United States v. Johanns

DECISION CANELLOS, Judge: The accused was convicted, contrary to his pleas, of adultery and of four specifications of conduct unbecoming an officer and a gentleman by having sexual relations with three female enlisted members (one of them married), and by sharing a bed with the married woman while she was intoxicated.1 The “conduct unbecoming” specifi — 864 — cations are couched in terms that the accused did “dishonorably and disgracefully fraternize and associate on terms of military equality with enlisted members of the United States Air Force.” (emphasis added). The approved sentence extends to dismissal from the service. On appeal, the accused claims that (1) the court lacked jurisdiction over the adultery, charged as a violation of Article 134, U.C. M.J.2, 10 U.S.C. § 934, since he did not violate North Dakota law and his conduct therefore did not discredit the armed forces, (2) Article 133, U.C.M.J.3, is void for vagueness as it applies to fraternization, (3) he was tried on the basis of selective prosecution, and (4) the ban on fraternization abridges his right to freedom of association. The facts are not in dispute. The accused was a single, 28 year old missile combat crew commander who had been stationed at Minot Air Force Base, North Dakota, since completion of training in 1978. The Officers’ Open Mess at Minot was being redecorated; as a result, officers had been authorized to utilize the facilities of the Noncommissioned Officers’ Open Mess. The accused availed himself of the opportunity and socialized at the NCO Club. There he met Sgt R. (who was married), SrA P. and SSgt K. He dated each and ultimately had sexual relations with them all. On one occasion, the accused and Sgt R. went on a date downtown, and thereafter returned to her house on base. Sgt R. was intoxicated and therefore remembers nothing other than the next morning the accused was asleep next to her in her bed. All this interaction was completely consensual, private, nondeviate, and sometimes instigated by the women involved. The accused was neither the commander nor supervisor of any of these enlisted members, and their respective relationships were not publicized.4 In the opinion of the enlisted women, the accused’s activities were neither dishonorable nor service discrediting. The charges resulted from these apparently private, voluntary liaisons. I We affirm the conviction of the offense of adultery. Adultery, although seldom prosecuted, is a viable offense subject to trial by court-martial. See generally United States v. Butler, 5 C.M.R. 213 (A.B. — 865 — R.1952); United States v. Neville, 7 C.M.R. 180 (A.B.R.1952). The accused claims that under the law of North Dakota he did not commit adultery; however, it is the military law which defines the parameters of the offense of adultery, not state law. United States v. Panchisin, 30 C.M.R. 921 (A.F.B.R.), pet. denied, 31 C.M.R. 314 (1961). It is not required to show that the accused was married; rather, it is sufficient to show that either of the participants was married to a third party. United States v. Melville, 8 U.S.C.M.A. 597, 25 C.M.R. 101 (1958), United States v. Hedgecock, 30 C.M.R. 624 (N.B.R.1960). Accordingly, we are convinced that the accused is guilty of the adultery as charged. The evidence clearly establishes that the accused had sexual relations with a woman, not his wife. The woman was an enlisted member of the United States Air Force, married to a noncommissioned officer on the same base. An officer having sexual relations with the wife of an enlisted member clearly acts in a manner prejudicial to good order and discipline under Article 134, U.C.M.J.5 Having determined that the accused’s conduct amounted to actionable adultery, we further find, on these facts, that he was culpable of conduct unbecoming an officer and a gentleman for such acts. II We next turn our attention to the four offenses' bottomed on “fraternization”. It is propounded by the Government that there is in the United States Air Force a custom which proscribes unlawful fraternization and makes actionable the association of officers with enlisted personnel on terms of military equality. We find that at the time of the offenses in issue, there did not exist a clearcut standard for gauging so called “fraternization” in the Air Force; as a result, alleged violations grounded on fraternization are not actionable under the U.C.M.J. We begin with an historical review of the offense of fraternization. Prior to its becoming a separate service, the Air Force was, of course, a part of the U.S. Army. There supposedly existed in the Army a custom of the service that officers and enlisted personnel would not associate together in mutual social activities. However, during World War