UNITED STATES NAVY-MARINE CORPS
                   COURT OF CRIMINAL APPEALS
                        WASHINGTON, D.C.

                                 Before
            J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                        Appellate Military Judges

                        UNITED STATES OF AMERICA

                                        v.

                         MICHAEL L. FREEBERG
                    SERGEANT (E-5), U.S. MARINE CORPS

                              NMCCA 201400172
                          SPECIAL COURT-MARTIAL


Sentence Adjudged: 21 February 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding Officer, Headquarters and
Headquarters Squadron, Marine Corps Air Station Miramar, San
Diego, CA.
Staff Judge Advocate's Recommendation: Capt C.N. Campaso,
USMC.
For Appellant: CDR Ricardo A. Berry, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN; LT Ian D.
MaClean, JAGC, USN.

                             30 September 2014

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                      OPINION OF THE COURT
      ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE
AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     At a   special court-martial, a military judge found the
appellant   guilty, pursuant to his pleas, of two specifications of
violating   a lawful general regulation (fraternization under the
U.S. Navy   Regulations and possession of drug paraphernalia under
Secretary of the Navy Instruction 5300.23E), one specification of
making a false official statement, one specification each of
wrongful use and possession of anabolic steroids, and one
specification of adultery, in violation of Articles 92, 107, 112a,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907,
912a, and 934. The military judge sentenced the appellant to
confinement for a period of three months, reduction to pay grade
E-1, and a bad-conduct discharge. While the pretrial agreement
only required the convening authority suspend all confinement in
excess of 75 days, as a matter of clemency, he suspended all
confinement in excess of time served as of 20 March 2014.

     In his sole assignment of error, the appellant asserts his
plea to the adultery specification was improvident because the
military judge failed to explain or establish an adequate factual
predicate for the crime of adultery as narrowed by the President
in his 2002 amendment to the Manual for Courts-Martial. We agree
and take corrective action in our decretal paragraph. Arts. 59(a)
and 66(c), UCMJ.

                            Background

     During his plea colloquy with the appellant, the military
judge informed the appellant of the elements of the offense of
adultery, including the third, or “terminal,” element: “that under
the circumstances, your conduct was to the prejudice of good order
and discipline in the Armed Forces and was of a nature to bring
discredit to the Armed Forces.” Record at 64. He did not further
explain or provide any definitions regarding the third element but
instead referred to definitions contained in the Stipulation of
Fact and asked if the appellant had any questions about them. The
appellant responded he did not.

    The Stipulation of Fact provided the following definitions:

         Conduct prejudicial to good order and discipline
     is conduct that causes a reasonably direct and obvious
     injury to good order and discipline. Service
     discrediting conduct is conduct that tends to harm the
     reputation of the service or lower it in public
     esteem.

         . . . .

         Not every act of adultery constitutes an offense
     under the UCMJ. Your conduct must also have been
     prejudicial to good order and discipline in the armed

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     forces or was of a nature to bring discredit upon the
     armed forces.

Prosecution Exhibit 1 at 21 – 22.

     In the ensuing plea colloquy, buttressed by the Stipulation
of Fact, the appellant admitted that while he remained legally
married, he engaged in sexual intercourse with Lance Corporal HM,
a woman not his wife. He stated he got to know Lance Corporal HM
while the two worked in the same shop within the squadron, but did
not begin to date her until she transferred to a different shop.

     Some three years prior to this, the appellant and his wife
had decided to separate, and his wife left him in San Diego and
moved to Florida. The appellant and his wife were mutually aware
that the other had entered into a dating relationship with someone
else. The appellant affirmed the military judge’s question: “So
this was understood between you and your wife that we are
eventually going to be getting divorced, and now that we are
physically separated we are going to go our own separate ways?”
Record at 67. The wife never reported the appellant’s
relationship with Lance Corporal HM to the command and she was not
a Marine herself.

     Asked how he thought his adulterous conduct was prejudicial
to good order and discipline, the appellant responded, “I guess
the best I can say is perception is reality. I’m sure that
somebody that I was working with or somebody at the command, you
know, knew that I was married and the fact that I was having an
affair with a fellow Marine looked badly upon myself and my
credibility.” 

The appellant also answered
affirmatively when the military judge asked, “[W]e are held to a
different standard, and by failing to obey the rules – you in
particular failing to obey the rules – no matter what you may
think about it, it would be difficult for you to actually try to
uphold the standards you would expect of maybe your junior
Marines; correct?” 

     Asked how the appellant’s conduct was of a nature to bring
discredit upon the armed forces, he replied “because it gives us a
bad name. It says, hey, you know, these guys are married. To the
public’s eye we may be happily married, but they might not know
all the details and that we are, you know, having an actual
marital affair against our spouse. I mean, that can look bad in
the public’s eyes.” 

stated he was not aware if
other people knew he and Lance Corporal HM were seeing each other—


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—that they were trying to be discreet about it——“but it’s entirely
possible.” 

     The appellant stated he was never told to stop seeing Lance
Corporal HM, although Master Sergeant S, testifying as a Defense
sentencing witness, stated he had “heard through scuttlebutt” that
the appellant and Lance Corporal HM may have been dating one
another and that “[t]he Marines and I had addressed it with [the
appellant].” 

