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(Cite as: 17 M.J. 862) UNITED STATES
ACM 23699. U.S. Air Force Court of Military Review. Sentence Adjudged 2 July 1982. Decided 26 Oct. 1983. Accused, captain, United States Air Force, was convicted by general court- martial, Minot Air Force Base, North Dakota, Michael C. Callinan, J., of adultery and four specifications of conduct unbecoming an officer and a gentleman by having sexual relations with three female enlisted members and by sharing a bed with a married woman while she was intoxicated, and he appealed. The Air Force Court of Military Review, Canellos, J., held that: (1) the accused was guilty of adultery as charged where he had sexual relations with a woman, not his wife, who was married to noncommissioned officer on the same base; (2) where the accused's conduct amounted to actionable adultery, he was culpable of conduct unbecoming an officer and a gentleman for those acts; (3) since the air force regulations authorize all-ranks housing and messing and officer-enlisted marriages, an officer's and an enlisted person's seeing each other socially and dating is not criminal conduct; and (4) voluntary, private and nondeviate acts of fornication between an officer and enlisted woman were not culpable under the article proscribing conduct unbecoming an officer and a gentleman. Affirmed in part and findings of guilty set aside and dismissed in part; sentence set aside. Hodgson, C.J., concurred in part and dissented in part with opinion. Snyder and Miller, JJ., concurred in part and dissented in part
with opinions.
Appellate Counsel for the United States: Colonel Kenneth R. Rengert, Major Michael J. Hoover and Captain Brenda J. Hollis. Before HODGSON, FORAY, HEMINGWAY, KASTL, CANELLOS, RAICHLE, MILLER and SNYDER, Appellate Military Judges, En Banc. 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. [FN1] The "conduct unbecoming" specifications 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). FN1. The charges upon which the accused was arraigned were:
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. [FN2], 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. [FN3], 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. FN2. Art. 134. General article
FN3. Art. 133. Conduct unbecoming an officer and a gentleman
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. [FN4] 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. FN4. 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. I [1] 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.R.*865 1952); United States v. Neville, 7 C.M.R. 180 (A.B.R.1952). [2][3] 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). [4] 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. [FN5] FN5. 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. [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 becamea 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:
FN6. A.F.R. 30-1, Air Force Standards, 30 Sept 77, para 4b. 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. [FN7] 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. [FN8] 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. [FN9] Traditionally, such patronage was restricted. [FN10] FN7. A.F.R. 90-1, Assignment of Family Housing, 19 Dec 77, Table 6-4. FN8. A.F.R. 30-6, Occupancy of Public Quarters, 7 Feb 57, para 16c.
FN9. A.F.M. 215-11, Operation of Open Messes, 9 Oct 79, para. 1-11a(2).
FN10. A.F.M. 176-3, Operations Manual for Open Messes and Other Sundry Nonappropriated Funds, 12 May 71. 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; [FN11] 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; [FN12] 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. [FN13] 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. [FN14] 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. [FN15] A U.S. Army noncommissioned officer was convicted of sleeping in the barracks with two enlisted members whom he supervised as first sergeant. [FN16] 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. [FN17] 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. [FN18] FN11. United States v. Livingston, 8 C.M.R. 206 (A.B.R.1952). FN12. United States v. Free, 14 C.M.R. 466 (N.B.R.1953). FN13. United States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971). FN14. United States v. Lovejoy, 20 U.S.C.M.A. 18, 42 C.M.R. 210 (1970). FN15. Staton v. Froehlke, 390 F.Supp. 503 (D.D.C.1975). FN16. United States v. Horton, 14 M.J. 96 (C.M.A.1982) (rev'd on other grounds). FN17. United States v. Jefferson, 14 M.J. 806 (A.C.M.R.1982). FN18. 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.") 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. [6] 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. III 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). [7] 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). [8] 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. [9] 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). [10] 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). [11] 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. [12] 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. [FN19] This we find not supportable by the evidence. [FN20] FN19. "... 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). FN20. 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 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. *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. [FN21] FN21. 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.