II, dating between officers and enlisted personnel was commonplace, and if there were any restrictions against such interaction, they were not enforced. See generally Treadwell, The Women’s Army Corps, . in UNITED STATES ARMY IN WORLD WAR II (1954). This type of dating apparently did not adversely affect morale and discipline. J. HOLM, WOMEN IN THE MILITARY, AN UNFINISHED REVOLUTION (1982). When it became a separate service, the Air Force proclaimed that officers and airmen would not generally associate together in social activities; this more progressive attitude was consistent with the less formal atmosphere existing in the Air Force, as compared with the Army. See generally Flatten, Fraternization, 10 A.F. Reptr. 109 (1981). Since that time, the Air Force has promulgated rules which authorize certain activities on the part of Air Force personnel, including those dealing with housing and messing, which contravene a strict application of what was supposedly a customary prohibition against fraternization. A booklet on Air Force standards was published in 1977. It did not discuss fraternization, but did provide: Since we live and work in a very close environment and endure common hardships, officer and enlisted personnel frequently develop close personal friendships. However, friendships must not in — 866 — terfere with judgment or duty performance.6 Within the last decade, the directive governing the assignment of on-base family quarters was changed to authorize officers who were married to enlisted members to reside on base, with an option to select whether they resided in officer or enlisted housing.7 Prior to that time, such a married couple would not have normally been authorized to reside on base because such was not considered to be in the best interests of the Air Force.8 The regulations governing the operations of the Open Messes were changed to permit officers and enlisted personnel to patronize each other’s clubs as guests.9 Traditionally, such patronage was restricted.10 In addition, the Air Force has fostered management principles which encourage close interpersonal relationships at the expense of the strict, customary distinction between officers and airmen. The reported cases dealing with the subject of fraternization have been few and far between. They include: a U.S. Army officer convicted of inviting an enlisted man to his tent, offering him liquor and then making homosexual advances towards him;11 a U.S. Marine officer convicted of inviting an enlisted man to his room on base where he gave him liquor and made homosexual advances; 12 a U.S. Navy officer convicted of taking an enlisted man to the Officers’ Club, then to his room on base and there committing acts of sodomy.13 In that case, the Court of Military Appeals recommended that actions violative of the custom against fraternization should be included in an appropriate regulation so that adequate notice is given to all potential violators. A U.S. Navy officer was convicted of bringing an enlisted man into his apartment to live, and there committing acts of sodomy with him.14 One Judge of the U.S. Court of Military Appeals recommended that violations of this type be handled by administrative means. A U.S. Army warrant officer was acquitted of rape, but convicted of drinking with three enlisted personnel, taking them to his house, where he bathed one female and had sexual relations.15 A U.S. Army noncommissioned officer was convicted of sleeping in the barracks with two enlisted members whom he supervised as first sergeant.16 A U.S. Army officer was convicted of committing adultery with an enlisted woman in his chain of command, during duty hours, in the barracks.17 Finally, this Court, in an unpublished decision, held that an officer who provided drugs to — 867 — her subordinates, and then used drugs with them, could be convicted of unlawful fraternization; however, because of an instructional failure, the conviction as to that specification was disapproved.18 In all of these reported cases, some aberrant conduct was in evidence; homosexual activity, alleged rape, supervisors seeking sexual favors from their subordinates and performing indecent acts before others. Notably absent from the opinions in the cited cases is any discussion of voluntary, private, non-deviate sexual activity between of-age officer and enlisted members, who were not associated with one another in any way on duty. After this review of history and case law, we address the immediate question. To assist us, the Government, in its able oral argument, asks this Court to declare that mere dating between officers and airmen violates custom; that non-deviate, consensual and private sexual intercourse between them violates custom; and finally that marriage between them