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


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  •                          UNITED STATES, Appellee
    v.
    James N. FOSLER, Lance Corporal
    U.S. Marine Corps, Appellant
    No. 11-0149
    Crim. App. No. 201000134
    United States Court of Appeals for the Armed Forces
    Argued May 16, 2011
    Decided August 8, 2011
    STUCKY, J., delivered the opinion of the Court, in which ERDMANN
    and RYAN, JJ., joined. EFFRON, C.J., filed a dissenting
    opinion. BAKER, J., filed a dissenting opinion.
    Counsel
    For Appellant:    Major Jeffrey R. Liebenguth, USMC (argued).
    For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
    Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief).
    Military Judge:    Moira Modzelewski
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Fosler, No. 11-0149/MC
    Judge STUCKY delivered the opinion of the Court.
    To establish a violation of Article 134, Uniform Code
    of Military Justice (UCMJ), 
    10 U.S.C. § 934
     (2006), the
    government must prove beyond a reasonable doubt both that
    the accused engaged in certain conduct and that the conduct
    satisfied at least one of three listed criteria.   The
    latter element is commonly referred to as the “terminal
    element” of Article 134 and the government must prove that
    at least one of the article’s three clauses has been met:
    that the accused’s conduct was (1) “to the prejudice of
    good order and discipline,” (2) “of a nature to bring
    discredit upon the armed forces,” or (3) a “crime[ or]
    offense[] not capital.”   Article 134.   We hold that the
    Government failed to allege at least one of the three
    clauses either expressly or by necessary implication and
    that the charge and specification therefore fail to state
    an offense under Article 134.
    I.
    Contrary to his pleas, Appellant was convicted of
    adultery in violation of Article 134.    On September 21,
    2009, he was sentenced to a bad-conduct discharge,
    confinement for thirty days, forfeiture of all pay and
    allowances, and reduction to the lowest enlisted grade.     On
    February 5, 2010, the convening authority approved the
    2
    United States v. Fosler, No. 11-0149/MC
    sentence and, with the exception of the bad-conduct
    discharge, ordered it executed.    On October 28, 2010, the
    United States Navy-Marine Corps Court of Criminal Appeals
    (CCA) affirmed the findings and the sentence.   United
    States v. Fosler, 
    69 M.J. 669
    , 678 (N-M. Ct. Crim. App.
    2010).   On February 9, 2011, this Court granted review to
    determine whether the charge and specification leading to
    Appellant’s conviction for adultery in violation of Article
    134 stated an offense.
    II.
    While a drill instructor at the Naval Junior Reserve
    Officer Training Corps (NJROTC) in Rota, Spain, Appellant
    admitted to having sexual intercourse on December 26, 2007,
    with SK, a sixteen-year-old high school student enrolled in
    NJROTC, the daughter of an active duty Navy servicemember.
    The evidence demonstrated that other drill instructors and
    NJROTC students were aware of the sexual relations between
    Appellant and SK.   SK claimed that the intercourse was not
    consensual.
    Appellant was charged with rape and aggravated sexual
    assault in violation of Article 120, UCMJ, 
    10 U.S.C. § 920
    (2006), and with adultery in violation of Article 134.
    Appellant was ultimately acquitted of the Article 120
    3
    United States v. Fosler, No. 11-0149/MC
    charges.   The charge sheet described the Article 134
    allegation, the offense of conviction, as follows:
    Charge II:   VIOLATION OF THE UCMJ, ARTICLE 134
    Specification: 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, . . . wrongfully hav[e] sexual
    intercourse with [SK], a woman not his wife.
    After the end of the Government’s case-in-chief, trial
    defense counsel moved to dismiss the specification both
    under Rule for Courts-Martial (R.C.M.) 917 (motion for a
    finding of not guilty due to insufficient evidence), and
    because the Government “failed to allege [the terminal
    element] in the charge sheet,” and therefore that the
    charge and specification “fail[ed] to state an offense.”
    As the CCA noted, this second motion should be “considered
    as a motion to dismiss under R.C.M. 907.”   Fosler, 69 M.J.
    at 670 n.1.
    The military judge denied both motions.    Concerning
    the motion to dismiss, the military judge stated that
    “[t]here’s no requirement that the government has to either
    state [which clause of the terminal element is alleged], or
    state either of them in the [s]pecification.”   During the
    findings phase, the military judge instructed the members
    regarding clauses 1 and 2.
    4
    United States v. Fosler, No. 11-0149/MC
    III.
    Historically, the express allegation of the terminal
    element of Article 134 has not been viewed as necessary.
    The origin of the modern Article 134, the general article,
    can be traced back to before the founding of the nation --
    namely, the first American Articles of War in 1775.1
    William Winthrop, Military Law and Precedents 720 (2d ed.
    Government Printing Office 1920) (1895).   Two points can be
    made about jurisprudence under the general article.    First,
    “‘conduct to the prejudice of good order and military
    discipline’” -- and when it was added in 1916, “conduct of
    a nature to bring discredit upon the armed forces” –-
    “[was] deemed to be involved in every specific military
    crime,” and was therefore available as a lesser included
    offense (LIO) of the enumerated articles of the Articles of
    War and later the UCMJ.   See United States v. Foster, 
    40 M.J. 140
    , 143 (C.M.A. 1994), overruled in part by United
    States v. Miller, 
    67 M.J. 385
    , 389 (C.A.A.F. 2009);
    Winthrop, supra at 109.   As a consequence, an accused could
    be convicted under Article 134 as an LIO of nearly any
    offense charged.   As the charged offense was an enumerated
    article and therefore did not contain the terminal element,
    1
    As the Articles of War were revised, the numbering of the
    general article has been changed.
    5
    United States v. Fosler, No. 11-0149/MC
    its explicit allegation must have been considered
    unnecessary.   The trier of fact was nonetheless required to
    find that the terminal element had been proven beyond a
    reasonable doubt to obtain a conviction under Article 134
    as an LIO.
    Second, the references relied upon by practitioners
    did not treat the general article’s terminal element as a
    requisite component of the charge and specification.2    To
    provide guidance to practitioners, both the Manual for
    Courts-Martial (MCM) and authoritative works such as
    Colonel Winthrop’s treatise included form charges and
    specifications for the various articles.   See, e.g., Manual
    for Courts-Martial, United States app. 6c (1951 ed.);
    Winthrop, supra at 1010-23.   This guidance never had the
    force of law, but was undoubtedly relied upon in everyday
    practice and generally reflective of the authors’
    understanding of the law at the time.
    With few exceptions, sample specifications provided
    for the general article did not indicate that the terminal
    element should be alleged, though the sample charges often
    2
    To understand this point, some background information is
    helpful. In military justice, a charge consists of two parts:
    the “charge” -- typically, a statement of the article alleged to
    have been violated -- and the “specification” -- the more
    detailed description of the conduct allegedly violative of the
    article. R.C.M. 307(c)(2), (3).
    6
    United States v. Fosler, No. 11-0149/MC
    suggested specific reference to the general article.    See
    Winthrop, supra at 1022 (suggesting that the terminal
    element be listed in the charge, but not in the
    specification, and without explicit reference to the
    general article); A Manual for Courts-Martial, United
    States Army app. 3 at 349-350B (1917 ed.) (addressing the
    Articles of War of 1916, with the newly enacted predecessor
    to the modern clause 2, and suggesting that the charge
    explicitly reference the general article, but that
    reference to the terminal element was largely unnecessary);
    A Manual for Courts-Martial, United States Army 254-57
    (1928 ed.) (same); MCM app. 6c at 488-95 (1951 ed.) (same,
    as applied to Article 134 in the newly enacted UCMJ); MCM
    pt. IV, paras. 60-113 (2005 ed.) (same); MCM pt. IV, paras.
    60-113 (2008 ed.) (same).
    This Court previously approved of such practices.     See
    United States v. Mayo, 
    12 M.J. 286
    , 293-94 (C.M.A. 1982);
    United States v. Marker, 
    1 C.M.A. 393
    , 400, 
    3 C.M.R. 127
    ,
    134 (1952) (“[W]e find no reason for the inclusion in the
    specification of the words ‘conduct of a nature to bring
    discredit upon the military service.’”); see also United
    States v. Smith, 
    39 M.J. 448
    , 449-51 (C.M.A. 1994) (stating
    that the Court had previously held that a specification did
    “allege the military offense of obstruction of justice
    7
    United States v. Fosler, No. 11-0149/MC
    under Article 134” even though it did not expressly allege
    the terminal element); United States v. Wolfe, 
    19 M.J. 174
    ,
    175-76 & n.1 (C.M.A. 1985) (upholding an Article 134
    conviction omitting express reference to the terminal
    element); United States v. Maze, 
    21 C.M.A. 260
    , 
    45 C.M.R. 34
     (1972) (same); United States v. Herndon, 
    1 C.M.A. 461
    , 
    4 C.M.R. 53
     (1952) (same).
    More recent cases have required a greater degree of
    specificity in charging.   The Supreme Court, addressing the
    relationship between the charged offense and permissible
    offenses of conviction, explained in Schmuck v. United
    States that the accused’s constitutional right to notice
    “would be placed in jeopardy” if the government were “able
    to request an instruction on an offense whose elements were
    not charged in the indictment.”   
    489 U.S. 705
    , 718 (1989).
    This concern led the Supreme Court to adopt the elements
    test as the appropriate method of determining whether an
    offense is an LIO of the charged offense -- and therefore
    available as an offense of conviction.    This test requires
    that “the indictment contain[] the elements of both
    offenses and thereby gives notice to the defendant that he
    may be convicted on either charge.”   
    Id.
    In a line of recent cases drawing on Schmuck, we have
    concluded that the historical practice of implying Article
    8
    United States v. Fosler, No. 11-0149/MC
    134’s terminal element in every enumerated offense was no
    longer permissible.   See United States v. McMurrin, 
    70 M.J. 15
    , 17 (C.A.A.F. 2011); United States v. Girouard, 
    70 M.J. 5
    , 9 (C.A.A.F. 2011); United States v. Jones, 
    68 M.J. 465
    ,
    468 (C.A.A.F. 2010); Miller, 67 M.J. at 388-89; United
    States v. Medina, 
    66 M.J. 21
    , 24-25 (C.A.A.F. 2008).
    The Court’s holdings in this line of cases -- that an
    accused’s “constitutional rights to notice and to not be
    convicted of a crime that is not an LIO of the [charged]
    offense” are violated when an accused is convicted of an
    Article 134 offense as an LIO of a non-Article 134 charged
    offense, see, e.g., Girouard, 70 M.J. at 10 (citing U.S.