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. [FN22] FN22. The Government's Motion To File Documents is, DENIED. KASTL and HEMINGWAY, Senior Judges and RAICHLE, Judge, concur. FORAY, Senior Judge, not participating. HODGSON, Chief Judge (concurring in part and dissenting in part): The majority has held that an unmarried officer who has sexual relations with an unmarried enlisted subordinate is neither guilty of improper fraternization nor of conduct unbecoming an officer and a gentleman. I respectfully but adamantly disagree. Until our decision today the military services had not broken ranks on the issue of whether fraternization is an offense punishable under the Uniform Code of Military Justice. United States v. Rodriquez, ACM 23545 (A.F.C.M.R. 29 October 1982); United States v. Jefferson, 14 M.J. 806 (A.C.M.R.1982); United States v. Rosario, 13 M.J. 552 (A.C.M.R.1982); United States v. Livingston, 8 C.M.R. 206 (A.B.R.1952); pet. denied 8 C.M.R. 178 (C.M.A.1952); United States v. Lovejoy, 41 C.M.R. 777 (N.C.M.R.1969); United States v. Free, 14 C.M.R. 466 (N.B.R.1953). Further both the Court of Military Appeals and the federal courts have held fraternization to be a unique military offense. United States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1970); United States v. Lovejoy, 20 U.S.C.M.A. 18, 42 C.M.R. 210 (1970); see also United States v. Horton, 14 M.J. 96 (C.M.A.1982); Staton v. Froehlke, 390 F.Supp. 503 (D.C.Cir.1975). Notwithstanding a sizeable body of law to the contrary, the majority has concluded that the prohibition against improper fraternization no longer exists as an offense within the Air Force. My colleagues accurately point out many areas in which the Air Force has fostered the growth of close friendships between officer and enlisted ranks, and, through its own regulations, created circumstances that could be viewed *870 as eroding fraternization as prohibited conduct. Like Judge Snyder, I cannot logically reconcile the Air Force's position that fraternization that blossoms into marriage is acceptable, while that which continues at a less committed level is wrong. However, I can more readily accept this "pocket of de facto immunity" resulting from marriage than I can the erosion of discipline that, in my view, will result from the elimination of fraternization as an offense. The prohibition against fraternization by officers with enlisted members is based on preserving military discipline, not social inequality. United States v. Livingston, supra. There is merit in the bromide that "familiarity breeds contempt." In the context of a military community, orders are to be obeyed, not discussed in the light of the personal relationship between the person giving the order and the individual expected to obey it. Thus it is the time, the place, and the circumstances which dictate the propriety of the relationship between officer and enlisted members. United States v. Free, supra. The prohibition against fraternization within a military organization serves a valid and necessary purpose in maintaining good order and discipline. United States v. Pitasi, supra; United States v. Lovejoy, supra. Accordingly, in my opinion fraternization remains an offense within the Air Force and is punishable under appropriate circumstances. Finally, assuming, arguendo, that fraternization no longer exists
as an offense within the Air Force, the accused's conduct with female enlisted
subordinates clearly amounts to conduct unbecoming an officer and a gentleman.
The majority concludes that since the alleged acts, if committed by an
enlisted member would not invoke criminal sanctions, the accused officer
therefore, lacks culpability. I cannot accept this premise.
A higher standard of conduct is required in law of an officer than is required
of others. United States v. Means, 10 M.J. 162 (C.M.A.1981);
United States v. Parini, 12 M.J. 679 (A.C.M.R.1981). The Supreme
Court of the United States has stated on several occasions that a military
officer holds a position of special trust and responsibility. Parker
v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Orloff
v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). Senior
Judge Hemingway concurring in United States v. Newak, 15 M.J. 541, 545
(A.F.C.M.R.1982), made clear the expected standard. He wrote:
Commissioned officers have a special responsibility to conduct themselves
in a manner that promotes discipline, obedience and respect. That
responsibility cannot be checked at the gate on the way home at the end
of the duty day. [Emphasis added]
For these reasons, I must with deference dissent from Parts II and III of the principal opinion. SNYDER, Judge (concurring in part and dissenting in part): I fully concur with the holding that the accused's sexual relations with the wife of an enlisted member constitute conduct palpably prejudicial to good order and discipline. Such conduct does not require sophisticated analysis in order to reveal its adverse impact on discipline and morale, especially in light of the fact that military members are frequently required to be absent from their home base for lengthy periods. [FN1] FN1. The husband of the accused's partner was performing temporary duty outside the United States during the period of their amorous liaison. However, I dissent from the majority's conclusion that the accused's sexual liaisons with three enlisted women did not constitute *871 conduct unbecoming an officer and gentleman. I will not belabor the reader with a point by point dissection of the majority opinion. Suffice it to say that it misses the mark. Initially, I offer advice to those officers who may mistakenly read the majority opinion as carte blanche to embark upon indiscriminate activities with enlisted personnel of the opposite sex. In my opinion, the majority result means only that one may not be prosecuted under the U.C.M.J. for conduct similar to the accused's. Commanders retain the full array of administrative sanctions, including administrative termination of commissioned status. The following quote from the majority opinion indicates the inherent
fallacy of its conclusion:
The fact of the matter is officers are held to a higher standard
of conduct; and, demanding that the standard be met can, will, and
does result in an officer being held criminally accountable in situations
where enlisted members' derelictions may be disposed of nonjudicially.
This differential is recognized and sanctioned by the Court of Military
Appeals. I offer the following excerpts from the Chief Judge's opinion
in United States v. Means, 10 M.J. 162, 165 and 166 (C.M.A.1981).
