial, holding that constitutional

notice requirements no longer permitted such broad

implication of the terminal element. See Medina, 66 M.J.

at 24-25. The mandates of constitutional notice

requirements superseded the long-standing practice of

implying Article 134 in other enumerated offenses, thus

substantially limiting the extent to which the terminal

element can permissibly be implied. Stare decisis does not

require that we ignore the fact that the basis for the

historical practice of omitting the terminal element when

an Article 134 offense is charged has been substantially

eroded. See Boyett, 42 M.J. at 154.

Therefore, because an accused must be notified which

of the three clauses he must defend against, to survive an

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R.C.M. 907 motion to dismiss, the terminal element must be

set forth in the charge and specification.5

VI.

In this case, at the end of the Government’s case-in-

chief, defense counsel made a motion to dismiss the

specification of adultery under Charge II because the

Government “failed to allege [the terminal element] in the

charge sheet,” and therefore “it’s a failure to state an

offense.” This constitutes a motion to dismiss under

R.C.M. 907(b)(1)(B), which may be made “at any stage of the

proceedings.” The military judge denied this motion.

Construing the text of the charge and specification

narrowly, as we must based on the posture of the case, they

fail to allege the terminal element expressly or by

necessary implication. Because allegation of the terminal

5
Judge Baker writes that our analysis “may as a practical matter
have the effect of invalidating the text of R.C.M. 307.” United
States v. Fosler, __ M.J. __ (5) (C.A.A.F. 2011) (Baker, J.,
dissenting). We disagree; R.C.M. 307(c)(3) calls for a two-step
analysis of whether a charge and specification state an offense.
If the element is not expressly stated or necessarily implied,
it is absent. As we state, the constitutionality of R.C.M. 307
has not been called into question by recent case law. When we
read the charge and specification narrowly, as we must when an
R.C.M. 907 motion is made before the end of trial, the terminal
element might be alleged using words with the same meaning. See
Alston, 69 M.J. at 216. That R.C.M. 307 and the Constitution
permit, as a general matter, elements to be necessarily implied,
does not mean that the text of every element is equally
susceptible to implication consistent with constitutional notice
requirements.

23
United States v. Fosler, No. 11-0149/MC

element is constitutionally required and the Government

failed to satisfy that requirement here, the military

judge’s decision to deny Appellant’s motion to dismiss was

in error.6 The remedy for this erroneously denied motion to

dismiss is dismissal. See United States v. Smith, 39 M.J.

448, 452-53 (C.M.A. 1994).

VII.

Accordingly, the judgment of the United States Navy-

Marine Corps Court of Criminal Appeals is reversed. The

findings of guilty and the sentence are set aside, and the

charge and its specification are dismissed.

6
We do not take issue with the President’s ability to describe
conduct, such as adultery, which might invoke a violation of
Article 134. See Jones, 68 M.J. at 472. Nor does our holding
challenge the validity, vitality, or continued relevance of
Article 134. Rather, we simply require that its elements be
charged explicitly or by necessary implication, as the
Constitution and the R.C.M. require. Nothing in Levy is to the
contrary.

24
United States v. Fosler, No. 11-0149/MC

EFFRON, Chief Judge (dissenting):

While serving as a drill instructor at the Naval Junior

Reserve Officer Training Corps Program in Rota, Spain, Appellant

engaged in sexual intercourse with a high school student in the

program. The ensuing charges included an allegation that

Appellant, who was married, committed adultery with the student

-- a sixteen-year-old dependent daughter of an active duty Navy

servicemember -- in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006) (proscribing

“all disorders and neglects to the prejudice of good order and

discipline in the armed forces, all conduct of a nature to bring

discredit upon the armed forces, and crimes and offenses not

capital”).

The adultery charge employed the sample specification set

forth in the Manual for Courts-Martial. The specification used

the long-standing format for Article 134 offenses, employing

wording that predates enactment of the UCMJ.

In this appeal, Appellant challenges the legality of the

traditional wording of specifications under Article 134.

Appellant does not challenge the ruling of the military judge

regarding the legal sufficiency of the prosecution’s evidence on

each of the elements of the offense; nor does Appellant

challenge the adequacy of the military judge’s instructions to

the court-martial panel on the elements of the offense.
United States v. Fosler, No. 11-0149/MC

Appellant contends on appeal that the charge should be dismissed

on the theory that the standard wording for an Article 134

charge does not constitute an offense under the Uniform Code of

Military Justice. The majority opinion agrees with Appellant’s

contention.

Article 134 serves as a critical foundation to the

maintenance of good order and discipline in the armed forces.

See Parker v. Levy, 417 U.S. 733 (1974). The majority decision

calls into question the validity of every court-martial

conviction that has employed the traditional specification.

Trial and appellate courts will be required to reexamine Article

134 charges in pending proceedings; and further litigation is

likely concerning the impact of the decision on prior

convictions under Article 134. For the reasons set forth below,

I respectfully dissent.

I. PRETRIAL AND TRIAL PROCEEDINGS

The text of the charge and its specification

The Commanding General, II Marine Expeditionary Force, Camp

Lejeune, North Carolina, convened a general court-martial to

consider charges against Appellant, including the following:

Charge II: VIOLATION OF THE UCMJ, ARTICLE
134

Specification: 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,

2
United States v. Fosler, No. 11-0149/MC

Rota, Spain, on or about 26 December 2007, .
. . wrongfully hav[e] sexual intercourse
with [SK], a woman not his wife.

The legality of the charge

The convening authority, in making the referral, acted upon

the advice of his staff judge advocate (SJA). The SJA advised

the convening authority that the “specifications under the

charges allege an offense under the UCMJ.” See Article 34,

UCMJ, 10 U.S.C. § 834 (2006) (precluding a convening authority

from referring a case for trial by general court-martial in the

absence of such advice).

The SJA’s advice as to the legality of the charge reflected

well-established military law. See, e.g., Manual for Courts-

Martial, United States pt. IV, para. 62.f (2008 ed.) (MCM (2008

ed.)) (sample specification); Manual for Courts-Martial, United

States, app. 6c., para. 127 (1969 rev. ed.) (MCM (1969 rev.

ed.)) (sample specification in predecessor edition); Manual for

Courts-Martial, United States, app. 6, para. 119 (1951 ed.)

(sample specification in the first edition of the Manual issued

following enactment of the UCMJ); Manual for Courts-Martial,

U.S. Army, app. 4, para. 117 (1949 ed.) (sample specification in

the Manual in force for Army proceedings during the period

immediately preceding enactment of the UCMJ).