    Const. amends. V, VI) -- call into question the practice of
    omitting the terminal element from the charge and
    specification.   This is so because not “‘all of the
    elements’” of the offense of conviction are “‘included in
    the definition of the offense of which the defendant is
    charged.’”   Id. (emphasis in original) (quoting Patterson
    v. New York, 
    432 U.S. 197
    , 210 (1977)).
    In light of this recent case law, we must determine
    whether the military judge erred by denying Appellant’s
    motion to dismiss for failure to state an offense.
    9
    United States v. Fosler, No. 11-0149/MC
    IV.
    The Constitution protects against conviction of
    uncharged offenses through the Fifth and Sixth Amendments.
    See Russell v. United States, 
    369 U.S. 749
    , 761 (1962).
    The rights at issue here include the same rights we
    addressed in the context of our LIO jurisprudence:
    The rights at issue in this case are constitutional in
    nature. The Fifth Amendment provides that no person
    shall be “deprived of life, liberty, or property,
    without due process of law,” U.S. Const. amend. V, and
    the Sixth Amendment provides that an accused shall “be
    informed of the nature and cause of the accusation,”
    U.S. Const. amend. VI.
    Girouard, 70 M.J. at 10; see also McMurrin, 70 M.J. at 18-
    19 (quoting Girouard, 70 M.J. at 10).
    Applying these protections, we set aside convictions
    under Article 134 in the LIO context because the charges
    and specifications in both cases alleged a violation of an
    enumerated article and we could not interpret the elements
    of the enumerated articles to “necessarily include[]” the
    terminal element.   See Article 79, UCMJ, 
    10 U.S.C. § 879
    (2006); see, e.g., Jones, 68 M.J. at 473.   We were
    compelled to reach this result in multiple cases even
    though we employ “normal principles of statutory
    construction,” United States v. Alston, 
    69 M.J. 214
    , 216
    (C.A.A.F. 2010) (rejecting a requirement that elements
    “employ identical statutory language”), because none of the
    10
    United States v. Fosler, No. 11-0149/MC
    enumerated articles we examined contained elements the
    ordinary understanding of which could be interpreted to
    mean or necessarily include the concepts of prejudice to
    “good order and discipline” or “conduct of a nature to
    bring discredit upon the armed forces,” Article 134; see
    Girouard, 70 M.J. at 9.
    In the instant case, we are called upon to determine,
    not whether the terminal element is necessarily included in
    the elements of the charged offense, but whether it is
    necessarily implied in the charge and specification.
    Though the object we must construe is different -- elements
    versus charge and specification -- the basic question is
    the same:   using the appropriate interpretive tools, can
    the relevant statutory or, as here, charging language be
    interpreted to contain the terminal element such that an
    Article 134 conviction can be sustained?
    The military is a notice pleading jurisdiction.
    United States v. Sell, 
    3 C.M.A. 202
    , 206, 
    11 C.M.R. 202
    ,
    206 (1953).   A charge and specification will be found
    sufficient if they, “first, contain[] the elements of the
    offense charged and fairly inform[] a defendant of the
    charge against which he must defend, and, second, enable[]
    him to plead an acquittal or conviction in bar of future
    prosecutions for the same offense.”   Hamling v. United
    11
    United States v. Fosler, No. 11-0149/MC
    States, 
    418 U.S. 87
    , 117 (1974); see also United States v.
    Resendiz-Ponce, 
    549 U.S. 102
    , 108 (2007) (citations and
    quotation marks omitted); United States v. Sutton, 
    68 M.J. 455
    , 455 (C.A.A.F. 2010); United States v. Crafter, 
    64 M.J. 209
    , 211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R.
    at 206.    The rules governing court-martial procedure
    encompass the notice requirement:     “A specification is
    sufficient if it alleges every element of the charged
    offense expressly or by necessary implication.”
    R.C.M. 307(c)(3).
    The requirement to allege every element expressly or
    by necessary implication ensures that a defendant
    understands what he must defend against:    “[A]lthough the
    terms Congress chose for [Article 134] are broad, . . .
    what is general is made specific through the language of a
    given specification.   The charge sheet itself gives content
    to that general language, thus providing the required
    notice of what an accused must defend against.”    Jones, 68
    M.J. at 472 (citing Parker v. Levy, 
    417 U.S. 733
    , 756
    (1974)).   Indeed, “[n]o principle of procedural due process
    is more clearly established than . . . notice of the
    specific charge, and a chance to be heard in a trial of the
    issues raised by that charge.”   Cole v. Arkansas, 
    333 U.S. 196
    , 201 (1948); see also Miller, 67 M.J. at 388.
    12
    United States v. Fosler, No. 11-0149/MC
    The three clauses of Article 134 constitute “three
    distinct and separate parts.”   United States v. Frantz,
    
    2 C.M.A. 161
    , 163, 
    7 C.M.R. 37
    , 39 (1953).   Violation of
    one clause does not necessarily lead to a violation of the
    other clauses.   For example, “disorders and neglects to the
    prejudice of good order and discipline” is not synonymous
    with “conduct of a nature to bring discredit upon the armed
    forces,” although some conduct may support conviction under
    both clauses.    This is particularly true of clause 3.   See,
    e.g., United States v. Martinelli, 
    62 M.J. 52
     (C.A.A.F.
    2005) (detailing significant additional steps required to
    obtain a conviction under clause 3, as compared with
    clauses 1 and 2).
    An accused must be given notice as to which clause or
    clauses he must defend against.    As we explained in the
    context of a guilty plea:   “[F]or the purposes of Article
    134, UCMJ, it is important for the accused to know whether
    [the offense in question is] a crime or offense not capital
    under clause 3, a ‘disorder or neglect’ under clause 1,
    conduct proscribed under clause 2, or all three.”   Medina,
    66 M.J. at 26.   This requirement was based on fair notice.
    See id.   Principles of fair notice require the same in
    contested cases.
    13
    United States v. Fosler, No. 11-0149/MC
    Because the terminal element was not expressly
    alleged, our task is to determine whether the terminal
    element was necessarily implied.     See R.C.M. 307(c)(3).   To
    do so, we must interpret the text of the charge and
    specification.   We agree with the court below that
    Resendiz-Ponce does not foreclose the possibility that an
    element could be implied.   See Fosler, 69 M.J. at 675.
    However, in contested cases, when the charge and
    specification are first challenged at trial, we read the
    wording more narrowly and will only adopt interpretations
    that hew closely to the plain text.3    Cf. United States v.
    Watkins, 
    21 M.J. 208
    , 209-10 (C.M.A. 1986).
    The Government argues that the terminal element is
    implied because the specification alleged adultery, the
    word “wrongfully” was used, and the charge stated “Article
    3
    Of course, not all drafting errors call a conviction into
    question. “‘[M]inor and technical deficiencies’” are not
    fatal to the charge and specification, assuming they do not
    prejudice the accused. Russell, 
    369 U.S. at 763
     (quoting
    Smith v. United States, 
    360 U.S. 1
    , 9 (1959)). Appellant’s
    specification also suffers from just such a minor and
    technical deficiency, in that the specification contains an
    incomplete sentence; however, assuming all other
    requirements are met, such mistakes do not render the
    charge and specification deficient:
    Specification: In that [Appellant] . . . did, at or
    near Naval Station, Rota, Spain, on or about 26
    December 2007, by wrongfully having sexual intercourse
    with [SK], a woman not his wife [sic].
    14
    United States v. Fosler, No. 11-0149/MC
    134.”    These facts do not provide a basis, individually or
    together, to find that the charge and specification
    necessarily implied the terminal element.
    An allegation of adulterous conduct cannot imply the
    terminal element.    Article 134, if properly charged, would
    be constitutional as applied to Appellant’s adulterous
    conduct because, as discussed by the Supreme Court in Levy,
    tradition and custom give notice to servicemembers that
    adulterous conduct can give rise to a violation of the
    UCMJ.    See 
    417 U.S. at 746-47
    .   But this only answers the
    question of whether adulterous conduct can constitutionally
    be criminalized under Article 134, not whether the wording
    of the charge and specification satisfies constitutional
    requirements.    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 has
    been satisfied.    See Medina, 66 M.J. at 27.   Because
    adultery, standing alone, does not constitute an offense
    under Article 134, the mere allegation that an accused has
    engaged in adulterous conduct cannot imply the terminal
    element.
    (Emphasis added.)
    15
    United States v. Fosler, No. 11-0149/MC
    Likewise, the word “wrongfully” cannot of itself imply
    the terminal element.   “Wrongfully” is a word of
    criminality and, though our case law has been at times
    unclear, see United States v. Choate, 
    32 M.J. 423
    , 427
    (C.M.A. 1991), words of criminality speak to mens rea and
    the lack of a defense or justification, not to the elements
    of an offense, see United States v. King, 
    34 M.J. 95
    , 97
    (C.M.A. 1992); United States v. Fleig, 
    16 C.M.A. 444
    , 445,
    
    37 C.M.R. 64
    , 65 (1966).   Neither the word “wrongfully” nor
    similar words of criminality can be read to mean or be
    defined as, for example, a “disorder[ or] neglect[] to the
    prejudice of good order and discipline.”   Therefore, while
    potentially necessary -- depending on the nature of the
    alleged conduct -- such words do not imply the terminal
    element in the charge and specification.
    In a contested case in which Appellant challenged the
    charge and specification at trial, the inclusion of
    “Article 134” in the charge does not imply the terminal
    element.   The words “Article 134” do not, by definition,
    mean prejudicial to “good order and discipline,” “of a
    nature to bring discredit upon the armed forces,” or a
    “crime[ or] offense[] not capital,” and we are unable to
    construe the words “Article 134” in the charge we now
    review to embrace the terminal element.    See Resendiz-
    16
    United States v. Fosler, No. 11-0149/MC
    Ponce, 
    549 U.S. 105
    -07 (explaining, in a contested case in
    which the accused moved to dismiss the indictment at trial,
    that an overt act is and has been necessary to and part of
    the definition of an “attempt”); Russell, 
    369 U.S. at
    765-
    66; Hamling, 
    418 U.S. at 117-18
    ; cf. Girouard, 70 M.J. at
    10 (explaining the critical role of the elements of the
    charged offense).
    These components of the charge and specification do
    not imply the terminal element alone or when combined.4
    V.
    The Government also argues that its desired result is
    compelled by the MCM (2008 ed.), pursuant to the
    President’s delegated and Article II powers, and by Parker
    v. Levy.
    Congress delegated to the President certain rulemaking
    authority under Article 36, UCMJ, 
    10 U.S.C. § 836
     (2006),
    but not everything in the MCM represents an exercise of
    that authority, and the President does not have the
    authority to decide questions of substantive criminal law.
