DD, TF, 1 year, E-1. (Category 1)

In that __________ (personal jurisdiction data), (a married person), did, (at/on board - location), on or about __________, wrongfully engage in extramarital conduct, (to wit: __________) with __________, (a person the accused knew was married to a person other than the accused) (a person the accused knew was not the accused’s spouse), and that such conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

(1) That (state the time and place alleged), the accused wrongfully engaged in extramarital sexual conduct, to wit: __________ with __________;

(2) That, at the time, [the accused was married to someone else, which he/she knew] [(state the name of the person alleged) was married to someone else, which the accused knew]; and

(3) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

“Extramarital sexual conduct” means any of the following acts engaged in by persons of the same or opposite sex:

(a) genital to genital sexual intercourse;

(b) oral to genital sexual intercourse;

(c) anal to genital sexual intercourse; and

(d) oral to anal sexual intercourse.

A “marriage” exists until it is dissolved in accordance with the laws of a competent state or foreign jurisdiction.

(“Conduct prejudicial to good order and discipline” is conduct which causes a direct and obvious injury to good order and discipline. Extramarital sexual conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a Servicemember, or both.)

(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem. “Discredit” means to injure the reputation of the armed forces and includes extramarital sexual conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.)

(Under some circumstances, extramarital sexual conduct may not be prejudicial to good order and discipline but, nonetheless, may be service discrediting. Likewise, depending on the circumstances, extramarital sexual conduct can be prejudicial to good order and discipline but not be service discrediting.)

In determining whether the alleged extramarital sexual conduct in this case is (prejudicial to good order and discipline) (and) (of a nature to bring discredit upon the armed forces), 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 co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces);

(the military status of the accused’s spouse or the co-actor’s spouse, or their relationship to the armed forces);

(the impact, if any, of the extramarital sexual conduct on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces);

(the misuse, if any, of government time and resources to facilitate the commission of the extramarital sexual conduct);

(whether the extramarital sexual conduct persisted despite counseling or orders to desist; the flagrancy of the extramarital sexual conduct, such as whether any notoriety ensued; and whether the extramarital sexual conduct was accompanied by other violations of the UCMJ);

(the impact of the extramarital sexual conduct, if any, on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency);

(whether the extramarital sexual conduct involves an ongoing or recent relationship or is remote in time);

(where the extramarital sexual conduct occurred);

(who may have known of the extramarital sexual conduct);

(whether the accused’s or co-actor’s marriage was pending legal dissolution, defined as an action with a view towards divorce proceedings, such as the filing of a petition for divorce);

(the nature, if any, of the official and personal relationship between the accused and (__________).

The evidence has raised the issue of whether (the accused) (and) (state the name of the co-actor) was/were legally separated at the time of the alleged extramarital sexual conduct. It is a defense to the offense of extramarital sexual conduct that the accused and/or (state the name of the co-actor) was/were legally separated at the time of the extramarital sexual conduct. To be a legal separation, the separation must have been ordered by a court of competent jurisdiction. This defense does not exist unless all parties to the conduct were legally separated. The prosecution has the burden to prove beyond a reasonable doubt that the accused and/or (state the name of the co-actor) was/were not legally separated.

The evidence has raised the issue of mistake on the part of the accused concerning [(his/her) (state the name of the co-actor)’s marital status] [whether (he/she) (state the name of the co-actor) was legally separated] [whether he/she and (state the name of the co-actor) were lawfully married to each other] in relation to the offense(s) of extramarital sexual conduct.

The accused is not guilty of the offense of extramarital sexual conduct if:

(1) he/she mistakenly believed that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, and

(2) his/her mistaken belief was reasonable.

To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct.

Additionally, the mistake cannot be based on a negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.

You should consider the accused’s (age) (education) (experience) (__________) along with the other evidence on this issue, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused was not under the mistaken belief that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, the defense of mistake does not exist. Even if you conclude that the accused was under the mistaken belief that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, if you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused’s mistake was unreasonable, the defense of mistake does not exist.

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).