violates custom, but is a “fait accompli” against which the Government, yielding to a higher priority, chooses to take no action. We expressly refuse to so declare. If there exists a customary ban on fraternization, and the avowed reason for such a custom is that fraternization is inimical to good order and discipline in the armed forces, how then could marriage change that effect? In our opinion, the situation would appear exacerbated by the closer relationship spawned by the marriage. Whether the present situation is good or bad for overall readiness is not the issue before this Court. Rather we must measure the accused’s alleged criminal conduct against the “real world” in which all-ranks housing and messing, and officer-enlisted marriages are currently authorized. Given such practices, authorized by regulation, we cannot say that seeing each other socially and dating is criminal conduct. Furthermore, once it is acceptable to have officers married to enlisted members, it is logical to conclude that mere dating is also acceptable, since that is nothing more than the socially accepted preliminary stage to such marriages. Also using our common sense and knowledge of human nature and the ways of the world, we note that it is not an uncommon practice for men and women who are dating, with or without marriage in sight, to engage in sexual relationships; in contemporary society such a practice is not considered immoral or unusual. Ill We close our discussion by examining the aspect of the crimes charged which is premised on conduct unbecoming an officer and a gentleman under Article 133, U.C. M.J. Because the words thereof are so broad, it is argued by the accused that the standard set thereby is ambiguous, and the Article fails for vagueness. See generally Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 JAG L.Rev. 124 (1970). Despite this, the United States Supreme Court has held that the Article is not facially vague; therefore, an officer may be punished thereunder for offenses that he has “no reasonable doubt ... were both ‘unbecoming an officer and a gentleman’ and ‘to the prejudice of good order and discipline in the armed forces.’ ” Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In the evolution of the “Void for Vagueness Doctrine,” this rule has emerged: To satisfy the requirements of the Due Process Clause of the U.S. Constitution, a criminal statute must clearly spell out the activity being proscribed so that persons of reasonable intelligence can understand the expected conduct and thereafter conform their conduct to it. Any statute which fails to accomplish this is void. United States v. National Dairy — 868 — Products, 372 U.S. 29, 83 S.Ct. 594, 9 L. Ed.2d 561 (1963). Customs of the service can clarify the general article and help define the standard expected. In order to qualify as such, a custom must be uniform, a known practice of long standing, certain and reasonable, and not in conflict with existing statutes or constitutional provisions. See Winthrop, Military Law and Precedents, 42 (2d ed. 1920 reprint). Likewise, non-usage may eliminate a previously well-established custom. M.C.M., 1969 (Rev.), para. 213b. As we discussed earlier, the standards and customs of the prior day, not memorialized by regulation, are no longer effective as such. In the context of the offenses charged here, rather than solving the vagueness problem inherent in the general articles through the use of customs of the service, the vagueness becomes even more pronounced; this is so because the customs themselves are unwritten and vague. See generally Nelson, supra. Looking at the issues from another viewpoint, Congress never intended to regulate the wholly private moral conduct of an individual servicemember under the general articles. United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15 (1952). Therefore, it has been consistently held that fornication in the absence of aggravating factors is not an offense under military law. United States v. Snyder, supra; United States v. Berry, 6 U.S.C.M.A. 609, 20 C.M.R. 325 (1956); United States v. Wilson, 32 C.M.R. 517 (A.B.R.1962). Sharing a bed with a woman without proof of sexual intercourse, is also not an offense absent such aggravating factors. United States v. Prater, 5 B.R. & J.C. 228 (1950). It is the nature of the acts themselves, the place where they occur, the presence or absence of other people, the military relationship between the officer and the enlisted member, and the likely effects of the incident on the attitude of the enlisted member and others present which are all important in determining whether sexual acts between officers and enlisted members are unlawful. United States v. Jefferson, 14 C.M.R. 806 (A.C.M.R.1982); Murphy, The Soldier’s Right