    See Jones, 68 M.J. at 472 (citing Ellis v. Jacob, 
    26 M.J. 4
    The deficiency in Appellant’s charge and specification could
    not have been remedied by requesting a bill of particulars under
    R.C.M. 906(b)(6). A bill of particulars cannot cure a charge
    and specification that fail to state an offense. See Russell,
    
    369 U.S. at 770
    ; see also R.C.M. 906(b)(6), Discussion (“A bill
    17
    United States v. Fosler, No. 11-0149/MC
    90, 92 (C.M.A. 1988)).   No article of the UCMJ states that
    the terminal element may be omitted.   Even if the President
    had the authority to do so, he has not set out any Rule for
    Courts-Martial or Military Rule of Evidence directing that
    the terminal element need not be alleged expressly or by
    necessary implication.   Some of the MCM is merely
    explanatory or hortatory.   The sample specifications and
    drafters’ analysis are included among these categories and
    do not purport to be binding.   See MCM pt. I, para. 4,
    Discussion (2008 ed.) (“These supplementary materials do
    not constitute . . . official views of . . . any . . .
    authority of the Government of the United States, and they
    do not constitute rules.”); MCM pt. I, para. 4, Discussion
    (2005 ed.); see also United States v. Mitchell, 
    66 M.J. 176
    , 179 (C.A.A.F. 2008) (“The interpretation of
    substantive offenses in Part IV of the Manual is not
    binding on the judiciary . . . .”).
    Because the only discussion in the MCM stating that
    allegation of the terminal element is not required, MCM pt.
    IV, para. 60.c.(6)(a) (2008 ed.); MCM pt. IV, para.
    60.c.(6)(a) (2005 ed.), is not set forth as language
    intended to be binding, we need not decide whether any such
    of particulars cannot be used to repair a specification which is
    otherwise not legally sufficient.”).
    18
    United States v. Fosler, No. 11-0149/MC
    language constitutes a proper exercise of delegated
    authority under Article 36 or, if not, whether the
    President’s Article II authority would extend to such a
    direction.
    The Government also argues that the silence of the MCM
    should be interpreted to constitute adoption of historical
    practices.    However, there is no clear indication from
    Congress -- expressed in the text of the UCMJ or otherwise
    -- that it intended to do so.   Moreover, such an
    interpretation would require us to consider whether the
    actions of Congress or the President contravene
    constitutional mandates.   In light of the canon of
    constitutional avoidance, we decline to adopt the
    Government’s position.   See Clark v. Martinez, 
    543 U.S. 371
    , 380-81 (2005) (explaining the canon of constitutional
    avoidance).
    One could argue that, because the Supreme Court upheld
    the constitutionality of Article 134 on the basis of the
    unique history of that article in the military, see
    generally Levy, 
    417 U.S. 733
    , we should also consider that
    history when determining whether the terminal element has
    been alleged by necessary implication.    As noted,
    historically, the terminal element did not need to be
    clearly alleged.   And, as discussed, Article 134 was
    19
    United States v. Fosler, No. 11-0149/MC
    traditionally implied as an LIO of any enumerated article
    even though the terminal element was not listed among the
    elements of the charged offense.
    But the Supreme Court’s LIO jurisprudence has changed
    since Levy and so has this Court’s, circumscribing the
    extent to which Article 134 -- and particularly its
    terminal element -- can be implied.    “The rights at issue
    in this case are constitutional in nature,” and the
    government is obligated to allege all the elements of the
    offense.   See Girouard, 70 M.J. at 10.   Moreover, Levy
    focused on the constitutionality of Article 134 itself, not
    the specific procedure of charging an Article 134 offense.
    See 
    417 U.S. at 754
    .    It is also worth noting that, in
    Levy, the terminal element of Article 134 was expressly
    alleged.   See 
    id.
     at 738 n.5.
    The Government must allege every element expressly or
    by necessary implication, including the terminal element.
    The Government did not expressly allege the terminal
    element in this case.   Because Appellant made an R.C.M. 907
    motion at trial, we review the language of the charge and
    specification more narrowly than we might at later stages.
    Cf. Watkins, 21 M.J. at 209-10.    In this context, and in
    light of the changes in Article 134 jurisprudence, we do
    not adopt the Government’s broad reading of the reference
    20
    United States v. Fosler, No. 11-0149/MC
    in the charge to “Article 134.”    Absent the historical
    gloss on the meaning of “Article 134” when that phrase
    exists in the charge, we are compelled to hold that the
    charge and specification do not allege the terminal element
    expressly or by necessary implication.    To the extent that
    prior decisions such as Mayo and Marker hold to the
    contrary, they are overruled.
    Under principles of stare decisis, we examine
    “intervening events, reasonable expectations of
    servicemembers, and the risk of undermining public
    confidence in the law.”   United States v. Boyett, 
    42 M.J. 150
    , 154 (C.A.A.F. 1995).   “But the doctrine does not apply
    when a statute, executive order, or other basis for a
    decision changes.”   
    Id.
     (footnotes omitted); see also
    Agostini v. Felton, 
    521 U.S. 203
    , 235-36 (1997).     Although
    the dissenting opinions argue at length for the application
    of stare decisis, the Supreme Court has explained that
    “stare decisis cannot possibly be controlling when . . .
    the decision in question has been proved manifestly
    erroneous, and its underpinnings eroded, by subsequent
    decisions of [the Supreme] Court.”     United States v.
    Gaudin, 
    515 U.S. 506
    , 521 (1995).
    The jurisprudence of the Supreme Court and our own
    Court has changed.   As discussed, prior to application of
    21
    United States v. Fosler, No. 11-0149/MC
    the elements test in the LIO context, it was largely
    settled that Article 134 could be implied in every other
    offense and was available as an LIO.    This was true even
    though the language of the terminal element was not
    contained within the charged offense.    But the Supreme
    Court clarified the law, requiring the elements test.      See
    Schmuck, 
    489 U.S. at 716-21
    .   After some delay, we applied
    that law to courts-martial, holding that constitutional
    notice requirements no longer permitted such broad
    implication of the terminal element.    See Medina, 66 M.J.
    at 24-25.   The mandates of constitutional notice
    requirements superseded the long-standing practice of
    implying Article 134 in other enumerated offenses, thus
    substantially limiting the extent to which the terminal
    element can permissibly be implied.     Stare decisis does not
    require that we ignore the fact that the basis for the
    historical practice of omitting the terminal element when
    an Article 134 offense is charged has been substantially
    eroded.   See Boyett, 42 M.J. at 154.
    Therefore, because an accused must be notified which
    of the three clauses he must defend against, to survive an
    22
    United States v. Fosler, No. 11-0149/MC
    R.C.M. 907 motion to dismiss, the terminal element must be
    set forth in the charge and specification.5
    VI.
    In this case, at the end of the Government’s case-in-
    chief, defense counsel made a motion to dismiss the
    specification of adultery under Charge II because the
    Government “failed to allege [the terminal element] in the
    charge sheet,” and therefore “it’s a failure to state an
    offense.”   This constitutes a motion to dismiss under
    R.C.M. 907(b)(1)(B), which may be made “at any stage of the
    proceedings.”   The military judge denied this motion.
    Construing the text of the charge and specification
    narrowly, as we must based on the posture of the case, they
    fail to allege the terminal element expressly or by
    necessary implication.   Because allegation of the terminal
    5
    Judge Baker writes that our analysis “may as a practical matter
    have the effect of invalidating the text of R.C.M. 307.” United
    States v. Fosler, __ M.J. __ (5) (C.A.A.F. 2011) (Baker, J.,
    dissenting). We disagree; R.C.M. 307(c)(3) calls for a two-step
    analysis of whether a charge and specification state an offense.
    If the element is not expressly stated or necessarily implied,
    it is absent. As we state, the constitutionality of R.C.M. 307
    has not been called into question by recent case law. When we
    read the charge and specification narrowly, as we must when an
    R.C.M. 907 motion is made before the end of trial, the terminal
    element might be alleged using words with the same meaning. See
    Alston, 69 M.J. at 216. That R.C.M. 307 and the Constitution
    permit, as a general matter, elements to be necessarily implied,
    does not mean that the text of every element is equally
    susceptible to implication consistent with constitutional notice
    requirements.
    23
    United States v. Fosler, No. 11-0149/MC
    element is constitutionally required and the Government
    failed to satisfy that requirement here, the military
    judge’s decision to deny Appellant’s motion to dismiss was
    in error.6   The remedy for this erroneously denied motion to
    dismiss is dismissal.   See United States v. Smith, 
    39 M.J. 448
    , 452-53 (C.M.A. 1994).
    VII.
    Accordingly, the judgment of the United States Navy-
    Marine Corps Court of Criminal Appeals is reversed.   The
    findings of guilty and the sentence are set aside, and the
    charge and its specification are dismissed.
    6
    We do not take issue with the President’s ability to describe
    conduct, such as adultery, which might invoke a violation of
    Article 134. See Jones, 68 M.J. at 472. Nor does our holding
    challenge the validity, vitality, or continued relevance of
    Article 134. Rather, we simply require that its elements be
    charged explicitly or by necessary implication, as the
    Constitution and the R.C.M. require. Nothing in Levy is to the
    contrary.
    24
    United States v. Fosler, No. 11-0149/MC
    EFFRON, Chief Judge (dissenting):
    While serving as a drill instructor at the Naval Junior
    Reserve Officer Training Corps Program in Rota, Spain, Appellant
    engaged in sexual intercourse with a high school student in the
    program.   The ensuing charges included an allegation that
    Appellant, who was married, committed adultery with the student
    -- a sixteen-year-old dependent daughter of an active duty Navy
    servicemember -- in violation of Article 134, Uniform Code of
    Military Justice (UCMJ), 
    10 U.S.C. § 934
     (2006) (proscribing
    “all disorders and neglects to the prejudice of good order and
    discipline in the armed forces, all conduct of a nature to bring
    discredit upon the armed forces, and crimes and offenses not
    capital”).
    The adultery charge employed the sample specification set
    forth in the Manual for Courts-Martial.   The specification used
    the long-standing format for Article 134 offenses, employing
    wording that predates enactment of the UCMJ.
    In this appeal, Appellant challenges the legality of the
    traditional wording of specifications under Article 134.
    Appellant does not challenge the ruling of the military judge
    regarding the legal sufficiency of the prosecution’s evidence on
    each of the elements of the offense; nor does Appellant
    challenge the adequacy of the military judge’s instructions to
    the court-martial panel on the elements of the offense.
