2001
United
States v. Rogers, 54 MJ 244 (specification charged
under
Article 133, conduct unbecoming an officer, was not void for vagueness
where it
failed to allege a violation of a regulation or custom of the service
which
forbade an unprofessional relationship of inappropriate familiarity
between a
commander and a subordinate officer; the Constitution does not require
that a
regulation of custom of the service be established, with the possible
exception
of officer-enlisted “fraternization cases charged under Article 133
instead of Article
134).
(officer charged with conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity between a
himself and
a subordinate officer was on fair notice that his conduct was
punishable under
Article 133 where a nonpunitive regulation gave examples of
unprofessional
relationships and where that officer had had occasion to discuss and
apply the
standards relating to personal relationships).
(there is certain conduct to which Article 133 clearly applies
without vagueness
of imprecision; but where areas of uncertainly as to the coverage of
the
article remain, further content may be supplied by less formalized
custom and
usage, and the officer charged with an Article 133 offense must have
fair
notice that his or her conduct was punishable).
(specification alleging conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity with a
subordinate
officer did not fail to state an offense because it did not specify the
acts
which constituted the unprofessional relationship; the acts did not
constitute
the relationship, rather they evidenced that relationship, and
appellant was
notice of those acts which were set forth in a Bill of Particulars as
supplemented by the Article 32 investigating officer’s report).
(evidence was legally sufficient to support finding of guilty of
specification alleging conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity with a
subordinate
officer – this evidence is set forth in some detail in the Senior Judge
Cox’s
opinion).
United
States v. Frelix-Vann, 55 MJ 329 (dual convictions
under
Article 133 and Article 121, UCMJ, cannot be sustained when based on
the very
same act, i.e., where the criminal conduct alleged in the
Article 121
violation is the sole basis for the allegation of conduct unbecoming an
officer
under Article 133).
United
States v. Brown, 55 MJ 375 (Article 133,
prohibiting
conduct unbecoming an officer and a gentleman, is constitutional as
applied to
members of the armed forces, so long as the accused has received fair
warning
of the criminality of his or her conduct).
(Article 133 is not violated by conduct that falls short of the
attributes
of an ideal officer and the perfect gentleman or by slight deviations
constituting indecorum or breaches of etiquette, but by conduct that
exceeds
the limit of tolerance set by the custom of the service to which the
officer
belongs).
(in prosecution for conduct unbecoming an officer and a gentlemen
under
Article 133, UCMJ, military judge did not abuse his discretion by
admitting Air
Force Pamphlet setting forth policy on sexual harassment to show notice
of the
type of conduct that was prohibited and to establish the applicable
standards
of conduct in the Air Force community).
(in prosecution for conduct unbecoming an officer and a gentlemen
under
Article 133, UCMJ, notice of the type of conduct that was prohibited
and the
applicable standards of conduct in the Air Force community was
particularly
important where the charges alleged verbal and physical sexual
harassment as
the unbecoming conduct; under these circumstances, pamphlets or other
evidence
of customs and standards limiting communications with fellow officers
of the
opposite sex provide notice of the distinctions between permissible
banter and
impermissible remarks).
(Air Force Pamphlet setting forth policy on sexual harassment was
relevant
in prosecution for conduct unbecoming an officer and a gentlemen under
Article
133, UCMJ, because: (1) pamphlet’s focus on “unwelcome” comments
provided
notice of the standard for making the critical distinction between
permissible
and impermissible speech; and, (2) the pamphlet set a standard that
conduct be
not merely offensive, but that it be so severe or pervasive that it
creates a
hostile work environment).
(Air Force Pamphlet setting forth policy on sexual harassment was
relevant
in prosecution for conduct unbecoming an officer and a gentlemen under
Article
133, UCMJ, but it may be necessary in given cases to protect against
the
impermissible introduction of command policy into the deliberation room
by
redacting some examples or by providing tailored instructions
explaining the
difference between examples and standards of conduct, and further
explaining
the manner in which the standards of conduct apply to the elements of
proof).
(evidence was legally insufficient to support findings of guilty of
conduct
unbecoming an officer and a gentleman for persistently directing
comments and
questions of a personal or sexual nature to three fellow officers; the
government had relied upon the policy of an Air Force pamphlet on
sexual
harassment to show notice of the type of conduct that was prohibited
and to
establish the applicable standards of conduct in the Air Force
community, and
the evidence showed that the verbal conduct at issue did not violate
the
standard relied upon by the government).
(evidence was legally sufficient to support findings of guilty of
conduct
unbecoming an officer and a gentleman for physical contact with fellow
officers
where the contact involved intimate contact with members of the
opposite sex
that was not incidental, collegial or innocuous, and it was not
reasonable for
appellant to assume that his fellow officers would consent to physical
contact
of an intimate nature absent some communication of receptivity or
consent).
2000