                               Analysis

      A military judge's decision to accept a guilty plea is
reviewed for an abuse of discretion. United States v. Inabinette,

, 322 (C.A.A.F. 2008). An appellate court will set
aside a decision to accept a guilty plea only where it finds a
substantial basis in law or fact for questioning the plea. United
States v. Shaw, 

, 462 (C.A.A.F. 2007). The record must
contain a sufficient factual basis to support a guilty plea.
United States v. Care, 

(C.M.A. 1969); RULE FOR COURTS-
MARTIAL 910(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Furthermore, the record must indicate not only “the accused’s
understanding and recitation of the factual history of the crime,
but also an understanding of how the law relates to those facts.”
United States v. Medina, 

, 26 (C.A.A.F. 2008) (citation
omitted). “An essential aspect of informing [an accused] of the
nature of the offense is a correct definition of legal concepts.
The judge’s failure to do so may render the plea improvident.”
United States v. Negron, 

, 141 (C.A.A.F. 2004)
(citations omitted).

     The elements of adultery are: (1) that the accused wrongfully
had sexual intercourse with a certain person; (2) that at the
time, the accused or the other person was married to someone else;
and (3) that, under the circumstances, the conduct of the accused
was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed
forces. MANUAL FOR COURTS-MARTIAL, UNITED STATES, (2012 ed.), Part IV,
¶ 62b.

     While the military judge correctly listed the above elements,
this case turns on whether he erred by failing to instruct on and
elicit an adequate factual predicate regarding the President’s
explanation of those elements found in paragraph 62c of the
Manual. We find he did so err.



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     Prior to 2002, the MCM explanation of the terminal element of
adultery——that, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the armed
forces——defaulted to the general explanation applicable to all
offenses under Article 134. MCM (2000 ed.), Part IV, ¶¶ 60c and
62c. Thus, as with other Article 134 offenses, “to the prejudice
of good order and discipline” referred “only to acts directly
prejudicial to good order and discipline and not to acts which are
prejudicial only in a remote or indirect sense[,]” 

60
c(2)(a), while “of a nature to bring discredit upon the armed
forces” was “conduct which has a tendency to bring the service
into disrepute or which tends to lower it in public esteem[,]” 

60c(3).

     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, 

(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.”

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.1 

. The

1
  The Government does not challenge the authority of the President to narrow the
scope of an offense under Article 134 in this manner; nor do we have cause to do
so here. See generally, United States v. Zachary, 

, 818 (Army
Ct.Crim.App. 2005), aff’d 

(C.A.A.F. 2006) (When the President has
enumerated Article 134 offenses in Part IV of the MCM, “courts have generally
accepted the President’s explanation of these elements as defining what is
required to obtain a conviction for a specified offense under Article 134,
UCMJ.” (footnote omitted)); United States v. Zachary, 

(C.A.A.F.
2006) (“In analyzing offenses charged under the general article, Article 134,
UCMJ, we look at both the statute and the President’s explanation in MCM pt. IV
                                       5
military judge thus had a duty 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.

     The military judge erred in this case by failing to do so.2
The record is devoid of any indication the appellant was aware of
the definition of “directly prejudicial” as “including 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” or the definition of “discredit upon the armed
forces” as including “adulterous conduct that has a tendency,
because of its open and notorious nature, to bring the service
into disrepute, make it subject to public ridicule, or lower it in
public esteem.” MCM (2012 ed.), Part IV, ¶ 62c(2)(emphasis
added).

     This does not necessarily end our inquiry. Even when a court
finds error in advising an accused, it may still find the guilty
plea provident if, considering the record as a whole, there are
factual circumstances that objectively support the plea. 

. We do not find such circumstances in this record.
While the military judge probed to determine whether the
appellant’s adulterous conduct was prejudicial to good order and
discipline or service discrediting in a broader, pre-2002 sense,
nothing in the record objectively supports that the appellant
believed or admitted his conduct met the more exacting standard
articulated in the post-2002 MCM.


[] to determine the elements of the offense.”); United States v. Jones, 

, 472 (C.A.A.F. 2010) (citing Parker v. Levy, 

, 753-56 (1974))
(While holding that Presidentially-listed lesser included offenses are not
binding on courts, noted that “Presidential narrowing of the ‘general’ article
through examples of how it may be violated” is a different question and “is part
of why Article 134, UCMJ, is not unconstitutionally vague.”). But see, United
States v. Fosler, 

, 231 (C.A.A.F. 2011)) (holding that sample
adultery specification in Part IV of the MCM was hortatory vice authoritative
and noting that “the President does not have the authority to decide questions
of substantive criminal law.”) (citations omitted)).
2
  We note that while perhaps not all providence guides have been updated, the
providence inquiry recommended in the 2012 Military Judges’ Benchbook, DA
Pamphlet 27-9, § 3-62-1, includes the definitions and instructions we find
missing here. Contrary to the appellee’s position, both “conduct prejudicial to
good order and discipline” and “service discrediting conduct” were, by virtue of
being charged and pled to, “in issue,” Appellee’s Answer of 29 Aug 2014 at 10–
11, and thus should have been fully explained.
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     Accordingly, we find the military judge abused his discretion
in accepting the plea of guilty to the adultery specification and
will take corrective action in our decretal paragraph.

                       Sentence Reassessment

     We next determine whether we can reassess the sentence in
accordance with the principles set forth in United States v.
Moffeit, 

(C.A.A.F. 2006), United States v. Cook, 

(C.A.A.F. 1998), and United States v. Sales, 

(C.M.A. 1986). We are satisfied that the sentencing landscape in
this case has not changed dramatically as a result of our decision
to set aside the finding of guilty to the adultery specification.
See United States v. Buber, 

, 479 (C.A.A.F. 2006). We
conclude that the adjudged sentence for the remaining offenses
would have been at least the same as that adjudged by the military
judge and approved by the convening authority.

                            Conclusion

     The findings of guilty to Charge V and to Specification 3
thereunder are set aside and that Charge and Specification are
dismissed. We affirm the remaining findings and the sentence as
approved by the convening authority.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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