    United States v. Fosler, No. 11-0149/MC
    Appellant contends on appeal that the charge should be dismissed
    on the theory that the standard wording for an Article 134
    charge does not constitute an offense under the Uniform Code of
    Military Justice.   The majority opinion agrees with Appellant’s
    contention.
    Article 134 serves as a critical foundation to the
    maintenance of good order and discipline in the armed forces.
    See Parker v. Levy, 
    417 U.S. 733
     (1974).   The majority decision
    calls into question the validity of every court-martial
    conviction that has employed the traditional specification.
    Trial and appellate courts will be required to reexamine Article
    134 charges in pending proceedings; and further litigation is
    likely concerning the impact of the decision on prior
    convictions under Article 134.   For the reasons set forth below,
    I respectfully dissent.
    I.   PRETRIAL AND TRIAL PROCEEDINGS
    The text of the charge and its specification
    The Commanding General, II Marine Expeditionary Force, Camp
    Lejeune, North Carolina, convened a general court-martial to
    consider charges against Appellant, including the following:
    Charge II:   VIOLATION OF THE UCMJ, ARTICLE
    134
    Specification: 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,
    2
    United States v. Fosler, No. 11-0149/MC
    Rota, Spain, on or about 26 December 2007, .
    . . wrongfully hav[e] sexual intercourse
    with [SK], a woman not his wife.
    The legality of the charge
    The convening authority, in making the referral, acted upon
    the advice of his staff judge advocate (SJA).   The SJA advised
    the convening authority that the “specifications under the
    charges allege an offense under the UCMJ.”   See Article 34,
    UCMJ, 
    10 U.S.C. § 834
     (2006) (precluding a convening authority
    from referring a case for trial by general court-martial in the
    absence of such advice).
    The SJA’s advice as to the legality of the charge reflected
    well-established military law.   See, e.g., Manual for Courts-
    Martial, United States pt. IV, para. 62.f (2008 ed.) (MCM (2008
    ed.)) (sample specification); Manual for Courts-Martial, United
    States, app. 6c., para. 127 (1969 rev. ed.) (MCM (1969 rev.
    ed.)) (sample specification in predecessor edition); Manual for
    Courts-Martial, United States, app. 6, para. 119 (1951 ed.)
    (sample specification in the first edition of the Manual issued
    following enactment of the UCMJ); Manual for Courts-Martial,
    U.S. Army, app. 4, para. 117 (1949 ed.) (sample specification in
    the Manual in force for Army proceedings during the period
    immediately preceding enactment of the UCMJ).
    The charge, as drafted, also reflected the traditional
    relationship between the text of the charge and the elements of
    3
    United States v. Fosler, No. 11-0149/MC
    this offense.   The President, in the Manual for Courts-Martial,
    set forth the following guidance concerning the elements of the
    offense at issue in the present appeal:
    (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.
    MCM pt. IV para. 62.b (2008 ed.)       In Rule for Court-Martial
    (R.C.M.) 307(c)(3), which governs the drafting of charges, the
    President emphasized that a “specification is a plain, concise,
    and definite statement of the essential facts constituting the
    offense charged.”   The President further added:     “A
    specification is sufficient if it alleges every element of the
    charged offense expressly or by necessary implication.”      
    Id.
    Consistent with authority to address an element “by
    necessary implication” rather than “expressly,” the President
    has provided the following guidance with respect to the drafting
    of specifications for offenses under Article 134:
    A specification alleging a violation of
    Article 134 need not expressly allege that
    the conduct was “a disorder or neglect,”
    that it was “of a nature to bring discredit
    upon the armed forces,” or that it
    constituted “a crime or offense not
    4
    United States v. Fosler, No. 11-0149/MC
    capital.” The same conduct may constitute a
    disorder or neglect to the prejudice of good
    order and discipline in the armed forces and
    at the same time be of a nature to bring
    discredit on the armed forces.
    MCM pt. IV, para. 60.c.(6)(a) (2008 ed.); accord MCM para. 213a,
    (1969 rev. ed.).    see MCM, Analysis of Punitive Articles app. 23
    at A23-19 (2008 ed.) (citing para. 213 of the 1969 Manual as the
    source for the current provision).
    The drafters’ analysis of the 1969 Manual noted that under
    paragraph 213, the specification “need not expressly allege”
    which clause the conduct violates.     
    Id.
        In support of this
    provision, the drafters’ analysis relied upon United States v.
    Herndon, 
    1 C.M.A. 461
    , 
    4 C.M.R. 53
     (1952) (affirming a
    conviction in which the specification did not refer to any of
    the three clauses within Article 134).       Herndon expressly relied
    upon the language of the sample specification, as set forth in
    the 1951 Manual, and affirmed a finding that employed the
    language of the sample specification -- language similar in
    pertinent respects to the specification at issue in the present
    case.    Herndon, 1 C.M.A. at 463-65, 4 C.M.R. at 55-57.    Herndon
    serves as the controlling precedent in support of the validity
    of the guidance in the Manual.     See, e.g., United States v.
    Mayo, 
    12 M.J. 286
    , 293 (C.M.A. 1982) (citing with approval
    Herndon and para. 213a).
    5
    United States v. Fosler, No. 11-0149/MC
    The observation in Mayo, 12 M.J. at 293 -- that our Court
    “has not held that a specification lodged under Article 134 must
    include an allegation that [the] accused’s conduct was to the
    prejudice of good order and discipline or to the discredit of
    the armed forces” -- underscores that the guidance in the Manual
    is consistent with the judicial interpretation of the UCMJ.     In
    that context, the SJA properly advised the convening authority
    that the charged conduct constituted an offense under the UCMJ.
    Pretrial proceedings
    During the extensive consideration of pretrial motions in
    this case, neither party raised an issue concerning the wording
    of the specification.   The defense did not move to make the
    charges more definite or for a bill of particulars under R.C.M.
    906(a)(6).
    The defense motion at the close of the Government’s case
    During the trial, the prosecution introduced evidence that
    Appellant was an instructor in the Naval Junior Reserve Officer
    Training Corps Program, that he had engaged in sexual activity
    with a high school student in the program, that the student was
    sixteen years old, and that she was the dependent of an active
    duty member of the Navy.   After the Government presented its
    evidence and rested, the defense presented a motion for a
    finding of not guilty under R.C.M. 917, including:
    6
    United States v. Fosler, No. 11-0149/MC
    a motion as to Charge II, under Article 134,
    because the government has failed to show
    that it was prejudicial to good order and
    discipline, or service discrediting, and
    also failed to allege it in the charge
    sheet. Therefore, it’s a failure to state
    an offense. He can’t be found guilty of a
    crime, according to this Specification as
    pled.
    At first, the military judge viewed the defense as offering
    a motion under R.C.M. 917 (requiring the military judge to enter
    a finding of not guilty “if the evidence is insufficient to
    sustain a conviction of the offense affected”).   In the motion
    proceeding, the defense offered no explanation as to why the
    prosecution’s evidence of sexual activity between an instructor
    and a student who also was a military dependent did not meet the
    legal sufficiency standard with respect to proof that
    Appellant’s conduct was either prejudicial to good order and
    discipline or service discrediting under applicable law.     The
    military judge denied the motion, and Appellant has not
    challenged his ruling under R.C.M. 917 in the present appeal.
    The defense then asked the military judge to address the
    defense objection that the specification did not “allege a
    critical element, which is prejudicial to good order and
    discipline, or . . . service discrediting.”   The military judge
    responded by directing defense counsel’s attention to the sample
    specification in the Manual for Courts-Martial.   The following
    dialogue ensued:
    7
    United States v. Fosler, No. 11-0149/MC
    MJ: Can you tell me, in what way the
    Specification that’s currently on the charge
    sheet, in the case at bar, falls short of
    that simple specification, or are you saying
    that the sample specification in the Manual
    for Courts-Martial is, itself, is deficient
    in that it, like many of the 134’s, does not
    explicitly have the terminal element of --
    DC: Yes, ma’am. Our argument is it should
    explicitly say that it’s -- that under the
    circumstances the conduct was prejudicial to
    good order and discipline, or of a nature to
    bring discredit upon the armed forces, so
    that Lance Corporal Fosler would know
    whether that other element, one of the three
    elements is prejudicial to good order and
    discipline or service discrediting.
    MJ: There’s no requirement that the
    government has to either state in the
    Specification which one it is, or state
    either of them in the Specification.
    DC:   Yes, ma’am.
    MJ: The government can prove up either of
    them in this case. And the court finds that
    there is certainly evidence to survive a
    [motion under R.C.M.] 917 on the terminal
    element of conduct prejudicial to good order
    and discipline or service discrediting, to
    survive the [R.C.M.] 917 motion at this
    point.
    DC:   Yes, ma’am.   Thank you.
    The defense offered no legal analysis in support of its
    objection to the wording of the specification as drafted.
    Likewise, the defense did not address this Court’s precedent in
    the Herndon-Mayo line of cases approving the Manual’s sample
    specification, nor did the defense offer any legal authority for
    8
    United States v. Fosler, No. 11-0149/MC
    the proposition that the military judge should reject reliance
    on the sample specification.
    Instructions
    After the parties concluded their presentation of evidence
    on the merits, the military judge instructed the court-martial
    panel on every element of the offense:
    Members, looking next at Charge II and the
    sole Specification thereunder, the accused
    is charged with the offense of adultery. In
    order to find the accused guilty of this
    offense, you must be convinced, by legal and
    competent evidence, beyond a reasonable
    doubt:
    First, that at or near Naval Station Rota,
    Spain, on or about 26 December 2007, the
    accused wrongfully had sexual intercourse
    with [SK].
    Secondly, that at the [time, the] accused
    was married to another; and
    Thirdly, 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.
    The military judge then explained, in detail, the meaning
    of the terms in the third element:
    “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 to lower it in public esteem.
    9
    United States v. Fosler, No. 11-0149/MC
    At that point, the military judge provided further detailed
    instructions on the meaning of the third element in the context
    of an adultery charge:
    Not every act of adultery constitutes an
    offense under the Uniform Code of Military
    Justice. To constitute an offense, the
    government must prove, beyond a reasonable
    doubt, that the accused’s adultery was
    either directly prejudicial to good order
    and discipline, or service discrediting.
    “Conduct prejudicial to good order and
    discipline” includes adultery that has an
    obvious and measurably divisive effect on
    the discipline, morale, or cohesion of a
    military unit or organization, or that has a
    clearly detrimental impact on the authority,
    stature, or esteem of a service member.
    “Service discrediting conduct” includes
    adultery that has a tendency, because of its
    open notorious nature, to bring the service
    into disrepute, to make it subject to public
    ridicule, or to lower it in public esteem.
