## Facts

- Lance Corporal James N. Fosler, a married U.S. Marine, served as a drill instructor with NJROTC in Rota, Spain.
- Fosler admitted that on or about December 26, 2007, he had sexual intercourse with SK, a sixteen-year-old NJROTC student and the daughter of an active-duty Navy servicemember.
- Fosler was charged with rape and aggravated sexual assault under Article 120, UCMJ, and adultery under Article 134, UCMJ; he was acquitted of the Article 120 offenses but convicted of adultery.
- The adultery specification alleged that Fosler, “being a married man,” wrongfully had sexual intercourse with a woman not his wife and cited Article 134, but it did not expressly allege any Article 134 “terminal element.”
- Before findings, Fosler moved to dismiss the adultery specification for failure to state an offense based on omission of an element; the military judge denied the motion, preserving the issue for appeal.
- The Navy-Marine Corps Court of Criminal Appeals affirmed; the Court of Appeals for the Armed Forces granted review on whether the specification stated an offense.

## Issues

1. Whether an Article 134 adultery specification that omits all terminal elements (prejudice to good order and discipline, service-discrediting conduct, or a non-capital crime/offense) states an offense when challenged at trial.

## Decision

- The Court of Appeals for the Armed Forces reversed the service court’s decision.
- The court held the government failed to allege a terminal element either expressly or by necessary implication, so the adultery specification failed to state an offense under Article 134.
- The court set aside the adultery conviction and dismissed the adultery charge and specification.

## Legal Principles

- Article 134 requires proof of (1) specified misconduct and (2) at least one terminal element: prejudice to good order and discipline, service-discrediting conduct, or a non-capital crime/offense.
- A specification must allege the essential elements of the offense, either expressly or by necessary implication, to provide fair notice and protect against double jeopardy.
- A bare citation to Article 134 and description of “adultery” does not, by itself, plead which terminal clause is charged, because the clauses reflect distinct theories of criminality.
- When the sufficiency of a specification is challenged before findings, the pleading is assessed under a more exacting standard than post-conviction liberal construction; omission of an element is not cured by inference from trial evidence or context.

## Conclusion

Because the adultery specification did not allege any Article 134 terminal element and Fosler timely objected at trial, the charge failed to state an offense; the adultery conviction was set aside and the specification dismissed.


United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011)