In U.S. v. Leubecker, No. 201100091, The N-MCCA ruled that the rule set forth in U.S. v. Fosler, 70 M.J. 225 (C.A.A.F., 2011) (an offense under Clause 1 or 2 of Article 134, UCMJ, must state the applicable terminal element) is inapplicable where the accused pleads guilty. Citing U.S. v. Watkins, 21 M.J. 208 (C.M.A., 1986), the court noted that:
the appellant entered into a pretrial agreement that contemplated guilty pleas to the General Article offenses; he received the correct statutory elements and definitions from the military judge; and he satisfactorily completed the providence inquiry. (Op. at 2)
The court also distinguished the Art. 134 specification at issue in Fosler (Adultery) from those at issue in Leubecker (Communicating a threat and Breaking restriction). Noting that adulterous conduct alone, without an element of prejudice to good order and discipline or service discrediting nature, “probably is not criminal” under the UCMJ.
If the Leubecker rule is upheld, it will likely have the biggest impact on Summary Courts-Martial, which are reviewed for legal error under Article 64, UCMJ. Most Summary Courts are guilty-plea cases, and many are conducted entirely by unit personnel and without the assistance of attorneys, resulting in specifications that, at best, track the sample language in the Manual for Courts-Martial (which does not include the terminal element).