The charge, as drafted, also reflected the traditional

relationship between the text of the charge and the elements of

3
United States v. Fosler, No. 11-0149/MC

this offense. The President, in the Manual for Courts-Martial,

set forth the following guidance concerning the elements of the

offense at issue in the present appeal:

(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 pt. IV para. 62.b (2008 ed.) In Rule for Court-Martial

(R.C.M.) 307(c)(3), which governs the drafting of charges, the

President emphasized that a “specification is a plain, concise,

and definite statement of the essential facts constituting the

offense charged.” The President further added: “A

specification is sufficient if it alleges every element of the

charged offense expressly or by necessary implication.” Id.

Consistent with authority to address an element “by

necessary implication” rather than “expressly,” the President

has provided the following guidance with respect to the drafting

of specifications for offenses under Article 134:

A specification alleging a violation of
Article 134 need not expressly allege that
the conduct was “a disorder or neglect,”
that it was “of a nature to bring discredit
upon the armed forces,” or that it
constituted “a crime or offense not

4
United States v. Fosler, No. 11-0149/MC

capital.” The same conduct may constitute a
disorder or neglect to the prejudice of good
order and discipline in the armed forces and
at the same time be of a nature to bring
discredit on the armed forces.

MCM pt. IV, para. 60.c.(6)(a) (2008 ed.); accord MCM para. 213a,

(1969 rev. ed.). see MCM, Analysis of Punitive Articles app. 23

at A23-19 (2008 ed.) (citing para. 213 of the 1969 Manual as the

source for the current provision).

The drafters’ analysis of the 1969 Manual noted that under

paragraph 213, the specification “need not expressly allege”

which clause the conduct violates. Id. In support of this

provision, the drafters’ analysis relied upon United States v.

Herndon, 1 C.M.A. 461, 4 C.M.R. 53 (1952) (affirming a

conviction in which the specification did not refer to any of

the three clauses within Article 134). Herndon expressly relied

upon the language of the sample specification, as set forth in

the 1951 Manual, and affirmed a finding that employed the

language of the sample specification -- language similar in

pertinent respects to the specification at issue in the present

case. Herndon, 1 C.M.A. at 463-65, 4 C.M.R. at 55-57. Herndon

serves as the controlling precedent in support of the validity

of the guidance in the Manual. See, e.g., United States v.

Mayo, 12 M.J. 286, 293 (C.M.A. 1982) (citing with approval

Herndon and para. 213a).

5
United States v. Fosler, No. 11-0149/MC

The observation in Mayo, 12 M.J. at 293 -- that our Court

“has not held that a specification lodged under Article 134 must

include an allegation that [the] accused’s conduct was to the

prejudice of good order and discipline or to the discredit of

the armed forces” -- underscores that the guidance in the Manual

is consistent with the judicial interpretation of the UCMJ. In

that context, the SJA properly advised the convening authority

that the charged conduct constituted an offense under the UCMJ.

Pretrial proceedings

During the extensive consideration of pretrial motions in

this case, neither party raised an issue concerning the wording

of the specification. The defense did not move to make the

charges more definite or for a bill of particulars under R.C.M.

906(a)(6).

The defense motion at the close of the Government’s case

During the trial, the prosecution introduced evidence that

Appellant was an instructor in the Naval Junior Reserve Officer

Training Corps Program, that he had engaged in sexual activity

with a high school student in the program, that the student was

sixteen years old, and that she was the dependent of an active

duty member of the Navy. After the Government presented its

evidence and rested, the defense presented a motion for a

finding of not guilty under R.C.M. 917, including:

6
United States v. Fosler, No. 11-0149/MC

a motion as to Charge II, under Article 134,
because the government has failed to show
that it was prejudicial to good order and
discipline, or service discrediting, and
also failed to allege it in the charge
sheet. Therefore, it’s a failure to state
an offense. He can’t be found guilty of a
crime, according to this Specification as
pled.

At first, the military judge viewed the defense as offering

a motion under R.C.M. 917 (requiring the military judge to enter

a finding of not guilty “if the evidence is insufficient to

sustain a conviction of the offense affected”). In the motion

proceeding, the defense offered no explanation as to why the

prosecution’s evidence of sexual activity between an instructor

and a student who also was a military dependent did not meet the

legal sufficiency standard with respect to proof that

Appellant’s conduct was either prejudicial to good order and

discipline or service discrediting under applicable law. The

military judge denied the motion, and Appellant has not

challenged his ruling under R.C.M. 917 in the present appeal.

The defense then asked the military judge to address the

defense objection that the specification did not “allege a

critical element, which is prejudicial to good order and

discipline, or . . . service discrediting.” The military judge

responded by directing defense counsel’s attention to the sample

specification in the Manual for Courts-Martial. The following

dialogue ensued:

7
United States v. Fosler, No. 11-0149/MC

MJ: Can you tell me, in what way the
Specification that’s currently on the charge
sheet, in the case at bar, falls short of
that simple specification, or are you saying
that the sample specification in the Manual
for Courts-Martial is, itself, is deficient
in that it, like many of the 134’s, does not
explicitly have the terminal element of --

DC: Yes, ma’am. Our argument is it should
explicitly say that it’s -- that under the
circumstances the conduct was prejudicial to
good order and discipline, or of a nature to
bring discredit upon the armed forces, so
that Lance Corporal Fosler would know
whether that other element, one of the three
elements is prejudicial to good order and
discipline or service discrediting.

MJ: There’s no requirement that the
government has to either state in the
Specification which one it is, or state
either of them in the Specification.

DC: Yes, ma’am.

MJ: The government can prove up either of
them in this case. And the court finds that
there is certainly evidence to survive a
[motion under R.C.M.] 917 on the terminal
element of conduct prejudicial to good order
and discipline or service discrediting, to
survive the [R.C.M.] 917 motion at this
point.

DC: Yes, ma’am. Thank you.

The defense offered no legal analysis in support of its

objection to the wording of the specification as drafted.

Likewise, the defense did not address this Court’s precedent in

the Herndon-Mayo line of cases approving the Manual’s sample

specification, nor did the defense offer any legal authority for

8
United States v. Fosler, No. 11-0149/MC

the proposition that the military judge should reject reliance

on the sample specification.

Instructions

After the parties concluded their presentation of evidence

on the merits, the military judge instructed the court-martial

panel on every element of the offense:

Members, looking next at Charge II and the
sole Specification thereunder, the accused
is charged with the offense of adultery. In
order to find the accused guilty of this
offense, you must be convinced, by legal and
competent evidence, beyond a reasonable
doubt:

First, that at or near Naval Station Rota,
Spain, on or about 26 December 2007, the
accused wrongfully had sexual intercourse
with [SK].

Secondly, that at the [time, the] accused
was married to another; and

Thirdly, 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.