to a Private Life, 24 Mil.L.Rev. 97 (1964). With this background on fraternization and conduct unbecoming an officer, we consider the facts of this case on its merits. Clearly the acts of fornication with SrA P. and SSgt K. had no attendant exacerbating circumstances. They were voluntary, private and non-deviate. If the accused had been an enlisted man, he clearly would not have been culpable. Concededly, officers are held to a higher standard of conduct than enlisted personnel, and their conduct should be exemplary. However, an act should not be labelled as criminal if committed by an officer but innocent when committed by an enlisted person, especially when a critical question turns on an interpretation of the law. United States v. Claypool, 10 U.S.C.M.A. 302, 27 C.M.R. 376 (1959). The only basis for finding the accused culpable for these offenses is that his status as an officer, coupled with the enlisted status of the women, made the acts wrongful. In order to sustain that finding, we must conclude that the acts themselves were criminal because of their surrounding circumstances.19 This we find not supportable by the evidence.20 — 869 — We specifically find that as a matter of fact and law the custom in the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable.21 Accordingly, only so much of the findings as finds the accused guilty of committing adultery, as alleged in Charge II, and of conduct unbecoming an officer for the conduct attendant thereto, as alleged in Specification 1 of Charge I, is affirmed. The remaining findings of guilty are set aside and are dismissed. The sentence is set aside. A rehearing on the sentence is ordered.22 KASTL and HEMINGWAY, Senior Judges and RAICHLE, Judge, concur. FORAY, Senior Judge, not participating. Footnotes [1] The charges upon which the accused was arraigned were: Charge I: Violation of the Uniform Code of Military Justice, Article 133, 10 U.S.C. § 933. Specification 1: In that CAPTAIN MICHAEL A. JOHANNS, United States Air Force, 91st Strategic Missile Wing, did, at Minot Air Force Base, North Dakota, on or about 5 October 1981, wrongfully, dishonorably, and disgracefully have sexual intercourse with Donna R. R., Sergeant, United States Air Force, the said Sergeant Donna R. being, at that time, the lawful wife of an active duty enlisted member of the United States Air Force, contrary to the customs and traditions of the armed forces of the United States. Specification 2: In that CAPTAIN MICHAEL A. JOHANNS, United States Air Force, 91st Strategic Missile Wing, did, at Minot Air Force Base, North Dakota, on or about 8 October 1981, wrongfully, dishonorably, and disgracefully fraternize and associate on terms of military equality with enlisted members of the United States Air Force, to wit: Sergeant Donna R., by going into the military quarters of the said Sergeant Donna R. at Minot Air Force Base, North Dakota and sharing the same bed with the said Sergeant Donna R. while the said Sergeant Donna R. was the lawful wife of an enlisted member of the United States Air Force, contrary to the customs and traditions of the armed forces of the United States. Specification 3: In that CAPTAIN MICHAEL A. JOHANNS, United States Air Force, 91st Strategic Missile Wing, did, at Minot, North Dakota, on three or four separate occasions during September, 1981, wrongfully, dishonorably, and disgracefully fraternize and associate on terms of military equality with Staff Sergeant, then Sergeant, Sheryl K., a female active — 864 — duty enlisted member of the United States Air Force, by engaging in acts of sexual intercourse with the said Staff Sergeant, then Sergeant, Sheryl K., contrary to the customs and traditions of the armed forces of the United States. Specification 4: In that CAPTAIN MICHAEL A. JOHANNS, United States Air Force, 91st Strategic Missile Wing, did, at Minot Air Force Base, North Dakota, on two or three occasions, during November, 1981, wrongfully, dishonorably, and disgracefully fraternize and associate on terms of military equality with Senior Airman Michelle P., then known as Senior Airman Michelle S., a female active duty enlisted member of the United States Air Force, by engaging in acts of sexual intercourse with the said Senior Airman Michelle P., then known as Senior Airman Michelle S., contrary to the customs and traditions of the armed forces of the United States. Charge II: Violation of the Uniform Code of Military Justice, Article 134. Specification: In that CAPTAIN MICHAEL A. JOHANNS, United States Air Force, 91st Strategic Missile Wing, did, at Minot Air Force Base, North Dakota, on or about 5 October 1981, wrongfully have sexual intercourse with Donna R., a married woman, not his wife. [2] Art. 134. General article Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. [3] Art. 