(concurring in part and in the result):
I concur on reduction of the forfeiture. Concerning adultery, I concur with the conclusion that the record contains a conflict that was not resolved, rendering the plea to adultery improvident. I do not concur that there was an insufficient factual basis before the conflict arose, and I would not reach the question of whether Appellant had sufficient understanding of the law.
A guilty plea should not be overturned based on a mere possibility of a defense, and appellate courts should not speculate as to the existence of facts that might invalidate a guilty plea. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.1996). The majority alludes to the possibility that Appellant’s subordinates were unaware of his encounter with Seaman F, even though “a select few” people at the unit did know, and holds the lack of inquiry on the point to be a defect. It would have been better if the military judge had inquired on the point, but surely this is a mere possibility of a defense.
Concerning Appellant’s understanding of the law of adultery under Article 134, UCMJ, I would not defend the failure of the military judge to explain the elements using the MCM language of 2002 and after. Still, it is by no means clear that the new language, “conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember,” is so different from the language the military judge used, “conduct that causes a reasonably direct and obvious injury to good order and discipline,” as to absolutely require that it be explained to an accused who is pleading guilty to adultery. It is unnecessary for us to reach that issue, given the dispositive nature of the evident conflict in the record concerning whether Appellant was, at the time of their sexual encounter, Seaman F’s supervisor.