The military judge then explained, in detail, the meaning

of the terms in the third element:

“Conduct prejudicial to good order and
discipline” is conduct that causes a
reasonably direct and obvious injury to good
order and discipline.

“Service discrediting conduct” is conduct
that tends to harm the reputation of the
service, or to lower it in public esteem.

9
United States v. Fosler, No. 11-0149/MC

At that point, the military judge provided further detailed

instructions on the meaning of the third element in the context

of an adultery charge:

Not every act of adultery constitutes an
offense under the Uniform Code of Military
Justice. To constitute an offense, the
government must prove, beyond a reasonable
doubt, that the accused’s adultery was
either directly prejudicial to good order
and discipline, or service discrediting.

“Conduct prejudicial to good order and
discipline” includes adultery that has an
obvious and measurably divisive effect on
the discipline, morale, or cohesion of a
military unit or organization, or that has a
clearly detrimental impact on the authority,
stature, or esteem of a service member.

“Service discrediting conduct” includes
adultery that has a tendency, because of its
open notorious nature, to bring the service
into disrepute, to make it subject to public
ridicule, or to lower it in public esteem.

Under some circumstances, adultery may not
be prejudicial to good order and discipline,
but nevertheless may be service
discrediting, as I’ve explained those terms
to you.

Likewise, depending on the circumstances,
adultery could be prejudicial to good order
and discipline, but not be service
discrediting.

The military judge then added detailed guidance on the

application of these instructions to the facts of the case:

In determining whether the alleged adultery
in this case is prejudicial to good order
and discipline, or is of a nature to bring
discredit upon the armed forces, you should

10
United States v. Fosler, No. 11-0149/MC

consider all the facts and circumstances
offered on this issue including, but not
limited to, the accused’s marital status,
military rank, grade, or position; the
impact of the adultery on a unit or
organization of the accused, such as a
detrimental effect on a unit or
organization, morale, teamwork and
efficiency; where the adultery occurred; who
may have known of the adultery; and the
nature, if any, of the official and personal
relationship between the accused and [SK].

In the present appeal, Appellant has not challenged the

adequacy of these instructions, nor has Appellant challenged the

legal sufficiency of the evidence upon which the court-martial

panel returned a finding of guilty on the charge of adultery.

II. APPELLATE CONSIDERATION

The majority offers a variety of reasons for concluding

that the traditional specification does not set forth an offense

under the UCMJ.

Historical perspective

The majority opinion speculates that the format of the

traditional specification reflects prior jurisprudence in which

Article 134 offenses were treated as included within all of the

other “enumerated articles” for purposes of treatment as lesser

included offenses. According to the majority, “As the charged

offense was an enumerated article and therefore did not contain

the terminal element [of Article 134], its explicit allegation

must have been considered unnecessary.” __ M.J. __ (5-6)

11
United States v. Fosler, No. 11-0149/MC

(citing United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994);

William Winthrop, Military Law and Precedents 109 (2d ed. Gov’t

Printing Office 1920) (1895)). Foster contains no discussion of

historical basis of the format for Article 134 offenses, and

nothing in Winthrop suggests that the traditional format was

developed to address the relationship between greater and lesser

offenses. The majority opinion does not identify any historical

record that would justify the conclusion that the impetus for

the format of the traditional specification came from a concern

about the treatment of lesser included offenses.

Precedent

The majority opinion does not cite any case in which our

Court has held that the traditional specification fails to state

an offense under the UCMJ. After acknowledging the Herndon line

of cases upholding the traditional specification, the majority

opinion contends that the result in the present case is

compelled by our recent decisions in United States v. McMurrin,

70 M.J. 15, 17 (C.A.A.F. 2011); United States v. Girouard, 70

M.J. 5, 9 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465,

468 (C.A.A.F. 2010); United States v. Miller, 67 M.J. 385, 388-

89 (C.A.A.F. 2009); United States v. Medina, 66 M.J. 21, 24-25

(C.A.A.F. 2008). __ M.J. __ (8-9). These cases represent the

latest attempt by our Court to bring some order to consideration

of lesser included offenses -- a subject that has been the

12
United States v. Fosler, No. 11-0149/MC

subject of considerable instability in military law. See, e.g.,

Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex,

Army Law, Feb. 2011, at 46, 46-48 (describing the frequent

shifts in judicial doctrine prior to the current set of cases).

These cases address the role of elements in ascertaining whether

a purported lesser offense is included within a charged offense

for purposes of Article 79, UCMJ, 10 U.S.C. § 879 (2006)

(governing convictions for lesser included offenses).

The cases relied upon in the majority opinion stand for the

proposition that a conviction may not be affirmed under Article

79 if the purported lesser included offense contains an element

that is not necessarily included within the charged offense.

These cases underscore the necessity of including all elements

within the text of a charge; but that is not the primary issue

in the present case. R.C.M. 307(c)(3) specifically states that

“[a] specification is sufficient if it alleges every element of

the charged offense expressly or by necessary implication.” If

the specification before us does not meet that test, it is

invalid irrespective of our holdings in the Medina-McMurrin line

of cases. In that regard, the primary question in the present

case is whether the specification at issue necessarily included

all the elements of the charged offense.

13
United States v. Fosler, No. 11-0149/MC

Alternate theories under Article 134

The majority opinion states that “[a]n accused must be

given notice as to which clause or clauses [of Article 134] he

must defend against.” __ M.J. at __ (13). The opinion cites no

case in which we have held that a specification must identify a

clause or clauses within Article 134 in order to state an

offense under the UCMJ and survive a motion to dismiss. The

opinion relies on our recent decision in Medina, 66 M.J. at 26,

but that case does not require that a specification identify the

Article 134 clause under which an individual has been convicted.

On the contrary, Medina expressly recognizes that an accused

charged with an offense under Article 134, clause 3 (non-capital

crimes and offenses) can be convicted of either a clause 1

offense (conduct prejudicial to good order and discipline) or a

clause 2 offense (service discrediting conduct) even if neither

is mentioned in the specification. See id. at 26-27. Such a

conviction is valid, under Medina, so long as the military judge

has addressed the alternate theory through instructions in a

contested case or through the plea inquiry or a pretrial

agreement in a guilty plea case. See id. In the present case,

involving a contested trial, the military judge provided

detailed instructions with respect to both service discrediting

conduct and conduct prejudicial to good order and discipline.

14
United States v. Fosler, No. 11-0149/MC

To the extent that an accused can demonstrate that

information beyond the text of the sample specification may be

necessary in a particular case, the accused may file a motion

for a more definite specification or a bill of particulars under

R.C.M. 906(b)(6). Such a motion, however, does not address the

separate question of whether a charge must be dismissed for

failure to state an offense under R.C.M. 907(b)(1)(B), but

instead involves a determination as to whether relief is

appropriate under R.C.M. 906(b)(6). In the present case, the

defense did not move for a more definite specification or for a

bill of particulars.

