In Medina, CAAF holds that unless expressly pled, clauses 1 and 2 of Article 134 are not LIOs of a clause 3 offense. Judge Baker, joined by Chief Judge Effron and Judges Erdmann and Ryan. Judge Stucky dissented.
CAAF also held that in this case, it was insufficient that during the providence inquiry, the military judge elicited Staff Sergeant Medina's agreement that his conduct was actually service discrediting. CAAF reasoned, "while we know that Appellant admitted to service discrediting conduct in the context of pleading guilty
to the violations of Title 18, we do not know whether he would have done so with the knowledge that he was not required to admit his conduct satisfied the alternate theory under Article 134(2)." Id., slip op. at 15-16. CAAF observes that it isn't clear whether Staff Sergeant Medina would have believed his conduct to be service discrediting if it had been legal under federal law. Judge Baker offers this wonderful analogy to illuminate the point:
[T]he Endangered Species Act, 16 U.S.C. § 1531-1544 (2000), authorizes criminal sanctions for taking or possessing, among other things, a variety of wildlife species listed by the Secretary of the Interior as endangered. Presumably, an accused could be charged and could plead guilty to violations of this act under the "crimes or offenses not capital" clause of Article 134, UCMJ. As in this case, he might even agree that his conduct was service discrediting. If, however, on appeal it is discovered that the particular species was, for instance, removed from the list before the date of the alleged offense, then the accused would only stand convicted of conduct that without the express proscription under federal law would not otherwise be criminal under the United States Code.
Medina, slip op. at 16-17.
In his dissent, Judge Stucky offers this trenchant observation: "It is a mystery to me why, after this Court's ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3." I think Professor George Santayana solved that mystery.