* * *
* * *
FN2. Many of the special privileges referenced by the Chief Judge are no longer a reality. I address this fact later in the opinion. The essence of this principle is that whatever the environment, an officer always has the responsibility of conducting oneself as an officer--be it in a consolidated mess, as an infrequent guest at the noncommissioned officers' open mess, [FN3] or as a member of an intramural athletic team. The officer must ensure that undue familiarity does not develop. The fact that the Air Force encourages certain social intercourse in the pursuit of espirit de corps does not detract from this responsibility. However, the official encouragement of such limited intercourse has been misconstrued as a subtle acceptance of all types of relationships between officers and enlisted personnel. A close reading of policy releases on the subject will reveal that not to be the case. The individual responsibility of officers is always included. FN3. Note 9 of the majority opinion omits the following sentence from the referenced regulatory provision: "However, wearing the military uniform in such instances and repeatedly inviting members to one another's open mess is discouraged." OFFICER-ENLISTED MARRIAGES: It would be intellectually dishonest for me to even attempt to hypothesize a legally acceptable position on this anomaly. Suffice it to say that because of the system's implicit acquiescence, those who have joined *872 in such marriages enjoy a pocket of de facto immunity. [FN4] However, that is not an adequate explanation for the failure to take action, especially where the situation is known prior to the parties marrying. Obviously, such marriages have contributed to the turbulence surrounding the issue. FN4. Although a fair number of these marriages are the result of one of the parties thereto obtaining a commission after marrying, that fact does not resolve the issue or reduce the dilemma. It is probably safe to say that if these marriages were not "accepted," or tolerated, the majority opinion could very well be the dissenting opinion. They raise a very fair question: Given their existence, why should one be prosecuted for dating an enlisted person? Perhaps the closest analogy is that failure to prosecute all offenders is no cause to immunize all. However, it should not escape the reader that the desire of others to emulate the conduct which led to those marriages is one possible example of the pernicious impact of officer-enlisted marriages. The main reason for the post-World War II uncertainty which surrounds this topic continues to be the misconception that the doctrine is grounded on social or intellectual inferiority. Inferiority, perceived or otherwise, has absolutely no bearing on the issue. The only driving force is DISCIPLINE. Anyone who believes that a leader can mechanically assign a "friend" to unpopular or hazardous duty is unrealistic. Axiomatically, the troops will be highly aware of the duties assigned to an enlisted person(s) with whom an officer habitually associates or consorts. That is the prejudice to good order and discipline which the line between the ranks is meant to prevent; and an officer and a gentleman will endeavor to keep oneself on the appropriate side of that line. At any rate, making the presence or absence of a supervisory relationship the determining test is also erroneous. Neat compartmentalizations and unit lines have a way of evaporating under combat conditions. An officer's authority and status transcends "unit lines of boundary." Otherwise, e.g., where is the authority to correct a uniform or other violation of one not a member of the correcting officer's unit? Because of the adverse impact on discipline, and the compromising position which ensues, I would hold that the accused's actions constituted conduct unbecoming an officer and a gentleman, and affirm all findings of guilty. Although not necessary for the discussion of the issue before us, I feel compelled to make the following observations. The issue with which we wrestle in this case is not truly the problem. Captain Johanns and others like him are merely manifestations of the symptoms of a larger and pervasive problem, as is the increasing number of courts-martial involving officer accused. Young officers are assuming their rank without an understanding of the significance of receiving a commission from the President, or an appreciation of the special trust and responsibility which accompany the commission. To far too many, it is a pay grade rather than a status. But they do not bear the sole responsibility. It is time for the Air Force's command echelon to squarely address the situation (and in a real sense it is a dilemma), and accept the fact that one reason for the dilemma's existence is the effort to increase the prestige of an increasingly educated enlisted corps. [FN5] Allowing the gradual erosion of many, if not all, of the trappings which once accompanied commissioned officer status has contributed to the problem. Why should one act differently if the system treats everyone identically? [FN6] The "victims" *873 of this state of affairs are the company grade and lower field grade officers. FN5. This is where the misconception concerning inferiority really raises its head. Since probably close to half, if not more, of the enlisted corps hold college degrees, the system cannot be viewed as failing to recognize its talented people. Unfortunately, a significant degree of the prestige bestowed upon the top enlisted grades has been at the expense of the officer ranks--primarily the junior grades. FN6. Assigning members in the top three enlisted grades to Visiting Officers Quarters (VOQ) and the blurring of the distinctions between officers' and enlisted members' uniforms are only two examples. As Chief Judge Everett opined in United States v. Means, supra, the existence of special privileges creates special obligations. But more importantly, they create a very real incentive to demonstrate one's worthiness to have and to hold special privileges. Perhaps a reemphasis, or resurrection, of some of those small intangibles will reduce the number of officers who opt to "be one of the guys" rather than a leader. MILLER, Judge (concurring in part and dissenting in part): In so far as the majority recognizes that no "custom of the service" exists in the United States Air Force which criminalizes "fraternization" (social intercourse) between officers and enlisted personnel, I concur. See the evidence I presented for this position in United States v. Rodriguez, ACM 23545, 29 October 1982 (unpublished). In so far, however, as the majority concludes that the absence of such