¹ The Charge and its Specification alleged the following sexual assault: In that [appellant], United States Army, did, at or near Joint Base Elmendorf-Richardson, Alaska, on or about 16 February 2013, commit a sexual act upon Specialist (E-4) [SLH], to wit: penetrating Specialist (E-4) [SLH’s] vulva with his penis, when [appellant] knew or reasonably should have known that Specialist (E-4) [SLH] was unaware that the sexual act was occurring. MARBURY – ARMY 20140023 sentenced appellant to reduction to E-1, two months hard labor without confinement, and a bad-conduct discharge. The convening authority approved all but the hard labor portion of the sentence. We review this case under Article 66, UCMJ. Appellant assigns three errors: the military judge erred in finding abusive sexual contact is a lesser-included offense of sexual assault; the military judge’s finding of guilty is ambiguous, thus precluding this court from conducting a factual sufficiency review; and, the military judge created a fatal variance when, through special findings, he substantially changed the nature of the offense. The first assigned error merits discussion and relief, rendering the second and third moot. FACTS Specialist (SPC) SLH testified she passed out at a fellow soldier’s home after a night of excessive alcohol consumption. She testified appellant woke her up by shaking her and calling her name. Finally, she said she became upset when she noticed appellant was simultaneously engaged in sexual intercourse with her. After reporting appellant’s misconduct, SPC SLH underwent a Sexual Assault Nurse Examination (SANE). A government expert forensic biologist testified she examined a swab taken from SPC SLH’s breast and detected amylase thereon. The expert was able to extract a mixture of deoxyribonucleic acid (DNA) profiles from the amylase; one of the profiles was consistent with appellant’s DNA. After hearing evidence and deliberating on the verdict, the military judge found appellant “Not Guilty of sexual assault, but guilty of abusive sexual contact.” Before appellant presented his pre-sentencing case, the military judge acknowledged potential confusion which may have resulted from his “finding that [appellant] was guilty of a lesser-included offense . . . .” The military judge, sua sponte, announced special findings: The Court finds that...[appellant] committed sexual contact upon [SPC SLH], to wit: touching areas of her body, including her bare breast or breasts, with some part or parts of his body, with the intent to gratify his sexual desires and that [appellant] did so when he knew or reasonably should have known that [SPC SLH] was asleep, unconscious, or otherwise unaware that sexual contact was occurring. The Court finds there is insufficient evidence to find, beyond a reasonable doubt, that [appellant’s] penis penetrated [SPC SLH’s] vulva, anus, or mouth.

² United States v. Riggins, 75 M.J. 78, 82-83 (C.A.A.F. 2016). 3 The following from Riggins concisely states the problem: “This lack of notice was exacerbated in the instant case by the fact that the military judge developed and applied what was, in essence, a new legal theory—one that was never charged or argued by the Government—in the middle of his own deliberations in this case.” Riggins, 75 M.J. at 84.