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