a criminally enforceable "custom" precludes prosecution of those associations between officers and enlisted personnel which any reasonably prudent officer should immediately recognize are harmful to the maintenance of good order and discipline within the armed forces, I dissent. In my opinion, it is positively ludicrous to imply, as the majority has done in this case, that an officers corps can maintain the dignity and respect necessary to command the unquestioning obedience and trust of enlisted subordinates, if its members are permitted to randomly compete with one half of its subordinate population for the privilege of engaging that subordinate population's other half in the intimacies of recreational fornication. Accordingly, in addition to affirming the adultery specification, I would also affirm those specifications that allege conduct unbecoming an officer in that the accused's acts of fornication with enlisted personnel were, by their very nature, palpably and directly prejudicial to continued good order and discipline in the United States Air Force. A HISTORICAL ANALYSIS OF THE TERMS "CUSTOM OF THE SERVICE" AND "FRATERNIZATION" Much has been written in recent case law and legal literature concerning a "long standing 'custom of the service' " that allegedly prohibits "fraternization" between military officers and enlisted personnel. [FN1] The general gist of these writings asserts that early in our nation's military history, any social intercourse whatever between officers and enlisted personnel, subjected both categories of offenders to immediate court-martial. It then implies that as our nation's concepts of democratic freedom of association expanded and permeated our military population, lines demarcating such unacceptable social intercourse between officers and enlisted personnel became hopelessly blurred (i.e., the line separating those associations which constituted the per se "custom of the service" offense of "fraternization" from those associations which were entirely acceptable, changed so rapidly and frequently that any semblance of the "common consent of the governed" necessary to successfully prosecute such "custom of the service" offenses was effectively obliterated). FN1. See OPJAGAF 1971/69, 30 July 1971; Flatten, Fraternization, 10 Air Force Reporter 109 (Aug 1981). See generally, Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 JAG L.Rev. 124 (1970); Murphy, The Soldier's Right to a Private Life, 24 Mil.L.Rev. 97 (1964); J. Holm, Women in the Military, An Unfinished Revolution (1982); M.E. Treadwell, The Women's Army Corps (1954). See also, U.S. v. Rodriguez, supra; United States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971); United States v. Lovejoy, 41 C.M.R. 777 (N.C.M.R.1968); United States v. Free, 14 C.M.R. 466 (N.B.R.1953); United States v. Livingston, 8 C.M.R. 206 (A.B.R.1952); United States v. Rabb, 81 B.R. 77 (1948); United States v. Patterson, 41 B.R. 365 (1944); U.S. v. Jones, 40 B.R. 149 (1944); and U.S. v. Bunker, 27 B.R. 385 (1943). *874 Specifically, these writings reasoned that because paragraph
213b, MCM (Rev.), 1969, states that a:
Applying this logic to the instant case, the majority, first, correctly notes that it is no longer uncommon for Air Force officers and enlisted personnel to engage in activities that involve mutual social intercourse. Then, after pointing out that such activities violate those long established and accepted general practices upon which the Air Force's ban against "fraternization" is purportedly based, it concludes that the Air Force's "custom of the service" offense prohibiting "fraternization" is no longer viable. It continues that, since fornication is but a particularized type of "fraternization" (albeit, a uniquely intimate one), any prohibitions specifically precluding officers from engaging consenting enlisted personnel in this particular activity has also fallen. Accordingly, the majority concludes that, today, Air Force officers who fornicate with consenting enlisted personnel (or at least consenting enlisted persons who are not directly subordinate to them) do not commit an offense that is prosecutable under the U.C.M.J. While I can well understand the initial attractiveness of this logic (I erroneously went down the same "rose colored path" in Rodriguez, supra ), an in-depth historical analysis of its basic underlying assumptions shows that it is entirely spurious. CUSTOM OF THE SERVICE OFFENSES Violations of a "custom of the service," per se, have never been prosecutable in the Army or the Air Force and they can no longer be prosecuted, as such, in any other branch of the armed forces of the United States. [FN2] FN2. The term "custom of the service," as descriptive of a type of per
se military offense, was used in none of the Articles of War or Army/Air
Force Manuals for Court-Martial that pre-dated the U.C.M.J. and its implementing
Manual for Courts-Martial. Neither was it ever used in such a sense
by Colonel Winthrop in any of his sundry treatises interpreting the various
versions of this nation's Articles of War. Nor was it ever used by
any of those editors of Army Digest of Opinions who succeeded Winthrop.
Rather, any use of the term "custom of the service" in all pre-U.C.M.J.
military justice laws, manuals, and treatises, was always restricted to
either matters of court-martial procedure (including commonly held military
definitions of certain words descriptive of the legislatively pronounced
elements of some offenses) or determinations of allowable punishments.
See, e.g., Winthrop, Military Laws and Precedent, second edition (1920),
at 41-42. Absent reduction of a custom or courtesy of the service
to a law or regulation, or the independently prosecutable nature
of a violator's conduct under the general articles of the Code, or its
predecessing Articles of War, its violation was simply non-prosecutable
at courts- martial. See, e.g., Winthrop, supra, at 617. Of
over 284 opinions involving allegations of offenses involving untoward
relationships between officers and enlisted personnel reported in the 81
volume JAGD Board of Review Opinions, spanning 1929-1948, the 34 volume
JAJD Board of Review Opinions (European Theater of Operations), spanning
1943-1946, and the 12 volume JAGD Board of Review and Judicial Council
Opinions, spanning 1949- 1951, only five of the least artful even referenced
the term "custom of the service." In the only pre-Codal case that
actually charged an accused with an Article of War 95/96 offense (prejudicial
to discipline, conduct unbecoming) alleging that an accused's conduct was
not in accordance with the "customs of the service," the charge was disapproved.