Words of criminality

As noted in the majority opinion, this case presents the

question of whether the specification necessarily implied an

element of the offense. __ M.J. at __ (14). See R.C.M.

307(c)(3). In this case, the issue is whether the traditional

specification necessarily implies that the charged conduct was

either prejudicial to good order and discipline or service

discrediting.

The majority opinion states that “the word ‘wrongfully’ [in

the specification] cannot of itself imply the terminal element,”

contending that we are compelled to dismiss the specification

because “words of criminality speak to mens rea and the lack of

a defense or justification, not to the elements of an offense.”

15
United States v. Fosler, No. 11-0149/MC

__ M.J. at __ (16). In support of that proposition, the

majority opinion cites United States v. King, 34 M.J. 95, 97

(C.M.A. 1992), and United States v. Fleig, 16 C.M.A. 444, 445,

37 C.M.R. 64, 65 (1966), but neither King nor Fleig compels the

result in the present case. Neither case addressed the

relationship between an allegation of wrongfulness and the

terminal element. Indeed, both cases involved specifications

that did not contain the terminal element, a circumstance that

drew no attention from the Court in either case. In both cases,

the Court focused on factual deficiencies in the specifications,

not the terminal element. As noted by the Court of Criminal

Appeals in discussing the relationship of King and Fleig to the

present case:

[T]he . . . comparison[] to other flawed
specifications is inapplicable because they
were all missing allegations of facts
specific to the individual crimes charged.
See King, 34 M.J. at 97 (allegation of
marriage missing in adultery specification);
. . . Fleig, [16 C.M.A. at 445-46, 37 C.M.R.
at 64-65] (for a hit-and-run offense, the
specification was missing fact that the
vehicle the accused was driving was involved
in the collision). Such factual charging
omissions are not analogous to omitting the
terminal element that is common to all
Article 134 offenses.

United States v. Fosler, 69 M.J. 669, 675 (N-M. Ct. Crim. App.

2010) (emphasis and citations omitted).

16
United States v. Fosler, No. 11-0149/MC

The Court of Criminal Appeals then addressed the question

of whether the elements of the offense were necessarily implied

in the present case. After carefully discussing our prior cases

and the specification at issue in this case, the court offered

the following conclusion:

[I]f a specification does not contain the
terminal element specifying that the conduct
was prejudicial to good order and discipline
or service discrediting, alleging the
criminality of the specified conduct by use
of the words “wrongful” or “unlawful” is
sufficient.

In the present case, the specification
itself properly alleges both criminality and
the acts that might be determined as
prejudicial to good order and discipline or
service discrediting. The specification at
issue provided notice to LCpl Fosler that
while he was a married man and on active
duty at Naval Station, Rota, Spain, he
wrongfully had sexual intercourse with a
woman not his wife. The appellant was on
notice that his conduct while a married
active duty service member put him at risk
of criminal liability if the conduct was
service discrediting or prejudicial to good
order and discipline.

. . . [T]he specification here states the
sexual intercourse was wrongful. Again,
“wrongful” is employed as a word of
criminality, and when alleged in concert
with the specified conduct, it necessarily
implies the terminal element. This is
particularly true in the context of
adultery, where alleging that the conduct
was wrongful is required because it would
normally not be a crime in civilian
jurisdictions. . . . [T]he wrongfulness of
the appellant’s conduct in the military
context is what implies prejudice to good

17
United States v. Fosler, No. 11-0149/MC

order and discipline, service discredit, or
both.

Id. at 676-77 (emphasis and footnote omitted). I agree. Our

precedent supports use of the traditional specification, and

nothing in our case law compels a contrary result.

III. ADHERENCE TO PRECEDENT

The present case does not require us to decide whether any

of the guidance in Part IV of the Manual establishes a binding

requirement. Here, we are dealing with well-established

judicial precedent that predates enactment of the UCMJ. In that

regard, the President’s guidance both reflects the state of the

law, and informs the application of the rule set forth in R.C.M.

307(c)(3) regarding the treatment of elements in the drafting of

specifications.

If this were a case of first impression, the approach

suggested in the majority opinion might well provide an

appropriate ground for a decision. We are not dealing with a

fresh case, however, but instead have a case involving long-

standing precedent under military law.

The Supreme Court has emphasized that adherence to

precedent in judicial decisions -- the doctrine of stare decisis

-- provides “the preferred course because it promotes the

evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

18
United States v. Fosler, No. 11-0149/MC

contributes to the actual and perceived integrity of the

judicial process.” Payne v. Tennessee, 501 U.S. 808, 827

(1991). Relying on our precedent, the President has promulgated

guidance that has governed the charging of offenses under

Article 134 throughout the history of the UCMJ. Notwithstanding

that reliance, the majority opinion holds that a charge that

employs the traditional specification does not set forth an

offense under the UCMJ. Given the significant reliance on

Article 134 charges in maintaining good order and discipline in

the armed forces, the majority opinion is likely to lead to

extensive litigation about the impact of the decision on pending

courts-martial and appellate proceedings; and the decision may

well result in collateral challenges to prior convictions that

relied upon the traditional specification.

In considering the application of precedent, we have

observed that “[s]tare decisis is a principle of decision

making, not a rule, and need not be applied when the precedent

at issue is ‘unworkable or . . . badly reasoned.’” United

States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000) (omission in

original) (quoting Payne, 501 U.S. at 827). In terms of

workability, overturning this precedent will lead us into

uncharted territory, with numerous challenges to past and

present cases involving convictions under Article 134. By

contrast, the procedure approved in the Herndon line of cases --

19
United States v. Fosler, No. 11-0149/MC

a procedure that provided Appellant with the same notice and

opportunity to respond as has been provided traditionally to

servicemembers charged with Article 134 offenses -- is neither

unworkable nor badly reasoned. Under these circumstances, I

would adhere to precedent and affirm the decision of the Court

of Criminal Appeals.

20
United States v. Fosler, No. 11-0149/MC

BAKER, Judge (dissenting):

I respectfully dissent for three reasons. First, as

discussed in Part I, this case presents a straightforward

application of Rule for Courts-Martial (R.C.M.) 307. The text

of the specification, which referenced wrongful adulterous

conduct on a date certain with a person certain, necessarily

implied the terminal element of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006). The Manual for

Courts-Martial, United States (2008 ed.) (MCM) expressly states

so. Military practice consistently provides so. And, this

Court’s case law has always concluded so.

