​This sexual assault case is before us a second time. In 2019, we found legal error when Appellant’s squadron executive officer [XO] approved a search authorization. The Judge Advocate General of the Navy certified that issue to the Court of Appeals for the Armed Forces [CAAF], where our decision was reversed and the case was remanded. CAAF affirmed one of Appellant’s findings of guilt for violating a general order by fraternizing—a finding we affirmed—because the search produced no evidence pertinent to that specification. We now review Appellant’s findings of guilt of two specifications for violating a lawful general order, one specification of sexual assault by bodily harm, one specification of abusive sexual contact by bodily harm, and one specification of adultery in violation of Articles 92, 120, and 134, Uniform Code of Military Justice [UCMJ].

​Appellant asserts in his sole assignment of error [AOE] that the Government failed to comply with the plea agreement when it reduced Appellant to paygrade E-1, when no statute or regulation authorized automatic reduction in rank and the terms of the plea agreement disallowed the military judge from imposing reduction in rank. We find no prejudicial error and affirm.

However, the case precedent does not support that Article 66 empowers this Court to resolve pay disputes resulting from an apparent administrative error by the Defense Finance and Accounting Service [DFAS]. Nor need we take such remedial action to resolve Appellant’s AOE. Here, insofar as the United States Government acted without authority by paying Appellant at paygrade E-1, it was not due to a violation of the plea agreement. The plea agreement’s term that “[n]o reduction in rank will be adjudged” was complied with when the military judge did not adjudge a sentence that included a reduction in rank and the convening authority took no action to approve one. 13 Since Appellant has not shown that the Government failed to comply with that term of the plea agreement, we find his AOE to be without merit. We therefore conclude it is beyond the purview of this Court of limited jurisdiction to take remedial action to resolve what amounts to an administrative pay dispute.

​On 25 May 2022, pursuant to Article 6b(e), UCMJ, Petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus to Quash Order to Produce Victim for Testimony at Mil. R. Evid. 412 Hearing and Application For a Stay of Proceedings. Petitioner seeks a Writ of Mandamus vacating the trial court’s ruling that Petitioner’s testimony is necessary and relevant to the Article 39(a) session scheduled for 1 June 2022, vacating the trial court’s order for Petitioner’s production and testimony at the Article 39(a) session, and denying the Accused’s motion for a hearing under Mil. R. Evid. 412.  

While standing duty in his squadron’s ready room, Appellant engaged in a sexually explicit text message conversation with Ms. Charles, a former high school classmate of his. During their exchange, Ms. Charles disclosed to Appellant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and sent Appellant a photo of Miss Bravo, who was lying down, facing away from Ms. Charles. She told Appellant she intended to masturbate once her daughter fell asleep. Appellant responded that he was sexually aroused by the thought of Ms. Charles masturbating in the bed with her daughter and encouraged Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep.

And events developed--etc., etc., etc.

This case involves hazing and assault committed against junior Marines. It is now before us a second time. In 2020, we found the evidence for one of Appellant’s specifications for hazing to be factually insufficient and set it aside and dismissed it with prejudice. But we affirmed a conviction for hazing for Appellant calling a junior Marine a derogatory racial name along with affirming the remaining four specifications of assault consummated by battery for punching the same junior Marine in the stomach and for burning three other junior Marines with a cigarette. We affirmed the burning specifications owing to our belief that the junior Marines could not have legally consented to such an action. United States v. Mader, 79 M.J. 803 (N-M. Ct. Crim. App. 202o) (1).
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In 2021, the Court of Appeals for the Armed Forces [CAAF] affirmed our decision with respect to one of Appellant’s hazing specifications and for one of his assault specifications for punching a junior Marine in the stomach. But CAAF reversed our opinion concerning whether the junior Marines could lawfully consent to being burned with cigarettes and remanded the case.

​“The conversation turned to the problems with the PTA exercise and morale in the communications platoon. Appellant brought up that he and others were “burned” with a cigarette when he joined the platoon as a way of bonding. With this, Appellant took his cigarette and burned the chest of both PFC Bravo and LCpl Echo and LCpl Delta’s shoulder. None of the junior Marines manifested any physical or verbal signs of lack of consent. The socializing continued for some time into the evening without incident.”

Cheers, Phil Cave

​Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”1 With that in mind, we consider whether a military judge may strike a term in a negotiated plea agreement and then rewrite the agreement to his own liking over the objection of one or both of the parties. The President does not have a line-item veto and neither does a military trial judge. We answer in the negative.

​Appellant asserts eight assignments of error [AOE], which we renumber as follows: (1) that the evidence for Specification 1 of the Charge (indecent conduct) is legally and factually insufficient; (2) that the evidence for Specification 2 of the Charge (adultery) is legally and factually insufficient; (3) that the offense of indecent conduct in Specification 1 of the Charge is preempted by Article 120b(c), UCMJ; (4) that the military judge erred when he denied the Defense motion to suppress evidence; (5) that the military judge erred when he ruled that the Defense was not entitled to certain evidence in discovery; (6) that the Entry of Judgment as written is deficient; (7) that the Government committed a discovery violation when it failed to provide the Defense with certain impeachment evidence in discovery; and (8) that the military judge effectively acquitted Appellant of Specification 1 of the Charge when he acquitted him of the word “persuade.”

​We find merit in Appellant’s first AOE because the evidence for Specification 1 of the Charge is legally insufficient,2 and we set aside the guilty finding and dismiss this specification. While we do not find merit in Appellant’s second AOE, we do find merit in Appellant’s fourth AOE, set aside the guilty finding for Specification 2 of the Charge, and authorize a rehearing for this specification. In light of these conclusions and action, we also set aside the sentence and do not reach the remaining AOEs

We do not find the Government’s attempt to avoid the burden of proving an overt act persuasive for a number of reasons. First, the Government’s argument on appeal ignores concessions already made at trial. In its response to Appellant’s motion for a finding of not guilty of this offense under Rule for Courts-Martial [R.C.M.] 917, the Government did not argue that it was not required to prove an overt act, but instead argued that “the substantial step for an attempt can be satisfied by words alone.” Allowing the Government “to tell the military judge one thing . . . and then . . . assert something else on appeal . . . would go against the general prohibition against taking inconsistent litigation positions.”