    Under some circumstances, adultery may not
    be prejudicial to good order and discipline,
    but nevertheless may be service
    discrediting, as I’ve explained those terms
    to you.
    Likewise, depending on the circumstances,
    adultery could be prejudicial to good order
    and discipline, but not be service
    discrediting.
    The military judge then added detailed guidance on the
    application of these instructions to the facts of the case:
    In determining whether the alleged adultery
    in this case is prejudicial to good order
    and discipline, or is of a nature to bring
    discredit upon the armed forces, you should
    10
    United States v. Fosler, No. 11-0149/MC
    consider all the facts and circumstances
    offered on this issue including, but not
    limited to, the accused’s marital status,
    military rank, grade, or position; the
    impact of the adultery on a unit or
    organization of the accused, such as a
    detrimental effect on a unit or
    organization, morale, teamwork and
    efficiency; where the adultery occurred; who
    may have known of the adultery; and the
    nature, if any, of the official and personal
    relationship between the accused and [SK].
    In the present appeal, Appellant has not challenged the
    adequacy of these instructions, nor has Appellant challenged the
    legal sufficiency of the evidence upon which the court-martial
    panel returned a finding of guilty on the charge of adultery.
    II.   APPELLATE CONSIDERATION
    The majority offers a variety of reasons for concluding
    that the traditional specification does not set forth an offense
    under the UCMJ.
    Historical perspective
    The majority opinion speculates that the format of the
    traditional specification reflects prior jurisprudence in which
    Article 134 offenses were treated as included within all of the
    other “enumerated articles” for purposes of treatment as lesser
    included offenses.    According to the majority, “As the charged
    offense was an enumerated article and therefore did not contain
    the terminal element [of Article 134], its explicit allegation
    must have been considered unnecessary.”     __ M.J. __ (5-6)
    11
    United States v. Fosler, No. 11-0149/MC
    (citing United States v. Foster, 
    40 M.J. 140
    , 143 (C.M.A. 1994);
    William Winthrop, Military Law and Precedents 109 (2d ed. Gov’t
    Printing Office 1920) (1895)).   Foster contains no discussion of
    historical basis of the format for Article 134 offenses, and
    nothing in Winthrop suggests that the traditional format was
    developed to address the relationship between greater and lesser
    offenses.   The majority opinion does not identify any historical
    record that would justify the conclusion that the impetus for
    the format of the traditional specification came from a concern
    about the treatment of lesser included offenses.
    Precedent
    The majority opinion does not cite any case in which our
    Court has held that the traditional specification fails to state
    an offense under the UCMJ.   After acknowledging the Herndon line
    of cases upholding the traditional specification, the majority
    opinion contends that the result in the present case is
    compelled by our recent decisions in United States v. McMurrin,
    
    70 M.J. 15
    , 17 (C.A.A.F. 2011); United States v. Girouard, 
    70 M.J. 5
    , 9 (C.A.A.F. 2011); United States v. Jones, 
    68 M.J. 465
    ,
    468 (C.A.A.F. 2010); United States v. Miller, 
    67 M.J. 385
    , 388-
    89 (C.A.A.F. 2009); United States v. Medina, 
    66 M.J. 21
    , 24-25
    (C.A.A.F. 2008).   __ M.J. __ (8-9).   These cases represent the
    latest attempt by our Court to bring some order to consideration
    of lesser included offenses -- a subject that has been the
    12
    United States v. Fosler, No. 11-0149/MC
    subject of considerable instability in military law.    See, e.g.,
    Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex,
    Army Law, Feb. 2011, at 46, 46-48 (describing the frequent
    shifts in judicial doctrine prior to the current set of cases).
    These cases address the role of elements in ascertaining whether
    a purported lesser offense is included within a charged offense
    for purposes of Article 79, UCMJ, 
    10 U.S.C. § 879
     (2006)
    (governing convictions for lesser included offenses).
    The cases relied upon in the majority opinion stand for the
    proposition that a conviction may not be affirmed under Article
    79 if the purported lesser included offense contains an element
    that is not necessarily included within the charged offense.
    These cases underscore the necessity of including all elements
    within the text of a charge; but that is not the primary issue
    in the present case.   R.C.M. 307(c)(3) specifically states that
    “[a] specification is sufficient if it alleges every element of
    the charged offense expressly or by necessary implication.”    If
    the specification before us does not meet that test, it is
    invalid irrespective of our holdings in the Medina-McMurrin line
    of cases.   In that regard, the primary question in the present
    case is whether the specification at issue necessarily included
    all the elements of the charged offense.
    13
    United States v. Fosler, No. 11-0149/MC
    Alternate theories under Article 134
    The majority opinion states that “[a]n accused must be
    given notice as to which clause or clauses [of Article 134] he
    must defend against.”   __ M.J. at __ (13).    The opinion cites no
    case in which we have held that a specification must identify a
    clause or clauses within Article 134 in order to state an
    offense under the UCMJ and survive a motion to dismiss.     The
    opinion relies on our recent decision in Medina, 66 M.J. at 26,
    but that case does not require that a specification identify the
    Article 134 clause under which an individual has been convicted.
    On the contrary, Medina expressly recognizes that an accused
    charged with an offense under Article 134, clause 3 (non-capital
    crimes and offenses) can be convicted of either a clause 1
    offense (conduct prejudicial to good order and discipline) or a
    clause 2 offense (service discrediting conduct) even if neither
    is mentioned in the specification.    See id. at 26-27. Such a
    conviction is valid, under Medina, so long as the military judge
    has addressed the alternate theory through instructions in a
    contested case or through the plea inquiry or a pretrial
    agreement in a guilty plea case.     See id.   In the present case,
    involving a contested trial, the military judge provided
    detailed instructions with respect to both service discrediting
    conduct and conduct prejudicial to good order and discipline.
    14
    United States v. Fosler, No. 11-0149/MC
    To the extent that an accused can demonstrate that
    information beyond the text of the sample specification may be
    necessary in a particular case, the accused may file a motion
    for a more definite specification or a bill of particulars under
    R.C.M. 906(b)(6).   Such a motion, however, does not address the
    separate question of whether a charge must be dismissed for
    failure to state an offense under R.C.M. 907(b)(1)(B), but
    instead involves a determination as to whether relief is
    appropriate under R.C.M. 906(b)(6).   In the present case, the
    defense did not move for a more definite specification or for a
    bill of particulars.
    Words of criminality
    As noted in the majority opinion, this case presents the
    question of whether the specification necessarily implied an
    element of the offense.   __ M.J. at __ (14).   See R.C.M.
    307(c)(3).   In this case, the issue is whether the traditional
    specification necessarily implies that the charged conduct was
    either prejudicial to good order and discipline or service
    discrediting.
    The majority opinion states that “the word ‘wrongfully’ [in
    the specification] cannot of itself imply the terminal element,”
    contending that we are compelled to dismiss the specification
    because “words of criminality speak to mens rea and the lack of
    a defense or justification, not to the elements of an offense.”
    15
    United States v. Fosler, No. 11-0149/MC
    __ M.J. at __ (16).   In support of that proposition, the
    majority opinion cites United States v. King, 
    34 M.J. 95
    , 97
    (C.M.A. 1992), and United States v. Fleig, 
    16 C.M.A. 444
    , 445,
    
    37 C.M.R. 64
    , 65 (1966), but neither King nor Fleig compels the
    result in the present case.   Neither case addressed the
    relationship between an allegation of wrongfulness and the
    terminal element.   Indeed, both cases involved specifications
    that did not contain the terminal element, a circumstance that
    drew no attention from the Court in either case.   In both cases,
    the Court focused on factual deficiencies in the specifications,
    not the terminal element.   As noted by the Court of Criminal
    Appeals in discussing the relationship of King and Fleig to the
    present case:
    [T]he . . . comparison[] to other flawed
    specifications is inapplicable because they
    were all missing allegations of facts
    specific to the individual crimes charged.
    See King, 34 M.J. at 97 (allegation of
    marriage missing in adultery specification);
    . . . Fleig, [16 C.M.A. at 445-46, 37 C.M.R.
    at 64-65] (for a hit-and-run offense, the
    specification was missing fact that the
    vehicle the accused was driving was involved
    in the collision). Such factual charging
    omissions are not analogous to omitting the
    terminal element that is common to all
    Article 134 offenses.
    United States v. Fosler, 
    69 M.J. 669
    , 675 (N-M. Ct. Crim. App.
    2010) (emphasis and citations omitted).
    16
    United States v. Fosler, No. 11-0149/MC
    The Court of Criminal Appeals then addressed the question
    of whether the elements of the offense were necessarily implied
    in the present case.   After carefully discussing our prior cases
    and the specification at issue in this case, the court offered
    the following conclusion:
    [I]f a specification does not contain the
    terminal element specifying that the conduct
    was prejudicial to good order and discipline
    or service discrediting, alleging the
    criminality of the specified conduct by use
    of the words “wrongful” or “unlawful” is
    sufficient.
    In the present case, the specification
    itself properly alleges both criminality and
    the acts that might be determined as
    prejudicial to good order and discipline or
    service discrediting. The specification at
    issue provided notice to LCpl Fosler that
    while he was a married man and on active
    duty at Naval Station, Rota, Spain, he
    wrongfully had sexual intercourse with a
    woman not his wife. The appellant was on
    notice that his conduct while a married
    active duty service member put him at risk
    of criminal liability if the conduct was
    service discrediting or prejudicial to good
    order and discipline.
    . . . [T]he specification here states the
    sexual intercourse was wrongful. Again,
    “wrongful” is employed as a word of
    criminality, and when alleged in concert
    with the specified conduct, it necessarily
    implies the terminal element. This is
    particularly true in the context of
    adultery, where alleging that the conduct
    was wrongful is required because it would
    normally not be a crime in civilian
    jurisdictions. . . . [T]he wrongfulness of
    the appellant’s conduct in the military
    context is what implies prejudice to good
    17
    United States v. Fosler, No. 11-0149/MC
    order and discipline, service discredit, or
    both.
    
    Id. at 676-77
     (emphasis and footnote omitted).     I agree.    Our
    precedent supports use of the traditional specification, and
    nothing in our case law compels a contrary result.
    III.   ADHERENCE TO PRECEDENT
    The present case does not require us to decide whether any
    of the guidance in Part IV of the Manual establishes a binding
    requirement.   Here, we are dealing with well-established
    judicial precedent that predates enactment of the UCMJ.       In that
    regard, the President’s guidance both reflects the state of the
    law, and informs the application of the rule set forth in R.C.M.
    307(c)(3) regarding the treatment of elements in the drafting of
    specifications.
    If this were a case of first impression, the approach
    suggested in the majority opinion might well provide an
    appropriate ground for a decision.    We are not dealing with a
    fresh case, however, but instead have a case involving long-
    standing precedent under military law.