Second, as discussed in Part II, the majority’s opinion

reaches beyond the needs of this case, and appears to put in

question, if not invalidate, all Article 134, UCMJ, convictions

past and present, that did not or do not include the terminal

element in the specification. While pleading the terminal

element might be good practice, it is not required. Such a sea

change runs counter to the plain language of R.C.M. 307, long-

standing practice, and principles of stare decisis that are

particularly apt in the Article 134, UCMJ, context. One is left

to ask: If the specification in Appellant’s case does not

implicitly include the terminal element, when would a

specification include the terminal element by implication?
United States v. Fosler, No. 11-0149/MC

Third, as considered in Part II, the majority opinion

raises more questions than it answers. A number of critical

systemic legal policy questions remain open. What status, if

any, does the Manual play in the context of Article 134, UCMJ?

What role does the Commander in Chief play, if any, in defining

the Rules for Courts-Martial (R.C.M.) and the elements of

Article 134, UCMJ? Finally, has Article 134, UCMJ, lost its

essential character as a predictable, and therefore fair and

useful, element of military discipline?

I.

The legal question presented in this case is

straightforward: Does the specification allege every element of

the charged offense expressly or by necessary implication? In

my view, the answer is yes. The specification at issue states:

Specification: In that Lance Corporal James N. Fosler
. . . a married man, did, at or near Naval Station,
Rota, Spain, on or about 26 December 2007, . . .
wrongfully hav[e] sexual intercourse with [SK], a
woman not his wife.

To start with the obvious, the specification does not expressly

allege either of the terminal elements for an offense under

clauses 1 or 2 of Article 134, UCMJ. Thus, the question is

whether the elements of service discrediting conduct or conduct

prejudicing good order and discipline are alleged by necessary

2
United States v. Fosler, No. 11-0149/MC

implication, as permitted by the text of R.C.M. 307.1 The answer

is yes.

First, the charge alleges that Appellant violated Article

134, UCMJ. That necessarily implies that Appellant violated

either clause 1, clause 2, clause 3, or some combination of the

three clauses.

Second, the specification expressly states that Appellant

violated Article 134, UCMJ, on a date certain, “on or about 26

December 2007,” by “having sexual intercourse with [SK], a woman

not his wife.” Thus, the specification expressly states that

Appellant committed adultery.

Third, the specification expressly states that Appellant

engaged in this conduct “wrongfully.” Thus, his conduct was not

mere adultery, but wrongful adultery in the context of the

military. As the majority itself acknowledges “wrongful” is a

word of criminality. Thus, the specification charges appellant

with criminal adultery in the military and not mere adultery.

Fourth, for adultery to be criminal, “the adulterous

conduct must either be directly prejudicial to good order and

discipline or service discrediting.” MCM, pt. IV, para. 62.c.

That is the only manner in which adultery can be criminal under

the article. Moreover, the specification in Appellant’s case is

1
“A specification is sufficient if it alleges every element of
the charged offense expressly or by necessary implication.”
R.C.M. 307(c)(3).

3
United States v. Fosler, No. 11-0149/MC

based on the sample specification provided in the Manual.2 Thus,

a specification alleging wrongful adulterous conduct under

Article 134, UCMJ, necessarily implies that the conduct is

service discrediting or prejudicial to good order and

discipline. That is the basis on which the President has

authorized its prosecution.

Finally, because the specification provides the specific

date of the conduct concerned, as well as the name of the other

party, Appellant was on notice as to what alleged facts in

support of these elements he would be required to meet. As a

result, the specification satisfied Appellant’s right “to be

informed of the nature and cause of the accusation.” U.S.

Const. amend. VI.

Nonetheless, the majority concludes that an allegation of

wrongful adulterous conduct on a date certain charged under

Article 134, UCMJ, does not imply that conduct is either service

discrediting or prejudicial to good order and discipline. This

conclusion celebrates form over substance; as surely the

2
The Manual provides the following sample specification:

In that [fill in] (personal jurisdiction data), (a married
man/a married woman), did, (at/on board -- location)
(subject-matter jurisdiction data, if required), on or
about [fill in date or range of dates], wrongfully have
sexual intercourse with [fill in name of other party], a
(married) (woman/man) not (his wife) (her husband).

MCM pt. IV, para. 62.f.

4
United States v. Fosler, No. 11-0149/MC

constitutional principle at stake is satisfied as is the purpose

behind R.C.M. 307: fair notice to the defendant as to what he

will have to defend against.

What is more, and more important from a systemic

standpoint, the majority “call[s] into question the practice of

omitting the terminal element from the charge and specification”

in the context of Article 134, UCMJ, offenses generally.

Fosler, __ M.J. at __ (9). Posing the question, in turn places

in doubt the text of R.C.M. 307, which plainly permits

specifications to reference elements by necessary implication.

Thus, at the very least, as the Chief Judge notes:

Given the significant reliance on Article 134 charges
in maintaining good order and discipline in the armed
forces, the majority opinion is likely to lead to
extensive litigation about the impact of the decision
on pending courts-martial and appellate proceedings;
and the decision may result in collateral challenges
to prior convictions that relied upon the traditional
specification.

Fosler, __ M.J. at __ (19) (Effron, C.J., dissenting). Whether

done expressly, or by implication, the new court-made standard

may as a practical matter have the effect of invalidating the

text of R.C.M. 307. If the terminal element is not implied in

Appellant’s case, it is not clear under what conditions the

terminal element might ever be implied in the context of an

Article 134, UCMJ, offense.

5
United States v. Fosler, No. 11-0149/MC

II.

There are several additional flaws in the analysis that

warrant discussion. First, the majority’s analysis relies on a

string of cases from the past two years that are not on point,

United States v. McMurrin, 70 M.J. 15, 17 (C.A.A.F. 2011);

United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011); United

States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010); United States

v. Miller, 67 M.J. 385, 388-89 (C.A.A.F. 2009); and United

States v. Medina, 66 M.J. 21, 24-25 (C.A.A.F. 2008). These

cases address Article 134, UCMJ, but they do not address R.C.M.

307 or fair notice of the terminal element for offenses charged

under Article 134, UCMJ. The first four cases address lesser

included offenses. The latter case is about the right of

defendants to know what offense they are pleading to at the time

they plead, thus barring an appellate court from affirming a

plea to a distinct offense after the fact and while a case is on

appeal. Nor do the heightened notice standards applicable to

guilty pleas or lesser included offense instructions address the

same constitutional concerns as the notice pleading standard

applicable to specifications -- until now. The majority

compares apples to oranges. There are no double jeopardy

concerns, for example, created by implying the terminal element

of Article 134, UCMJ, that would necessitate the same notice

standard as the guilty plea and lesser included offense cases.