See United States v. Jones, supra. In three of the others, each of
which was upheld a lesser included Article of War 96 (currently, U.C.M.J.,
Art. 134) violation of an Article of War 95 (currently, U.C.M.J., Art.
133) conviction, the term was used only as a shorthand reference to the
fact that the particular misconduct alleged had always been deemed prejudicial
to good order and discipline in past Board of Review Opinions. See
United States v. Bunker, supra; United States v. Patterson, supra,
United States v. Rabb, supra. In the fifth case, the term was simply
a part of the following catch-all sentence: "The acceptance by an
officer of gratuities from enlisted personnel is subversive of good order
and discipline, is contrary to the customs of the service, and to the spirit
of ... (a specific paragraph of an Army regulation)." See United
States v. Price, 42 B.R. 243 (1944).
*875 While the term "customs and courtesies of the service" has long been used by all United States military services to describe unwritten traditions of military service, [FN3] *876 only the now defunct Naval Courts and Boards, 1937, ever endeavored to make the simple violation of some of these customs, in and of themselves, triable by courts-martial. [FN4] FN3. Surveys of current "customs of the service," contained in recent
issues of The Air Officer's Guide (an unofficial, but continually updated
source book, that Air Force officers are often urged to obtain and read)
identify numerous current "customs of the service." A brief sampling,
reveals the following diversity: officers will not walk under umbrellas;
an officer's word or statement will ordinarily be accepted without question;
officers and airmen will not generally associate together in mutual
social activities; when a junior walks with his senior he takes a
position abreast and to the senior's left; the word "Sir" must be
used when junior officers address senior ones, and by all airmen who address
officers; officers should remain at a reception or social gathering
until their commander has departed; when a child is born to an officer's
family, the base commander is to send a personal letter of congratulations
to the parents on behalf of his command; officers will support activities
of their units, as well as, activities of the entire base; officers
will periodically attend religious services at their base chapels;
an officer's uniform and his official or social position must not be defamed;
an officer never volunteers excuses; all official communications
to superiors must be routed through command echelons; officers do
not use vulgar or profane language; excessive indebtedness must be
avoided; and airmen and officers stand erect unless seated, they
must not lean.
FN4. Article 22, Articles for the Government of the Navy (1934 edition)
provided:
* * * (b) Decisions of the President and the Secretary of the Navy and the opinions of the Attorney General and the Judge Advocate General of the Navy. * * *
* * * (d) Customs and usages of the service.
It is particularly ironic, therefore, that the three appellate cases most often quoted by writers, today, who argue that prosecutions for "fraternization" are based upon its status as a per se "custom of the service" *878 offense (to wit: United States v. Free, 14 C.M.R. 466 (N.B.R.1953), United States v. Lovejoy, 41 C.M.R. 777 (N.B.R.1953), and United States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971)), are, in fact, the very ones which sounded the judicial death knell for the only per se "custom of the service" offense practice ever recognized in the armed forces, that of the Navy prior to the U.C.M.J.'s enactment. [FN5] FN5. In 1944, the Judge Advocate General of the Navy, interpreting the
limitations imposed upon Articles for the Government of the Navy, Article
22, by Naval Courts and Boards (1937), section 5, set aside an Article
22 charge and specification that alleged a naval officer had fraternized
with an enlisted man by taking him to dinner, to the theater, and to his
hotel room, where he had spent the night with the enlisted man while occupying
the same bed. This action was taken because none of the specific
facts pleaded in the charge and its specification were sufficient, in and
of themselves, to allege any violation of either written law, as
identified by Naval Courts and Boards (1937), section 3, or those unwritten
naval laws that could properly be identified by reference to Naval Courts
and Boards (1937), Section 5. See United States v. Yocum, CMO 3,
1944, at 412. Since he had earlier recognized that the Navy's long
recognized "custom of the service" banning fraternization (any social intercourse
between its officers and enlisted personnel) was far too general to be
enforceable as an Article 22 violation, see CMO 2, 1941, at 271, and because
no more specific prohibitions against certain types of fraternization had
either been authorized by Navy decisions and opinions or were readily discernible
as independent "customs of the service," the Navy Judge Advocate General
could, in 1944, have rendered no other decision consistent with his then
existing legislative and administrative mandates.