    The Supreme Court has emphasized that adherence to
    precedent in judicial decisions -- the doctrine of stare decisis
    -- provides “the preferred course because it promotes the
    evenhanded, predictable, and consistent development of legal
    principles, fosters reliance on judicial decisions, and
    18
    United States v. Fosler, No. 11-0149/MC
    contributes to the actual and perceived integrity of the
    judicial process.”   Payne v. Tennessee, 
    501 U.S. 808
    , 827
    (1991).   Relying on our precedent, the President has promulgated
    guidance that has governed the charging of offenses under
    Article 134 throughout the history of the UCMJ.   Notwithstanding
    that reliance, the majority opinion holds that a charge that
    employs the traditional specification does not set forth an
    offense under the UCMJ.   Given the significant reliance on
    Article 134 charges in maintaining good order and discipline in
    the armed forces, the majority opinion is likely to lead to
    extensive litigation about the impact of the decision on pending
    courts-martial and appellate proceedings; and the decision may
    well result in collateral challenges to prior convictions that
    relied upon the traditional specification.
    In considering the application of precedent, we have
    observed that “[s]tare decisis is a principle of decision
    making, not a rule, and need not be applied when the precedent
    at issue is ‘unworkable or . . . badly reasoned.’”   United
    States v. Tualla, 
    52 M.J. 228
    , 231 (C.A.A.F. 2000) (omission in
    original) (quoting Payne, 
    501 U.S. at 827
    ).   In terms of
    workability, overturning this precedent will lead us into
    uncharted territory, with numerous challenges to past and
    present cases involving convictions under Article 134.   By
    contrast, the procedure approved in the Herndon line of cases --
    19
    United States v. Fosler, No. 11-0149/MC
    a procedure that provided Appellant with the same notice and
    opportunity to respond as has been provided traditionally to
    servicemembers charged with Article 134 offenses -- is neither
    unworkable nor badly reasoned.   Under these circumstances, I
    would adhere to precedent and affirm the decision of the Court
    of Criminal Appeals.
    20
    United States v. Fosler, No. 11-0149/MC
    BAKER, Judge (dissenting):
    I respectfully dissent for three reasons.     First, as
    discussed in Part I, this case presents a straightforward
    application of Rule for Courts-Martial (R.C.M.) 307.     The text
    of the specification, which referenced wrongful adulterous
    conduct on a date certain with a person certain, necessarily
    implied the terminal element of Article 134, Uniform Code of
    Military Justice (UCMJ), 
    10 U.S.C. § 934
     (2006).     The Manual for
    Courts-Martial, United States (2008 ed.) (MCM) expressly states
    so.   Military practice consistently provides so.    And, this
    Court’s case law has always concluded so.
    Second, as discussed in Part II, the majority’s opinion
    reaches beyond the needs of this case, and appears to put in
    question, if not invalidate, all Article 134, UCMJ, convictions
    past and present, that did not or do not include the terminal
    element in the specification.   While pleading the terminal
    element might be good practice, it is not required.     Such a sea
    change runs counter to the plain language of R.C.M. 307, long-
    standing practice, and principles of stare decisis that are
    particularly apt in the Article 134, UCMJ, context.     One is left
    to ask:   If the specification in Appellant’s case does not
    implicitly include the terminal element, when would a
    specification include the terminal element by implication?
    United States v. Fosler, No. 11-0149/MC
    Third, as considered in Part II, the majority opinion
    raises more questions than it answers.    A number of critical
    systemic legal policy questions remain open.   What status, if
    any, does the Manual play in the context of Article 134, UCMJ?
    What role does the Commander in Chief play, if any, in defining
    the Rules for Courts-Martial (R.C.M.) and the elements of
    Article 134, UCMJ?   Finally, has Article 134, UCMJ, lost its
    essential character as a predictable, and therefore fair and
    useful, element of military discipline?
    I.
    The legal question presented in this case is
    straightforward:   Does the specification allege every element of
    the charged offense expressly or by necessary implication?     In
    my view, the answer is yes.   The specification at issue states:
    Specification: In that Lance Corporal James N. Fosler
    . . . a married man, did, at or near Naval Station,
    Rota, Spain, on or about 26 December 2007, . . .
    wrongfully hav[e] sexual intercourse with [SK], a
    woman not his wife.
    To start with the obvious, the specification does not expressly
    allege either of the terminal elements for an offense under
    clauses 1 or 2 of Article 134, UCMJ.   Thus, the question is
    whether the elements of service discrediting conduct or conduct
    prejudicing good order and discipline are alleged by necessary
    2
    United States v. Fosler, No. 11-0149/MC
    implication, as permitted by the text of R.C.M. 307.1   The answer
    is yes.
    First, the charge alleges that Appellant violated Article
    134, UCMJ.   That necessarily implies that Appellant violated
    either clause 1, clause 2, clause 3, or some combination of the
    three clauses.
    Second, the specification expressly states that Appellant
    violated Article 134, UCMJ, on a date certain, “on or about 26
    December 2007,” by “having sexual intercourse with [SK], a woman
    not his wife.”   Thus, the specification expressly states that
    Appellant committed adultery.
    Third, the specification expressly states that Appellant
    engaged in this conduct “wrongfully.”   Thus, his conduct was not
    mere adultery, but wrongful adultery in the context of the
    military.    As the majority itself acknowledges “wrongful” is a
    word of criminality.   Thus, the specification charges appellant
    with criminal adultery in the military and not mere adultery.
    Fourth, for adultery to be criminal, “the adulterous
    conduct must either be directly prejudicial to good order and
    discipline or service discrediting.”    MCM, pt. IV, para. 62.c.
    That is the only manner in which adultery can be criminal under
    the article.   Moreover, the specification in Appellant’s case is
    1
    “A specification is sufficient if it alleges every element of
    the charged offense expressly or by necessary implication.”
    R.C.M. 307(c)(3).
    3
    United States v. Fosler, No. 11-0149/MC
    based on the sample specification provided in the Manual.2      Thus,
    a specification alleging wrongful adulterous conduct under
    Article 134, UCMJ, necessarily implies that the conduct is
    service discrediting or prejudicial to good order and
    discipline.    That is the basis on which the President has
    authorized its prosecution.
    Finally, because the specification provides the specific
    date of the conduct concerned, as well as the name of the other
    party, Appellant was on notice as to what alleged facts in
    support of these elements he would be required to meet.       As a
    result, the specification satisfied Appellant’s right “to be
    informed of the nature and cause of the accusation.”    U.S.
    Const. amend. VI.
    Nonetheless, the majority concludes that an allegation of
    wrongful adulterous conduct on a date certain charged under
    Article 134, UCMJ, does not imply that conduct is either service
    discrediting or prejudicial to good order and discipline.      This
    conclusion celebrates form over substance; as surely the
    2
    The Manual provides the following sample specification:
    In that [fill in] (personal jurisdiction data), (a married
    man/a married woman), did, (at/on board -- location)
    (subject-matter jurisdiction data, if required), on or
    about [fill in date or range of dates], wrongfully have
    sexual intercourse with [fill in name of other party], a
    (married) (woman/man) not (his wife) (her husband).
    MCM pt. IV, para. 62.f.
    4
    United States v. Fosler, No. 11-0149/MC
    constitutional principle at stake is satisfied as is the purpose
    behind R.C.M. 307:    fair notice to the defendant as to what he
    will have to defend against.
    What is more, and more important from a systemic
    standpoint, the majority “call[s] into question the practice of
    omitting the terminal element from the charge and specification”
    in the context of Article 134, UCMJ, offenses generally.
    Fosler, __ M.J. at __ (9).    Posing the question, in turn places
    in doubt the text of R.C.M. 307, which plainly permits
    specifications to reference elements by necessary implication.
    Thus, at the very least, as the Chief Judge notes:
    Given the significant reliance on Article 134 charges
    in maintaining good order and discipline in the armed
    forces, the majority opinion is likely to lead to
    extensive litigation about the impact of the decision
    on pending courts-martial and appellate proceedings;
    and the decision may result in collateral challenges
    to prior convictions that relied upon the traditional
    specification.
    Fosler, __ M.J. at __ (19) (Effron, C.J., dissenting).     Whether
    done expressly, or by implication, the new court-made standard
    may as a practical matter have the effect of invalidating the
    text of R.C.M. 307.   If the terminal element is not implied in
    Appellant’s case, it is not clear under what conditions the
    terminal element might ever be implied in the context of an
    Article 134, UCMJ, offense.
    5
    United States v. Fosler, No. 11-0149/MC
    II.
    There are several additional flaws in the analysis that
    warrant discussion.   First, the majority’s analysis relies on a
    string of cases from the past two years that are not on point,
    United States v. McMurrin, 
    70 M.J. 15
    , 17 (C.A.A.F. 2011);
    United States v. Girouard, 
    70 M.J. 5
    , 9 (C.A.A.F. 2011); United
    States v. Jones, 
    68 M.J. 465
    , 468 (C.A.A.F. 2010); United States
    v. Miller, 
    67 M.J. 385
    , 388-89 (C.A.A.F. 2009); and United
    States v. Medina, 
    66 M.J. 21
    , 24-25 (C.A.A.F. 2008).    These
    cases address Article 134, UCMJ, but they do not address R.C.M.
    307 or fair notice of the terminal element for offenses charged
    under Article 134, UCMJ.   The first four cases address lesser
    included offenses.    The latter case is about the right of
    defendants to know what offense they are pleading to at the time
    they plead, thus barring an appellate court from affirming a
    plea to a distinct offense after the fact and while a case is on
    appeal.   Nor do the heightened notice standards applicable to
    guilty pleas or lesser included offense instructions address the
    same constitutional concerns as the notice pleading standard
    applicable to specifications -- until now.   The majority
    compares apples to oranges.   There are no double jeopardy
    concerns, for example, created by implying the terminal element
    of Article 134, UCMJ, that would necessitate the same notice
    standard as the guilty plea and lesser included offense cases.
    6
    United States v. Fosler, No. 11-0149/MC
    In short, these cases do not address whether a specification
    under Article 134, UCMJ, is or is not constitutionally
    sufficient to state an offense.
    Second, the majority’s analysis ignores long-standing
    military practice as well as the principles embedded in the
    doctrine of stare decisis, which are particularly relevant in
    light of this continuous military practice.    Indeed, as the
    Chief Judge documents, the majority whistles past sixty years of
    precedent and many more of continuous and consistent practice by
    calling it “historical.”    Fosler, __ M.J. __ at __ (22).