133. Conduct unbecoming an officer and a gentleman Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. [4] It was stipulated at trial that the allegations were brought to the attention of the accused’s commander by a member of his squadron on the basis of inferences he drew from conversations with the accused. [5] It is unnecessary to show that the conduct of the accused was also of a nature to bring discredit upon the armed forces, this being an alternate method of proving a violation of Article 134, U.C.M.J. [6] A.F.R. 30-1, Air Force Standards, 30 Sept 77, para 4b. [7] A.F.R. 90-1, Assignment of Family Housing, 19 Dec 77, Table 6-4. [8] A.F.R. 30-6, Occupancy of Public Quarters, 7 Feb 57, para 16c. IF ONE SPOUSE IS AN OFFICER OR WARRANT OFFICER, AND THE OTHER IS AN ENLISTED PERSON, assignment to family-type public quarters is not considered to be in the best interest of the service, and such assignment will not normally be made. In this case, both members will be permitted to reside jointly off the base, regardless of the availability of public quarters for their occupancy. [9] A.F.M. 215-11, Operation of Open Messes, 9 Oct 79, para. 1-1 la(2). Officer and enlisted open mess members may use one another’s open mess as guests... The degree to which such privileges are extended or encouraged is a local decision based on membership desires, space limitations, social commitments, and other morale or protocol considerations. [10] A.F.M. 176-3, Operations Manual for Open Messes and Other Sundry Nonappropriated Funds, 12 May 71. [11] United States v. Livingston, 8 C.M.R. 206 (A.B.R.1952). [12] United States v. Free, 14 C.M.R. 466 (N.B.R.1953). [13] United States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971). [14] United States v. Lovejoy, 20 U.S.C.M.A. 18, 42 C.M.R. 210 (1970). [15] Staton v. Froehlke, 390 F.Supp. 503 (D.D.C.1975). [16] United States v. Horton, 14 M.J. 96 (C.M.A.1982) (rev’d on other grounds). [17] United States v. Jefferson, 14 M.J. 806 (A.C.M.R.1982). [18] United States v. Rodriguez, ACM 23545, (A.F.C.M.R. 29 October 1982) (Judge Miller concurring in result, and finding that the Air Force regulations “have not only terminated the existence of the custom [against fraternization], but also the offense that was once chargeable as a violation of that custom.”) [19] “... To constitute therefore the conduct here denounced, [unbecoming an officer and gentleman] the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.” Winthrop, Military Law and Precedents, 711-712 (2d Ed., 1920 reprint). [20] The accused was concerned that his amorous involvements with enlisted women could be wrong. As a result, he consulted his supervisor, Col. W., who told the accused that, in his opinion, it would be actionable fraternization if the accused dated enlisted women. Col W. admitted that he was not sure if this were the Air Force policy, however it was clearly his — 869 — opinion. When pressed by the accused, Col W. gave the accused a copy of the article written by Colonel Flatten, referred to herein, and told to read it since it explained Air Force policy. Our reading of this article reveals that the author believes there is no longer a violation of custom for an officer to “fraternize” with an enlisted member, so long as they have no command or supervisory relationship. Further, testimony at trial from a former wing commander at Minot AFB, indicated that “fraternization” was common on the base. [21] We do not by this opinion indicate our personal assessment of the moral implications of the conduct described above. We certainly do not mean to imply that the conduct was model, nor that it should be condoned. As recognized earlier, situations of this type may best be handled by administrative means. Also, we recognize that a stricter rule on fraternization may be required and desirable. This could be done by appropriate service regulation. We note that the dissenting judges all assert, without citation of relevant precedent, that the activities of the accused were of the type to be prejudicial to good order and discipline. We discern no bedrock authority for such conviction and we conclude that it is based on their personal perceptions of what the standards ought to be, not on a careful analysis of what the standard is in the United States Air Force today. We are a court of law and are charged with the responsibility of determining existing law and applying it to the facts of a case. It is not part of our duty to conceal what is so or to engage in wishful thinking that the policy ought to be different. In short, we are not a policy making body-such authority reposes in those authorized policy making powers (command). [22] The Government’s Motion To File Documents is, DENIED.