*879 Regardless, then, of how often, and by whom, it has been implied that prosecutions for "fraternization" offenses are dependent upon the continued existence of "long standing customs of the service" (or, more specifically, the common recognition of the current vitality of such customs by a vast majority of service personnel), this simply is not the case. Today, unless specific conduct (or a specific type of conduct) (1) violates one of the U.C.M.J.'s specific Articles or (2) it either is palpably and directly "prejudicial to good order and discipline," "service discrediting," or a "crime or offense not capital" under Article 134 or amounts to "conduct unbecoming an officer" under Article 133, it may not be prosecuted at courts-martial. When determining whether a custom of the service breach may be prosecuted under the U.C.M.J., the only relevant question to be asked is the one which is entirely dispositive; to wit: Whether the specific or general type of conduct alleged violates any punitive *880 article of the U.C.M.J., including either of its two general articles. Whether the custom of the service allegedly breached is, or remains, viable, is totally irrelevant. While cynics may argue that the question of exactly what conduct constitutes an offense under either of these two general articles is based to some extent on "customs of the service," I would counter that a critical examination of post-Codal case law reveals, instead, that this precise question has always been uniformly decided either by a disciplined analysis of whether, in fact, one of the specific "general elements" [FN6] of the particular general article is or is not satisfied, or by citations to past cases [FN7] in which a particular offense's existence has already established by such an analysis. FN6. For an excellent example of such a disciplined analysis, establishing that a specific example of "fraternization" type conduct, in fact, satisfies the "prejudicial to good order and discipline" general element of Article of War 96 (now, U.C.M.J., Article 134), see United States v. Lillis, 39 B.R. 395 (1944). FN7. For excellent examples of such a confirmation of the existence of a general article's offense, despite passing references to "customs of the service," see United States v. Bunker and United States v. Livingston, both supra. FRATERNIZATION Before discussing whether the conduct alleged in this case meets one or more of the "general elements" of either of the U.C.M.J.'s general articles, however, it is necessary, first, to comment upon the very generalized approach that all of my fellow judges have used in their discussions of the specific conduct alleged by the instant specifications. Rather than addressing the specific conduct which the specifications alleged (an officer's indiscriminate "recreational" fornication with enlisted personnel in violation of Article 133 of the U.C.M.J.), they have, instead, chosen to address the question of whether or not a charge of "fraternization" can properly be affirmed as a violation of this Article. In my opinion, it is this patently incorrect statement of the question before them, more than any other single factor, that resulted in their fuzzy and occasionally incorrect handling of those principles necessary to a clear and proper resolution of this case. An in-depth historical analysis of the most recent 238 military appellate case decisions dealing with allegations generically capable of categorization as "fraternization type offenses" (or untoward officer/enlisted conduct) irrefutably demonstrates my point. The first recorded use of the term "fraternization" occurred in
United States v. Bunker, 27 B.R. 385 (1943). There, an Army Board
of Review, apparently confronting contentions that an allegation of conduct
which violated the, then recognized, Army "custom of the service" that
prohibited any "fraternization" between officers and enlisted personnel
could be prosecuted solely on the basis that the alleged conduct violated
a "custom of the service," cleverly modified the traditional statement
of that customary ban against fraternization by stating:
This modifying language was, of course, exceptionally significant. It limited prosecutions for breaches of this particular custom of the service to those few breaches in which the breaching conduct, itself, independently, satisfied the separate criteria for prosecution required by U.C.M.J., Article 134. (Compare the effect of the mollifying language of M.C.M., paragraph 213b, some eight years later. See note 2, herein, supra.) Other usage of the term "fraternize" or "fraternization" has occurred in only ten of the remaining 237 case decisions that have dealt with "fraternization type offenses." [FN8] In five of these, the term was used to *881 describe several instances of varied officer/enlisted misconduct alleged separately or in combination with one another in one or more specifications. [FN9] In two of them, it was used solely to describe allegations that an officer had made male/female sexual overtures to an enlisted person. [FN10] And, in the final three, it was used, once each, in reference to an officer/enlisted homosexual liaison, [FN11] an officer's behavior in the presence of enlisted men amounting to drunk and disorderly conduct; [FN12] and, a bare, unsupported, allegation that an officer "wrongfully fraternize[d] with enlisted men (the board dismissed this allegation based upon lack of evidence)." [FN13] FN8. I do not here consider eight cases that used these terms only in reference to regulatory prohibitions against social intercourse between soldiers and foreign nationals in the European Theater, rather than in reference to any proscription against similar relationships between officers and enlisted persons serving together in our Armed Forces. See United States v. Mistretta, 16 B.R. (ETO) 191 (1945); United States v. Van Houten, 18 B.R. (ETO) 65 (1945); United States v. Blankenship, 22 B.R. (ETO) 279 (1945); United States v. Wofford, 24 B.R. (ETO) 346 (1945); United States v. Malott, 27 B.R. (ETO) 259 (1945); United States v. Wilson, 30 B.R. (ETO) 75 (1945); United States v. Newman, 32 B.R. (ETO) 57 (1945); and United States v. Wallace, 34 B.R. (ETO) 131 (1946). FN9. See United States v. Patterson, 41 B.R. 365 (1944); United States v. Leonard 16 B.R. (ETO) 279 (1945); United States v. Penick, 19 B.R. (ETO) 257 (1945); United States v. Livingston, 8 C.M.R. 206 (A.B.R.1952); and United States v. Free, 14 C.M.R. 466 (N.B.M.R.1953). FN10. See United States v. Morgan, 41 B.R. 73 (1944) and United States v. Brauchler, 15 M.J. 755 (A.F.C.M.R.1983). FN11. See United States v. Lovejoy, 41 C.M.R. 777 (N.C.M.R.1968). FN12. See United States v. Fiedler, 33 B.R. 189 (1944). FN13. See United States v. Jones, 40 B.R. 149 (1944). Of the entire 238 recorded cases, only five referenced any specifications that included the term "fraternization," and only two of these (one of which, also, included factual allegations as to the manner in which the alleged "fraternization" had occurred) were ultimately affirmed. [FN14] FN14. In the sole pre-Codal citation of a specification incorporating
a usage of the term "fraternization, an Army board of review in United
States v. Jones, supra, dismissed an Articles of War, Article 96, specification
alleging simply that the accused "did ... wrongfully fraternize with enlisted
men, thereby seriously compromising his position as an officer" because
"no substantial evidence whatsoever of [the accused officer's] wrongful
fraternization with enlisted men" was presented at trial.
