In a per curiam opinion in United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.), a three-judge panel of the NMCCA reverses a plea of guilty to adultery in violation of Article 134, with this important reminder:
In 2002, the President issued Executive Order 13,262, 67 F.R. 18773, 18778 (2002), amending the MCM to create a separate explanation of the terminal element unique to adultery offenses. See United States v. Jonsson, 67 M.J. 624 (C.G.C.C.A. 2009). Since then, the MCM provides, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial to good order and discipline includes 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.” MCM (2012 ed.), Part IV, ¶ 62c(2). “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Id. The explanation then goes on to provide a non-exhaustive list of factors to consider when determining whether adulterous acts are prejudicial to good order and discipline or service discrediting.
This new explanation operated to narrow the scope of adultery as an offense under the UCMJ.
Slip op. at 5. The CCA reversed the plea after finding that military judge failed “to ensure the appellant understood the meaning of prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces not only in a generic Article 134 sense, but in the narrower sense defined by the President specifically for the offense of adultery.” Slip op. at 6 (marks omitted).