    However, we should be clear.   What the majority dubs
    “historical” is the current, consistent, and continuous everyday
    practice in the military.   It is consistent with the Manual.      It
    is consistent with this Court’s precedent.    And, it is reflected
    in the forty-five trailer cases currently pending resolution of
    this case.   The number is growing.   In such a context, the
    principle of stare decisis would seem particularly suited.
    As the Court has stated, the doctrine of stare decisis is
    “the preferred course because it promotes the evenhanded,
    predictable, and consistent development of legal principles,
    fosters reliance on judicial decisions, and contributes to the
    actual and perceived integrity of the judicial process.”     United
    States v. Rorie, 
    58 M.J. 399
    , 406 (C.A.A.F. 2003) (quoting Payne
    v. Tennessee, 
    501 U.S. 808
    , 827, (1991)).     Stare decisis is a
    7
    United States v. Fosler, No. 11-0149/MC
    principle of decision making and need not be applied when the
    precedent at issue is unworkable or badly reasoned.      United
    States v. Tualla, 
    52 M.J. 228
    , 231 (C.A.A.F. 2000).       “As a
    general matter, however, adhering to precedent is usually the
    wise policy, because in most matters it is more important that
    the applicable rule of law be settled than it be settled right.”
    
    Id.
     (citation and quotation marks omitted).       In this case, the
    law is both settled and settled correctly.
    During its first term, this Court was presented the
    question before the Court today:       was it necessary to plead the
    so-called terminal element of then Article 96 of the Articles of
    War.   In United States v. Marker, 
    1 C.M.A. 393
    , 
    3 C.M.R. 127
    (1951), the accused, a civilian, stood convicted of three
    specifications alleging wrongful acceptance of unlawful gifts of
    clothing, payments, and a house from a tire company in Japan.
    Upholding the convictions, this Court held:
    [W]e find no reason for the inclusion in the specifications
    of the words “conduct of a nature to bring discredit upon
    the military service.” In truth, we believe the suggested
    language to be nothing more than traditionally permissible
    surplusage in specifications laid under Article of War 96,
    supra. Its use therein can add nothing of legal effect to
    an allegation of conduct not of such a discrediting nature
    -- and its omission detracts not at all from conduct which
    clearly is.3
    3
    It should be noted that the term “surplusage” appears to refer
    to the necessity for including the language in the specification
    and was not intended to suggest that the language in the statute
    itself was unnecessary.
    8
    United States v. Fosler, No. 11-0149/MC
    Marker, 1 C.M.A. at 400, 3 C.M.R. at 134.    The Court’s reasoning
    rested on the principle set forth in Hagner v. United States,
    
    285 U.S. 427
    , 431 (1932).   It retains its vitality today.
    The true test of the sufficiency of an indictment is not
    whether it could have been more definite or certain, but
    whether it contains the elements of the offenses intended
    to be charged. If the indictment informs the accused of
    what he must be prepared to meet, and is sufficiently
    definite to eliminate the danger of future jeopardy, it
    will be held sufficient.
    Marker, 1 C.M.A at 400, 3 C.M.R. at 134.    This Court concluded
    that the specifications at issue in Marker met these criteria.4
    Two months later in United States v. Herndon, 
    1 C.M.A. 461
    , 
    4 C.M.R. 53
     (1952), the Court considered whether or not a
    specification alleging receipt of stolen property under Article
    134, UCMJ, stated an offense.   Importantly, the specification
    failed to allege the terminal element.    Although the issue
    presented for review was slightly different, the Court cited
    Marker in holding that “the specification . . . herein is not
    fatally defective, but instead alleges properly an offense under
    Article 134.”    Herndon, 1 C.M.A. at 465, 4 C.M.R. at 57.
    This practice continued apace until the issue returned on
    appeal thirty years later in United States v. Mayo, 
    12 M.J. 286
    (C.M.A. 1982).   There, the appellant was convicted under Article
    4
    While true, the Court in Marker was analyzing Article of War
    96, it is beyond dispute that the language of that article
    ultimately became the very language of Article 134, UCMJ.
    9
    United States v. Fosler, No. 11-0149/MC
    134, UCMJ, for communicating a bomb hoax.   Mayo contended that
    the specification was insufficient under Article 134, UCMJ,
    because it did not allege that the accused’s conduct was to the
    prejudice of good order and discipline.   
    Id. at 293
    .    Citing
    Marker and Herndon, this Court summarily disposed of Mayo’s
    contention stating, “Short forms of Article 134 specifications
    do not require an allegation as to the character of the
    accused’s conduct.”   
    Id.
    Today, thirty years since Mayo, the Court jettisons this
    precedent.   However, there is nothing in the record that
    indicates long-standing practice and law in this area is
    unworkable, badly reasoned, or unfair.    In point of fact, the
    enduring nature of these precedents, which have gone
    unchallenged, suggests that this customary practice has and
    continues to be quite workable.    This Court’s recent reversal of
    long-standing precedent in the area of Article 134, UCMJ, lesser
    included offenses does not demonstrate otherwise.   Those cases
    addressed the issue of whether the terminal element in Article
    134, UCMJ, could be implied in specifications alleging
    violations of the enumerated offenses.    The issue here is
    distinct; can the terminal element of Article 134, UCMJ, be
    implied in the context of a specification alleging an Article
    134, UCMJ, offense, where the President has provided in the
    10
    United States v. Fosler, No. 11-0149/MC
    Manual that the alleged misconduct can only be charged under
    Article 134, UCMJ.
    The majority’s holding also contradicts long-standing
    precedent concerning the sufficiency of a specification
    generally.   In United States v. Sell, 
    3 C.M.A. 202
    , 
    11 C.M.R. 202
     (1953), notwithstanding its citation to the Hagner language
    in earlier cases, the Court nonetheless felt there was still
    uncertainty in the military justice system as to the test to be
    applied.   3 C.M.A. at 206, 11 C.M.R. at 206.   The Court took the
    language in Hagner, expanded upon it and announced the
    following:
    The true test of the sufficiency of an indictment is not
    whether it could have been made more definite and certain,
    but whether it contains the elements of the offense
    intended to be charged, and sufficiently apprises the
    defendant of what he must be prepared to meet; and, in case
    any other proceedings are taken against him for a similar
    offense, whether the record shows with accuracy to what
    extent he may plead a former acquittal or conviction.
    Id.   In United States v. Fout, 
    3 C.M.A. 565
    , 568, 
    13 C.M.R. 121
    ,
    124 (1953) (overruled on other grounds by United States v.
    Watkins, 
    21 M.J. 208
     (1986)), the Court refined this standard
    stating, “Every essential element of the offense sought to be
    charged must be alleged directly or by clear implication in the
    specification.”   These cases are the bedrock upon which military
    practice and R.C.M. 307(c)(3) rest.   “A specification is
    11
    United States v. Fosler, No. 11-0149/MC
    sufficient if it alleges every element of the charged offense
    expressly or by necessary implication.”
    The majority’s conclusion also runs counter to case law
    regarding words of criminality in determining the sufficiency of
    a specification.   A specification is sufficient to allege an
    offense if “it contains the elements of the offense intended to
    be charged, including words importing criminality or an
    allegation as to intent or state of mind where this is
    necessary.”   United States v. Tindoll, 
    16 C.M.A. 194
    , 195, 
    36 C.M.R. 350
    , 351 (1966).   “[A]lthough addition of words of
    criminality . . . cannot make criminal acts which obviously are
    not, . . . [the] allegation serves to demonstrate the proscribed
    character of accused’s act.”5   United States v. Sadinsky, 
    14 C.M.A. 563
    , 565, 34 C.M.R 343, 345 (1964).   In Sadinsky, the
    accused was convicted of “wrongfully and unlawfully” jumping
    5
    The majority’s citation of United States v. King, 
    34 M.J. 95
    ,
    97 (C.M.A. 1992), and United States v. Fleig, 
    16 C.M.A. 444
    ,
    445, 
    37 C.M.R. 64
    , 65 (1966), for the proposition that words of
    criminality do not speak to the elements of the offense is
    somewhat dubious. Fosler, __ M.J. __ at __ (16). The adultery
    specification in King did not allege the language of the
    terminal element, but that was not the basis for the Court’s
    conclusion that it failed to state an offense. The problem
    there was that although wrongfulness was alleged, the
    specification failed to allege that the accused or the other
    person was married -- an essential element of adultery and the
    essence of the offense itself. Likewise, in Fleig, a
    specification purporting to charge the accused with fleeing the
    scene of a accident failed to state that the accused’s vehicle
    had been in the accident. In both cases, words of criminality
    alone could not make criminal acts which obviously were not.
    12
    United States v. Fosler, No. 11-0149/MC
    from his ship while it was underway.   14 C.M.A. at 564, 34
    C.M.R. at 343.   The Court noted that “the pleading makes clear
    that accused did not, under unusual circumstances, jump
    overboard in the course of his legitimate duties as, possibly,
    to rescue a shipmate, or for some other purpose which might be
    completely innocent.”   14 C.M.A. at 465, 34 C.M.R. at 345.   The
    Court stated that the critical inquiry for this clause 1 offense
    was “whether the act was palpably and directly prejudicial to
    the good order and discipline of the service” and that “such an
    allegation need not be made in a specification laid under the
    General Article.”   14 C.M.A. at 566, 34 C.M.R. at 346.
    Here, the specification was pleaded under Article 134,
    UCMJ, and alleged that a married man wrongfully engaged in
    sexual intercourse with a woman not his wife.   This Court has
    long accepted the traditional meaning of the term wrongful:
    That the word [wrongful] has a well-defined meaning when
    used in criminal statutes is supported by Webster, who
    defines it as doing a thing “in a wrong manner; unjustly;
    in a manner contrary to moral lay [sic] or justice.” The
    word “wrongful” . . . when used in criminal statutes,
    implies a perverted evil mind in the doer of the act. The
    word “wrongful” implies the opposite of right.
    United States v. West, 
    15 C.M.A. 3
    , 7, 
    34 C.M.R. 449
    , 453
    (C.M.A. 1964); see United States v. Barner, 
    56 M.J. 131
    , 136
    (C.A.A.F. 2001) (a wrongful act is “one done without legal
    justification or with some sinister purpose”); accord United
    States v. Reeves, 
    61 M.J. 108
    , 111 (C.A.A.F. 2005).
    13
    United States v. Fosler, No. 11-0149/MC
    Outside the military context, words of criminality alone
    might not provide such notice.   In the military, however, not
    all adultery is or should be criminalized.   The Manual for
    Courts-Martial contains a relatively lengthy list of factors to
    be considered in determining when such conduct is prejudicial to
    good order and discipline or service discrediting.   MCM pt. IV,
    para. 62.c.2.   In the military, the offense of adultery can only
    be prosecuted if it offends good order and discipline or is
    service discrediting.   Thus, this specification was more than
    sufficient to meet the constitutional requirement.