6
United States v. Fosler, No. 11-0149/MC

In short, these cases do not address whether a specification

under Article 134, UCMJ, is or is not constitutionally

sufficient to state an offense.

Second, the majority’s analysis ignores long-standing

military practice as well as the principles embedded in the

doctrine of stare decisis, which are particularly relevant in

light of this continuous military practice. Indeed, as the

Chief Judge documents, the majority whistles past sixty years of

precedent and many more of continuous and consistent practice by

calling it “historical.” Fosler, __ M.J. __ at __ (22).

However, we should be clear. What the majority dubs

“historical” is the current, consistent, and continuous everyday

practice in the military. It is consistent with the Manual. It

is consistent with this Court’s precedent. And, it is reflected

in the forty-five trailer cases currently pending resolution of

this case. The number is growing. In such a context, the

principle of stare decisis would seem particularly suited.

As the Court has stated, the doctrine of stare decisis is

“the preferred course because it promotes the evenhanded,

predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes to the

actual and perceived integrity of the judicial process.” United

States v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003) (quoting Payne

v. Tennessee, 501 U.S. 808, 827, (1991)). Stare decisis is a

7
United States v. Fosler, No. 11-0149/MC

principle of decision making and need not be applied when the

precedent at issue is unworkable or badly reasoned. United

States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000). “As a

general matter, however, adhering to precedent is usually the

wise policy, because in most matters it is more important that

the applicable rule of law be settled than it be settled right.”

Id. (citation and quotation marks omitted). In this case, the

law is both settled and settled correctly.

During its first term, this Court was presented the

question before the Court today: was it necessary to plead the

so-called terminal element of then Article 96 of the Articles of

War. In United States v. Marker, 1 C.M.A. 393, 3 C.M.R. 127

(1951), the accused, a civilian, stood convicted of three

specifications alleging wrongful acceptance of unlawful gifts of

clothing, payments, and a house from a tire company in Japan.

Upholding the convictions, this Court held:

[W]e find no reason for the inclusion in the specifications
of the words “conduct of a nature to bring discredit upon
the military service.” In truth, we believe the suggested
language to be nothing more than traditionally permissible
surplusage in specifications laid under Article of War 96,
supra. Its use therein can add nothing of legal effect to
an allegation of conduct not of such a discrediting nature
-- and its omission detracts not at all from conduct which
clearly is.3

3
It should be noted that the term “surplusage” appears to refer
to the necessity for including the language in the specification
and was not intended to suggest that the language in the statute
itself was unnecessary.

8
United States v. Fosler, No. 11-0149/MC

Marker, 1 C.M.A. at 400, 3 C.M.R. at 134. The Court’s reasoning

rested on the principle set forth in Hagner v. United States,

285 U.S. 427, 431 (1932). It retains its vitality today.

The true test of the sufficiency of an indictment is not
whether it could have been more definite or certain, but
whether it contains the elements of the offenses intended
to be charged. If the indictment informs the accused of
what he must be prepared to meet, and is sufficiently
definite to eliminate the danger of future jeopardy, it
will be held sufficient.

Marker, 1 C.M.A at 400, 3 C.M.R. at 134. This Court concluded

that the specifications at issue in Marker met these criteria.4

Two months later in United States v. Herndon, 1 C.M.A. 461, 4

C.M.R. 53 (1952), the Court considered whether or not a

specification alleging receipt of stolen property under Article

134, UCMJ, stated an offense. Importantly, the specification

failed to allege the terminal element. Although the issue

presented for review was slightly different, the Court cited

Marker in holding that “the specification . . . herein is not

fatally defective, but instead alleges properly an offense under

Article 134.” Herndon, 1 C.M.A. at 465, 4 C.M.R. at 57.

This practice continued apace until the issue returned on

appeal thirty years later in United States v. Mayo, 12 M.J. 286

(C.M.A. 1982). There, the appellant was convicted under Article

4
While true, the Court in Marker was analyzing Article of War
96, it is beyond dispute that the language of that article
ultimately became the very language of Article 134, UCMJ.

9
United States v. Fosler, No. 11-0149/MC

134, UCMJ, for communicating a bomb hoax. Mayo contended that

the specification was insufficient under Article 134, UCMJ,

because it did not allege that the accused’s conduct was to the

prejudice of good order and discipline. Id. at 293. Citing

Marker and Herndon, this Court summarily disposed of Mayo’s

contention stating, “Short forms of Article 134 specifications

do not require an allegation as to the character of the

accused’s conduct.” Id.

Today, thirty years since Mayo, the Court jettisons this

precedent. However, there is nothing in the record that

indicates long-standing practice and law in this area is

unworkable, badly reasoned, or unfair. In point of fact, the

enduring nature of these precedents, which have gone

unchallenged, suggests that this customary practice has and

continues to be quite workable. This Court’s recent reversal of

long-standing precedent in the area of Article 134, UCMJ, lesser

included offenses does not demonstrate otherwise. Those cases

addressed the issue of whether the terminal element in Article

134, UCMJ, could be implied in specifications alleging

violations of the enumerated offenses. The issue here is

distinct; can the terminal element of Article 134, UCMJ, be

implied in the context of a specification alleging an Article

134, UCMJ, offense, where the President has provided in the

10
United States v. Fosler, No. 11-0149/MC

Manual that the alleged misconduct can only be charged under

Article 134, UCMJ.

The majority’s holding also contradicts long-standing

precedent concerning the sufficiency of a specification

generally. In United States v. Sell, 3 C.M.A. 202, 11 C.M.R.

202 (1953), notwithstanding its citation to the Hagner language

in earlier cases, the Court nonetheless felt there was still

uncertainty in the military justice system as to the test to be

applied. 3 C.M.A. at 206, 11 C.M.R. at 206. The Court took the

language in Hagner, expanded upon it and announced the

following:

The true test of the sufficiency of an indictment is not
whether it could have been made more definite and certain,
but whether it contains the elements of the offense
intended to be charged, and sufficiently apprises the
defendant of what he must be prepared to meet; and, in case
any other proceedings are taken against him for a similar
offense, whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.

Id. In United States v. Fout, 3 C.M.A. 565, 568, 13 C.M.R. 121,

124 (1953) (overruled on other grounds by United States v.

Watkins, 21 M.J. 208 (1986)), the Court refined this standard

stating, “Every essential element of the offense sought to be

charged must be alleged directly or by clear implication in the

specification.” These cases are the bedrock upon which military

practice and R.C.M. 307(c)(3) rest. “A specification is

11
United States v. Fosler, No. 11-0149/MC

sufficient if it alleges every element of the charged offense

expressly or by necessary implication.”

