See paragraph 91.

That the accused wrongfully engaged in extramarital conduct as described in subparagraph c.(2) with a certain person;

That, at the time, the accused knew that the accused or the other person was married to someone else; and

That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

To constitute an offense under the UCMJ, the extramarital conduct must either be directly prejudicial to good order and discipline or service discrediting or both. Extramarital 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. Extramarital conduct may be Service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. “Discredit” means to injure the reputation of the armed forces and includes extramarital 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. While extramarital conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline. Commanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether extramarital conduct is prejudicial to good order and discipline or is of a nature to bring discredit upon the armed forces, or both:

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 spouse of the co-actor, or their relationship to the armed forces;

The impact, if any, of the extramarital 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 conduct;

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

The negative impact of the conduct 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 accused’s or co-actor’s marriage was pending legal dissolution, which is defined as an action with a view towards divorce proceedings, such as the filing of a petition for divorce; and

Whether the extramarital conduct involves an ongoing or recent relationship or is remote in time.

The conduct covered under this paragraph means any of the following acts engaged in by persons of the same or opposite sex:

genital to genital sexual intercourse;

oral to genital sexual intercourse;

anal to genital sexual intercourse; and

oral to anal sexual intercourse.

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

It is an affirmative defense to the offense of Extramarital sexual conduct that the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct.

Mistake of fact : A defense of mistake of fact exists if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried or legally separated, or that they were lawfully married to each other. If this defense is raised by the evidence, then the burden of proof is upon the United States to establish that the accused’s belief was unreasonable or not honest. Dishonorable discharge, d. Maximum punishment . forfeiture of all pay and allowances, and confinement for 1 year.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

In that ____________ (personal jurisdiction data), (a married person), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________ 20 ___, 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).