What is most significant about these 238 cases is the fact that, in 227 of them, neither the generic term "fraternization" nor any of its derivatives was even mentioned! Rather, in these cases, the courts and boards recognized that questions pertaining to whether alleged officer/enlisted misconduct does, or does not, breach a *882 "custom of the service" prohibiting "fraternization" are irrelevant to the legal sufficiency of Article 133 or 134 specifications that allege such misconduct. Accordingly, they limited their consideration of that issue to those few questions that are relevant to wit: whether the misconduct alleged within the particular Article 133 or 134 specification confronting them, was, or was not, of a nature to "prejudice good order and military discipline," "discredit the military service," or amount to "conduct unbecoming an officer and a gentleman." And, turning from court, to code or manual usage of the term, we find that, unlike the phrase "custom of the service," the term "fraternize" or "fraternization" has never been used in any United States military law or manual for courts-martial. My fellow judges, then, erred when they chose to define the issue before this Court in terms of a generalized generic notion of fraternization rather than in terms of that factually detailed misconduct which is alleged within the instant U.C.M.J., Article 133 specifications. While those portions of their opinions that relate to the demise of the Air Force's now defunct "custom of the service" banning "fraternization" and the question of whether violations of such a defunct custom may nevertheless still be prosecuted as Article 133 "customs of the service" violations are interesting, they are totally irrelevant to the issue presented by this case. The sole question before us for decision is whether the factually detailed misconduct alleged within the instant Article 133 specifications, under the circumstances of this case, is immediately recognizable by a reasonably prudent officer as an example of conduct that would subject him to potential prosecution for conduct unbecoming an officer and a gentleman. Unfortunately, by limiting their discussions of the history of "fraternization type cases" to those few cases which actually contained the term "fraternize" or "fraternization," my fellow judges also overlooked some exceptionally useful and exceptionally relevant generalizations pertinent to the resolution of this quintessential question. Had they expanded their research so as to encompass those cases which, although not mentioning the term "fraternization," nevertheless, dealt with specific allegation of officer/enlisted misconduct alleged to have violated one of the general articles, they would have been able to glean four distinct categories of officer/enlisted behavior recognized time and again by our appellate courts as violating the proper criteria of Article 133 and 134 offenses. [FN15] Even more *883 importantly, they might have recognized that the behavior alleged, here, falls distinctly within the fourth of these actionable categories, demeaning sexual behavior. FN15. My personal review of 237 military appellate decisions that have
dealt with Article 133 and 134 allegations of officer misconduct in relation
to enlisted personnel reveals, without exception, that all such allegations
fit neatly into conduct described by one of four sub-headings.
*885 THE SPECIFIC QUESTIONS PRESENTED Having conclusively established that concepts embodied by the terms "custom of the service" and "fraternization" are irrelevant to the question of whether factually detailed Article 133 or 134 allegations of untoward officer/enlisted behavior are legally sufficient to support such specifications, I strip the specifications, before me, of this surplusage. Accordingly, the instant specifications become Article 133 allegations that the accused, an unmarried Air Force Captain assigned to Minot Air Force Base, did, at Minot Air Force Base, engage in several acts of sexual intercourse each, with a certain female Air Force Sergeant and with a certain female Air Force Senior Airman. Accordingly, only two questions are germane to my decision. The first is whether or not existing stare decisis identifies multiple acts of fornication by an officer with enlisted personnel as misconduct that is "conduct unbecoming an officer and a gentleman" under Article 133, or, in the alternative, as misconduct that either "prejudices good order and military discipline" or is "service discrediting" under a lesser included Article 134 specification. The second, which must be addressed only if the answer to the first is negative, is whether in the absence of such stare decisis, a disciplined analysis of the likely effect of such blatant and casual acts of fornication upon the respect required of enlisted personnel for thecommissioned status of all officers, might independently establish that the criteria of an Article 133 offense has been met or, in the alternative, whether a similarly disciplined analysis of the likely effect of such acts upon either the continued maintenance*886 of "good order and discipline" within the Air Force or the continued good will of our nation's civilian population toward the Air Force and its leaders, might independently establish that the criteria of a lesser included Article 134 offense has been met. CONCLUSION It is impossible to review the cases I have cited in the fourth sub-heading of note 15, herein, supra, without concluding that the conduct of the accused in this case violated both the Article 133 specification, as alleged, and the lesser included "prejudice to good order and discipline" Article 134 offense, contained within that Article 133 specification. Accordingly, I demur from a more detailed discussion of these cases. I also recognize that the need for a disciplined analysis of the likely effect of the blatant and casual acts of fornication perpetrated by the accused upon his military inferiors upon the respect required of enlisted personnel for the commissioned status of all officers is mooted by the above conclusion. I, nevertheless, remain so completely appalled by the cavalier attitude of the accused toward the