The majority’s conclusion also runs counter to case law

regarding words of criminality in determining the sufficiency of

a specification. A specification is sufficient to allege an

offense if “it contains the elements of the offense intended to

be charged, including words importing criminality or an

allegation as to intent or state of mind where this is

necessary.” United States v. Tindoll, 16 C.M.A. 194, 195, 36

C.M.R. 350, 351 (1966). “[A]lthough addition of words of

criminality . . . cannot make criminal acts which obviously are

not, . . . [the] allegation serves to demonstrate the proscribed

character of accused’s act.”5 United States v. Sadinsky, 14

C.M.A. 563, 565, 34 C.M.R 343, 345 (1964). In Sadinsky, the

accused was convicted of “wrongfully and unlawfully” jumping

5
The majority’s citation of United States v. King, 34 M.J. 95,
97 (C.M.A. 1992), and United States v. Fleig, 16 C.M.A. 444,
445, 37 C.M.R. 64, 65 (1966), for the proposition that words of
criminality do not speak to the elements of the offense is
somewhat dubious. Fosler, __ M.J. __ at __ (16). The adultery
specification in King did not allege the language of the
terminal element, but that was not the basis for the Court’s
conclusion that it failed to state an offense. The problem
there was that although wrongfulness was alleged, the
specification failed to allege that the accused or the other
person was married -- an essential element of adultery and the
essence of the offense itself. Likewise, in Fleig, a
specification purporting to charge the accused with fleeing the
scene of a accident failed to state that the accused’s vehicle
had been in the accident. In both cases, words of criminality
alone could not make criminal acts which obviously were not.

12
United States v. Fosler, No. 11-0149/MC

from his ship while it was underway. 14 C.M.A. at 564, 34

C.M.R. at 343. The Court noted that “the pleading makes clear

that accused did not, under unusual circumstances, jump

overboard in the course of his legitimate duties as, possibly,

to rescue a shipmate, or for some other purpose which might be

completely innocent.” 14 C.M.A. at 465, 34 C.M.R. at 345. The

Court stated that the critical inquiry for this clause 1 offense

was “whether the act was palpably and directly prejudicial to

the good order and discipline of the service” and that “such an

allegation need not be made in a specification laid under the

General Article.” 14 C.M.A. at 566, 34 C.M.R. at 346.

Here, the specification was pleaded under Article 134,

UCMJ, and alleged that a married man wrongfully engaged in

sexual intercourse with a woman not his wife. This Court has

long accepted the traditional meaning of the term wrongful:

That the word [wrongful] has a well-defined meaning when
used in criminal statutes is supported by Webster, who
defines it as doing a thing “in a wrong manner; unjustly;
in a manner contrary to moral lay [sic] or justice.” The
word “wrongful” . . . when used in criminal statutes,
implies a perverted evil mind in the doer of the act. The
word “wrongful” implies the opposite of right.

United States v. West, 15 C.M.A. 3, 7, 34 C.M.R. 449, 453

(C.M.A. 1964); see United States v. Barner, 56 M.J. 131, 136

(C.A.A.F. 2001) (a wrongful act is “one done without legal

justification or with some sinister purpose”); accord United

States v. Reeves, 61 M.J. 108, 111 (C.A.A.F. 2005).

13
United States v. Fosler, No. 11-0149/MC

Outside the military context, words of criminality alone

might not provide such notice. In the military, however, not

all adultery is or should be criminalized. The Manual for

Courts-Martial contains a relatively lengthy list of factors to

be considered in determining when such conduct is prejudicial to

good order and discipline or service discrediting. MCM pt. IV,

para. 62.c.2. In the military, the offense of adultery can only

be prosecuted if it offends good order and discipline or is

service discrediting. Thus, this specification was more than

sufficient to meet the constitutional requirement.

And what of other offenses traditionally charged under

Article 134, UCMJ? For instance, in the absence of language

setting forth the terminal element of Article 134, UCMJ, can one

charged with willfully and wrongfully seizing a person and

holding him against his will reasonably assert that he is not on

notice that the prosecution intends to proceed against him for

kidnapping? See MCM pt. IV, para. 92. Furthermore, could one

credibly claim, in the case of kidnapping, that he is not

sufficiently apprised that such conduct is prejudicial to good

order or service discrediting?

Finally, the majority appears to conflate the requirement

that a specification state an offense with an accused’s right to

more specificity in the allegation. The majority takes the

position that the specification was constitutionally deficient

14
United States v. Fosler, No. 11-0149/MC

because it failed to inform the accused as to which theory of

liability contained in the terminal element the Government

intended to pursue. An accused does have a right to know under

what statutory theory the government is proceeding against him

in those instances where the statute provides alternative ways

it can be violated. However, there is no constitutional

requirement that the specification set forth such theories as

long as the specification otherwise meets the test for

sufficiency. Here, as recounted in Part I, the specification

clearly indicated that the Government was proceeding on a theory

that Appellant’s conduct was service discrediting and/or

undermined good order and discipline. The law is “not whether

it could have been made more definite and certain, but whether

it contains the elements of the offense intended to be charged.”

Hagner, 285 U.S. at 431. If there are several means of

committing the offense contained in the statute, the accused has

a right to have the specification made more definite. State v.

Campbell, 06-0286, pp. 93-94 (La. 05/21/08); 983 So. 2d 810, 870

(in murder case “a defendant may procure details as to the

statutory method by which he committed the offense through a

bill of particulars”); People v. Ingersoll, 506 P.2d 364, 365

(Colo. 1973) (in felony theft case, where offense charged may be

committed in alternative ways, defendant may require prosecution

to state particular manner in which he committed offense by

15
United States v. Fosler, No. 11-0149/MC

filing motion for bill of particulars); accord State v. Carbone,

374 A.2d 215, 224 (Conn. 1977). Like other jurisdictions, the

military justice system provides a remedy if the accused

requires more specificity in the allegation, assuming, as in

this case, the specification is sufficient to allege an offense.

R.C.M. 906(b)(6) allows an accused to move for appropriate

relief in the form of a bill of particulars. The purpose of a

bill of particulars is:

to inform the accused of the nature of the charge with
sufficient precision to enable the accused to prepare for
trial, to avoid or minimize the danger of surprise at the
time of trial, and to enable the accused to plead the
acquittal or conviction in bar of another prosecution for
the same offense when the specification itself is too vague
and indefinite for such purposes.

United States v. Williams, 40 M.J. 379, 381 n.2 (C.M.A. 1994);

United States v. Mobley, 31 M.J. 273, 278 (C.M.A. 1990); R.C.M.

