United States v. Henderson

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS UNITED STATES v. Frank G. HENDERSON Lieutenant (O-3), U.S. Coast Guard CGCMG 0329 Docket No. 1426 January 2017 General Court-Martial convened by Coast Guard Director of Operational Logistics. Tried at Norfolk, Virginia, on 14-15 January and 11 February 2015.

Military Judge: CAPT Gary E. Felicetti, USCG Trial Counsel: LT Amy K. Sung, USCGR Assistant Trial Counsel: CDR Michael R. Sinclair, USCG Defense Counsel: LT Jason W. Roberts, USCGR Assistant Defense Counsel: CAPT Paul C. LeBlanc, JAGC, USN Appellate Defense Counsel: LT Philip A. Jones, USCGR Appellate Government Counsel: LT Tereza Z. Ohley, USCGR

BEFORE MCCLELLAND, SPOLIDORO & JUDGE Appellate Military Judges

Per curiam: Appellant was tried by general court-martial, military judge alone. Pursuant to his pleas, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of failure to obey a lawful general order, in violation of Article 92, Uniform Code of Military Justice (UCMJ); one specification of false official statements, in violation of Article 107, UCMJ; one specification of assault and battery, in violation of Article 128, UCMJ; one specification of adultery, in violation of Article 134, UCMJ; and one specification of willfully disobeying superior commissioned officer, in violation of Article 90, UCMJ. The military judge sentenced Appellant to confinement for six hundred days. The Convening Authority approved the United States v. Frank G. HENDERSON, No. 1426 (C.G.Ct.Crim.App. 2017) sentence, but suspended confinement in excess of 240 days, in accordance with the pretrial agreement.

Before this Court, Appellant has assigned as error that the military offense of adultery violates Appellant’s right to Equal Protection by singling out heterosexual servicemembers for heightened criminal liability.

We reject the issue, following the well-reasoned lead of the Navy-Marine Corps Court of Criminal Appeals in United States v. Hackler, 75 M.J. 648 (N.M.Ct.Crim.App. 2016). The fact that the Manual for Courts-Martial, United States (2012 ed.) (MCM), sets forth elements of adultery in heterosexual terms under Article 134 does not preclude a specification under Article 134 alleging a similar offense involving a married homosexual, which would most likely be subject to the same maximum sentence as that established for adultery in MCM, Pt. IV, para. 62e. See Rule for Courts- Martial 1003(c)(1)(B)(i), MCM.

Decision We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed

For the Court,

Sarah P. Valdes Clerk of the Court