quintessential responsibilities of any commissioned officer and the majority's discipline shattering acquiescence to it, that I am compelled to briefly comment upon those circumstances of this particular case which cause me such concerns. First, I would point out that there is no other conduct in this nation, which in recent years has generated a more widely divergent and individually self- righteous group of moral attitudes than that related to individual sexual behavior. Indeed, the so-called "Sexual Revolution," has in many instances even pitted individual family member against individual family member in morally devastating conflicts such as have probably been unequalled in this country since the civil war. Unquestionably, the tide throughout this revolution has been toward a greater and greater tolerance of individual sexual proclivity, and as the majority pointed out, even the former military justice prohibitions against military members fornicating with one another, have been decriminalized. But, to this day, few law abiding activities have been so widely viewed or referred to by various segments of our society as illicit, as are those instances of sexual conduct between consenting adults that have generally been decriminalized within the last two decades. Indeed, despite the "decriminalization" of such sexual conduct, when it has occurred between people with certain fiduciary type relationships to one another (e.g., professor-student, executive-junior executive, congressman-page) it has resulted more often, than not, in unquestioned dismissals, scholarly advocation of such dismissals, [FN16] or unprecedented outrage quelling Congressional reprimands. FN16. See Collins, Managers and Lovers, Harvard Business Review, Sep-Oct, at 142. It is within this emotionally charged arena, that the accused, a commissioned officer in the United States Air Force, first decided for some unknown reason to consciously push against what he believed to be a questionable Air Force taboo, by engaging a variety of young enlisted women in multiple acts of what one of the young women described at trial as "recreational fornication." Every military officer should immediately recognize that an effective fighting force, which it is their mission to achieve, is absolutely dependent upon the unquestioning obedience of subordinates to command. Further, all military officers should recognize that in order to fulfill their mission of achieving this obedience they must never, knowingly, conduct themselves in a manner that would likely cause even a small portion of their subordinate population to question their moral fiber. Clearly, it is impossible for an individual officer to obtain the unquestioning obedience of his subordinates if they regard him with moral suspicion or contempt. Accordingly, every military officer is obliged to insure at all times that his or her moral conduct does not fall to a level that might justify such suspicions, even among a small *887 proportion of his subordinate population. The moment such a commissioned officer's observable moral conduct falls to such a level, is the moment he has become a totally ineffective officer. The moral conduct required of a military officer cannot, therefore, ever be a mere reflection of his own moral values. In point of fact, it cannot even be a reflection of the moral values of a majority of his subordinates. A military leader can simply not be effective when he can only rely on the unquestioning obedience of 60, 70, or even 90 percent of his subordinates. Particularly, in combat situations, where a single disobeyed order can sometimes result in untold horror for obedient individuals, he must command the moral respect of virtually everyone that may be subject to his orders. Had the accused in the instant case any regard whatsoever for his status as a commissioned officer, he would have immediately recognized that his moral behavior, while perhaps not particularly offensive to him would, nevertheless, have been blatantly offensive to that large group of basically fundamentalist church-goers that populated his, and practically every other base in the Air Force (and, some of which undoubtedly were directly subordinate to him). Lacking this regard for his commission, he instead, consciously destroyed not only his own effectuality, but risked the possibility that the emotion charged moral indignation he had aroused might be transferred by these people to other military officers. Similarly, by violating his fiduciary-like duty to the moral well-being of his enlisted subordinates [FN17] he risked subjecting the service to public moral condemnation similar to that which would recently have beset our Congress, had the House of Representatives chosen not to reprimand its members who offended public mores in a similar manner. FN17. See Executive Order 10013, 27 October 1948, as amended by Executive Order 10043, 10 March 1949. See also AFR 50-31, Moral Leadership, 24 October 1969, and its predecessors. Contrary to the overriding concern of the majority, I see no similarity, whatsoever, between the accused's conduct in this case and the conduct of a married officer who engages in sexual relations with his or her enlisted spouse. Here the accused's conduct was actionable because he should have recognized that recreational fornication with a variety of enlisted personnel is still viewed as immoral and promiscuous by a substantial minority of Air Force enlisted personnel, and that he could not effectively function as an Air Force officer, once such a substantial minority of his subordinates had developed a contemptuous suspicion concerning his moral uprightness. Such conduct on the accused's part clearly amounted to conduct unbecoming an officer and conduct prejudicial to good order and discipline. I cannot think of a single Air Force group or person that would be offended by an Air Force officer having sex with his or her spouse, nor can I think of a single instance in which such conduct could be said to amount to conduct unbecoming an officer or conduct prejudicial to good order and discipline. I would affirm the findings and the sentence as adjudged.
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