906(b)(6) Discussion. “The purpose of a bill of particulars is

to narrow the scope of the pleadings.” United States v. Paulk,

13 C.M.A. 456, 458, 32 C.M.R. 456, 458 (1963). Moreover, if a

specification, although stating an offense, is still so

defective that the accused appears to have been misled, he may

request a continuance. R.C.M. 906(b)(4) Discussion. In this

case when defense counsel moved to dismiss at the end of the

Government’s case, he did not complain that the defense had been

16
United States v. Fosler, No. 11-0149/MC

misled because of the absence of language alleging the conduct

was prejudicial to good order or service discrediting.6

II.

There are a number of legal policy and systemic questions

raised by the majority opinion that are left unanswered. An

opinion is not required to address all questions in all contexts

that might be raised; however, where as here, the opinion

represents a sea change in practice and law depending on how it

is applied, additional guidance is warranted. A number of

questions arise.

6
The offense of larceny under Article 121, UCMJ, is a classic
example of how the aforementioned long-standing principles play
out. Contained in the statutory text of Article 121, UCMJ, are
three alternative methods of committing the offense -- a
wrongful taking, obtaining or withholding. The statute also
requires that the offender harbor the specific intent to
permanently deprive or defraud. Yet, since (and even before)
the inception of the UCMJ, it has been permissible to simply
allege in the specification that the accused “did steal.”
Presumably, if the accused desires specificity from the
prosecution as to which “theory” of larceny is being pursued
against him, he may move for a bill of particulars. Neither
this Court nor any other jurisdiction where a larceny statute is
derived from the common law has ever required otherwise.
Apparently, the words of criminality, namely, “did steal” are
sufficient to not only imply the essential element of specific
intent, but also to encompass any (or all) of the three
alternative means of committing the offense of larceny. Given
this, it seems incongruous that this Court should hold that a
specification alleging wrongful adultery pleaded under Article
134, UCMJ, is constitutionally deficient to provide notice to an
accused of the criminal character of his conduct. Here,
Appellant could have simply moved to require the Government to
specify which alternative method under Article 134, UCMJ, was
being pursued.

17
United States v. Fosler, No. 11-0149/MC

First, how does Fosler apply to past and present cases?

Although the majority reverses appellant’s conviction based on

textual analysis of the particular specification, the opinion

appears to implicate and question all Article 134, UCMJ, cases

in which the terminal element has not been specified. If so, it

has done so without indication as to how this new rule will or

should apply to past cases or to cases pending in the military

justice system. If a specification fails to state an offense,

for example, can an accused ever be convicted of that

specification, whether or not he objects to the specification?

Can an accused plead guilty to a specification that does not

state an offense? If so, how? Similarly, in the context of a

contested case, can an accused waive the right to be tried on a

specification that does not state an offense? If so, can one

knowingly waive that right if counsel and accused were not aware

at the time that the specification did not state an offense?

And, of course, how does the writ of coram nobis apply to past

cases? See United States v. Denedo, 129 S. Ct. 2213 (2009).

Second, what standing does the Manual now possess in the

context of Article 134, UCMJ? Is it law? Does it bind military

judges? If the Manual did not place Appellant on notice that he

would have to defend against a charge of criminal adultery that

was service discrediting or prejudicial to good order and

discipline, then one must ask what role or standing does the

18
United States v. Fosler, No. 11-0149/MC

Manual retain going forward? The question is raised because as

recounted in Part I, and in the Chief Judge’s dissent, the

Manual states that “the adulterous conduct must either be

directly prejudicial to good order and discipline or service

discrediting.” MCM, pt. IV, para. 62.c.2. Moreover,

Appellant’s specification is based on the sample in the Manual.

The question is procedural as well. Rule for Courts-

Martial 307, which is at minimum an exercise in delegated

presidential authority pursuant to Article 36, UCMJ,7 permits

elements to be charged by necessary implication. However, there

is no guidance from the majority as to how R.C.M. 307 applies to

Article 134, UCMJ, offenses if it does not apply in this case.

This Court has long stated that the Manual is persuasive

authority, but in recent Article 134, UCMJ, cases this Court has

not been persuaded. It would seem that if the Commander in

Chief’s constitutional authority were relevant in military

justice practice, it would be most relevant with respect to

7
The text of Article 36(a), UCMJ, is as follows:

Pretrial, trial, and post-trial procedures, including modes
of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military
tribunals, and procedures for courts of inquiry, may be
prescribed by the President by regulations which shall, so
far as he considers practicable, apply the principles of
law and the rules of evidence generally recognized in the
trial of criminal cases in the United States district
courts, but which may not be contrary to or inconsistent
with this chapter.

19
United States v. Fosler, No. 11-0149/MC

Articles 92 and 134, UCMJ, which arguably are most directly

related to regulating discipline in the armed forces and not

just to providing a system of justice for the armed forces.

Without reference to the Manual it is not clear how the

President as Commander in Chief might exercise whatever

authority he might inherently hold as Commander in Chief in

defining the procedure and substance of military justice. And,

without reference to the Manual, it is not clear how members of

the military will be put on notice as to what conduct might

violate Article 134, UCMJ. Certainly, the statutory elements

alone do not provide such notice. But if the Manual is

unpersuasive here and unpredictable in application, how then is

fair notice provided?

One suspects that the issue is not one of fair notice in

this case or with R.C.M. 307, but with Article 134, UCMJ,

itself. Has Article 134, UCMJ, lost its capacity to serve as a

predictable, and thus fair and reliable tool to uphold good

order and discipline? Jones, 68 M.J. at 474 (Baker, J.,

dissenting). Is Parker v. Levy, 417 U.S. 733 (1974), still good

law?

“[T]he military is, by necessity, a specialized society

separate from civilian society.” Id. at 743. And it has, by

necessity, “developed laws and traditions of its own during its

long history.” Id. Because of the special distinctions

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United States v. Fosler, No. 11-0149/MC

separating it from the civilian society, “the military has

developed what ‘may not unfitly be called the customary military

law’ or ‘general usage of the military service.’” Id. at 744

(quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ

“cannot be equated to a civilian criminal code,” id. at 749, and

with respect to Article 134, UCMJ, specifically, it “must be

judged ‘not in vacuo, but in the context in which the years have

placed it.’” Id. at 752 (quoting United States v. Frantz, 2

C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). Do these observations

retain the same force and effect today as they did at the time

they were made? Is service custom and practice relevant to

Article 134, UCMJ?

These questions all now appear in play. In such a context,

one might ask if the interests of justice, due process, and the

significant interest in discipline in the military warrant a

more holistic executive and legislative review of Article 134,

UCMJ, rather than the unpredictable piecemeal adjudication of

discrete issues.

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