    And what of other offenses traditionally charged under
    Article 134, UCMJ?   For instance, in the absence of language
    setting forth the terminal element of Article 134, UCMJ, can one
    charged with willfully and wrongfully seizing a person and
    holding him against his will reasonably assert that he is not on
    notice that the prosecution intends to proceed against him for
    kidnapping?   See MCM pt. IV, para. 92.   Furthermore, could one
    credibly claim, in the case of kidnapping, that he is not
    sufficiently apprised that such conduct is prejudicial to good
    order or service discrediting?
    Finally, the majority appears to conflate the requirement
    that a specification state an offense with an accused’s right to
    more specificity in the allegation.   The majority takes the
    position that the specification was constitutionally deficient
    14
    United States v. Fosler, No. 11-0149/MC
    because it failed to inform the accused as to which theory of
    liability contained in the terminal element the Government
    intended to pursue.   An accused does have a right to know under
    what statutory theory the government is proceeding against him
    in those instances where the statute provides alternative ways
    it can be violated.   However, there is no constitutional
    requirement that the specification set forth such theories as
    long as the specification otherwise meets the test for
    sufficiency.   Here, as recounted in Part I, the specification
    clearly indicated that the Government was proceeding on a theory
    that Appellant’s conduct was service discrediting and/or
    undermined good order and discipline.   The law is “not whether
    it could have been made more definite and certain, but whether
    it contains the elements of the offense intended to be charged.”
    Hagner, 
    285 U.S. at 431
    .   If there are several means of
    committing the offense contained in the statute, the accused has
    a right to have the specification made more definite.    State v.
    Campbell, 06-0286, pp. 93-94 (La. 05/21/08); 
    983 So. 2d 810
    , 870
    (in murder case “a defendant may procure details as to the
    statutory method by which he committed the offense through a
    bill of particulars”); People v. Ingersoll, 
    506 P.2d 364
    , 365
    (Colo. 1973) (in felony theft case, where offense charged may be
    committed in alternative ways, defendant may require prosecution
    to state particular manner in which he committed offense by
    15
    United States v. Fosler, No. 11-0149/MC
    filing motion for bill of particulars); accord State v. Carbone,
    
    374 A.2d 215
    , 224 (Conn. 1977).    Like other jurisdictions, the
    military justice system provides a remedy if the accused
    requires more specificity in the allegation, assuming, as in
    this case, the specification is sufficient to allege an offense.
    R.C.M. 906(b)(6) allows an accused to move for appropriate
    relief in the form of a bill of particulars.   The purpose of a
    bill of particulars is:
    to inform the accused of the nature of the charge with
    sufficient precision to enable the accused to prepare for
    trial, to avoid or minimize the danger of surprise at the
    time of trial, and to enable the accused to plead the
    acquittal or conviction in bar of another prosecution for
    the same offense when the specification itself is too vague
    and indefinite for such purposes.
    United States v. Williams, 
    40 M.J. 379
    , 381 n.2 (C.M.A. 1994);
    United States v. Mobley, 
    31 M.J. 273
    , 278 (C.M.A. 1990); R.C.M.
    906(b)(6) Discussion.    “The purpose of a bill of particulars is
    to narrow the scope of the pleadings.”    United States v. Paulk,
    
    13 C.M.A. 456
    , 458, 
    32 C.M.R. 456
    , 458 (1963).   Moreover, if a
    specification, although stating an offense, is still so
    defective that the accused appears to have been misled, he may
    request a continuance.    R.C.M. 906(b)(4) Discussion.   In this
    case when defense counsel moved to dismiss at the end of the
    Government’s case, he did not complain that the defense had been
    16
    United States v. Fosler, No. 11-0149/MC
    misled because of the absence of language alleging the conduct
    was prejudicial to good order or service discrediting.6
    II.
    There are a number of legal policy and systemic questions
    raised by the majority opinion that are left unanswered.    An
    opinion is not required to address all questions in all contexts
    that might be raised; however, where as here, the opinion
    represents a sea change in practice and law depending on how it
    is applied, additional guidance is warranted.   A number of
    questions arise.
    6
    The offense of larceny under Article 121, UCMJ, is a classic
    example of how the aforementioned long-standing principles play
    out. Contained in the statutory text of Article 121, UCMJ, are
    three alternative methods of committing the offense -- a
    wrongful taking, obtaining or withholding. The statute also
    requires that the offender harbor the specific intent to
    permanently deprive or defraud. Yet, since (and even before)
    the inception of the UCMJ, it has been permissible to simply
    allege in the specification that the accused “did steal.”
    Presumably, if the accused desires specificity from the
    prosecution as to which “theory” of larceny is being pursued
    against him, he may move for a bill of particulars. Neither
    this Court nor any other jurisdiction where a larceny statute is
    derived from the common law has ever required otherwise.
    Apparently, the words of criminality, namely, “did steal” are
    sufficient to not only imply the essential element of specific
    intent, but also to encompass any (or all) of the three
    alternative means of committing the offense of larceny. Given
    this, it seems incongruous that this Court should hold that a
    specification alleging wrongful adultery pleaded under Article
    134, UCMJ, is constitutionally deficient to provide notice to an
    accused of the criminal character of his conduct. Here,
    Appellant could have simply moved to require the Government to
    specify which alternative method under Article 134, UCMJ, was
    being pursued.
    17
    United States v. Fosler, No. 11-0149/MC
    First, how does Fosler apply to past and present cases?
    Although the majority reverses appellant’s conviction based on
    textual analysis of the particular specification, the opinion
    appears to implicate and question all Article 134, UCMJ, cases
    in which the terminal element has not been specified.     If so, it
    has done so without indication as to how this new rule will or
    should apply to past cases or to cases pending in the military
    justice system.   If a specification fails to state an offense,
    for example, can an accused ever be convicted of that
    specification, whether or not he objects to the specification?
    Can an accused plead guilty to a specification that does not
    state an offense?   If so, how?   Similarly, in the context of a
    contested case, can an accused waive the right to be tried on a
    specification that does not state an offense?     If so, can one
    knowingly waive that right if counsel and accused were not aware
    at the time that the specification did not state an offense?
    And, of course, how does the writ of coram nobis apply to past
    cases?    See United States v. Denedo, 
    129 S. Ct. 2213
     (2009).
    Second, what standing does the Manual now possess in the
    context of Article 134, UCMJ?     Is it law?   Does it bind military
    judges?   If the Manual did not place Appellant on notice that he
    would have to defend against a charge of criminal adultery that
    was service discrediting or prejudicial to good order and
    discipline, then one must ask what role or standing does the
    18
    United States v. Fosler, No. 11-0149/MC
    Manual retain going forward?    The question is raised because as
    recounted in Part I, and in the Chief Judge’s dissent, the
    Manual states that “the adulterous conduct must either be
    directly prejudicial to good order and discipline or service
    discrediting.”    MCM, pt. IV, para. 62.c.2.   Moreover,
    Appellant’s specification is based on the sample in the Manual.
    The question is procedural as well.   Rule for Courts-
    Martial 307, which is at minimum an exercise in delegated
    presidential authority pursuant to Article 36, UCMJ,7 permits
    elements to be charged by necessary implication.      However, there
    is no guidance from the majority as to how R.C.M. 307 applies to
    Article 134, UCMJ, offenses if it does not apply in this case.
    This Court has long stated that the Manual is persuasive
    authority, but in recent Article 134, UCMJ, cases this Court has
    not been persuaded.    It would seem that if the Commander in
    Chief’s constitutional authority were relevant in military
    justice practice, it would be most relevant with respect to
    7
    The text of Article 36(a), UCMJ, is as follows:
    Pretrial, trial, and post-trial procedures, including modes
    of proof, for cases arising under this chapter triable in
    courts-martial, military commissions and other military
    tribunals, and procedures for courts of inquiry, may be
    prescribed by the President by regulations which shall, so
    far as he considers practicable, apply the principles of
    law and the rules of evidence generally recognized in the
    trial of criminal cases in the United States district
    courts, but which may not be contrary to or inconsistent
    with this chapter.
    19
    United States v. Fosler, No. 11-0149/MC
    Articles 92 and 134, UCMJ, which arguably are most directly
    related to regulating discipline in the armed forces and not
    just to providing a system of justice for the armed forces.
    Without reference to the Manual it is not clear how the
    President as Commander in Chief might exercise whatever
    authority he might inherently hold as Commander in Chief in
    defining the procedure and substance of military justice.       And,
    without reference to the Manual, it is not clear how members of
    the military will be put on notice as to what conduct might
    violate Article 134, UCMJ.    Certainly, the statutory elements
    alone do not provide such notice.      But if the Manual is
    unpersuasive here and unpredictable in application, how then is
    fair notice provided?
    One suspects that the issue is not one of fair notice in
    this case or with R.C.M. 307, but with Article 134, UCMJ,
    itself.   Has Article 134, UCMJ, lost its capacity to serve as a
    predictable, and thus fair and reliable tool to uphold good
    order and discipline?    Jones, 68 M.J. at 474 (Baker, J.,
    dissenting).   Is Parker v. Levy, 
    417 U.S. 733
     (1974), still good
    law?
    “[T]he military is, by necessity, a specialized society
    separate from civilian society.”       
    Id. at 743
    .   And it has, by
    necessity, “developed laws and traditions of its own during its
    long history.”   
    Id.
        Because of the special distinctions
    20
    United States v. Fosler, No. 11-0149/MC
    separating it from the civilian society, “the military has
    developed what ‘may not unfitly be called the customary military
    law’ or ‘general usage of the military service.’”   
    Id. at 744
    (quoting Martin v. Mott, 
    12 Wheat. 19
    , 35, (1827)).    The UCMJ
    “cannot be equated to a civilian criminal code,” id. at 749, and
    with respect to Article 134, UCMJ, specifically, it “must be
    judged ‘not in vacuo, but in the context in which the years have
    placed it.’”   Id. at 752 (quoting United States v. Frantz, 
    2 C.M.A. 161
    , 163, 
    7 C.M.R. 37
    , 39 (1953)).   Do these observations
    retain the same force and effect today as they did at the time
    they were made?    Is service custom and practice relevant to
    Article 134, UCMJ?
    These questions all now appear in play.    In such a context,
    one might ask if the interests of justice, due process, and the
    significant interest in discipline in the military warrant a
    more holistic executive and legislative review of Article 134,
    UCMJ, rather than the unpredictable piecemeal adjudication of
    discrete issues.
    21