United States v. Allen

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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Misc. Dkt. No. 2017-02
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David R. ALLEN
Master Sergeant (E-7), U.S. Air Force, Petitioner
v.
UNITED STATES
Respondent
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Petition for New Trial Pursuant to Article 73, UCMJ
Decided 11 August 2017
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Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge, confinement for 1 year, re-
duction to E-3, and a reprimand. Sentence adjudged 17 October 2015
by GCM convened at Ramstein Air Base, Germany.
For Petitioner: Major Annie W. Morgan, USAF; Brian L. Mizer, Es-
quire.
For Respondent: Lieutenant Colonel Lance R. Smith, USAF; Major Col-
lin F. Delaney, USAF; Major Mary Ellen Payne, USAF; Captain Mat-
thew L. Tusing, USAF; Gerald R. Bruce, Esquire.
Before DREW, HARDING, and MINK, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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PER CURIAM:
A general court-martial composed of officer members convicted Petitioner,
contrary to his pleas, of two specifications of dereliction of duty by willfully
failing to refrain from pursuing an unprofessional sexual relationship with
two junior Airmen, including Airman First Class (A1C) (E-3) CG, in violation
of Article 92(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892(3);
Allen v. United States, Misc. Dkt. No. 2017-02
two specifications of dereliction of duty by willfully failing to refrain from
pursuing an unprofessional dating relationship with two other junior Airmen,
also in violation of Article 92(3); and one specification of sexual assault of
A1C CG, in violation of Article 120, UCMJ, 10 U.S.C. § 920. * The court-
martial sentenced Petitioner to a bad-conduct discharge, confinement for one
year, reduction to E-3, and a reprimand. The convening authority approved
the adjudged sentence.
While his appeal under Article 66, UCMJ, 10 U.S.C. § 866, was pending
before this court, Petitioner submitted a petition for a new trial to The Judge
Advocate General of the Air Force. Pursuant to Rule for Courts-Martial
1210(e), the petition was forwarded for our review. Petitioner asserts fraud
on the court and newly discovered evidence with regard to his conviction of
sexual assault. In light of our decision in United States v. Allen, No. ACM
39001, slip op. (A.F. Ct. Crim. App. 11 Aug. 2017) (unpub. op.), finding the
conviction of sexual assault factually insufficient, we DENY the petition as
moot.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
*After arraignment but before the members were sworn, the convening authority
withdrew and dismissed a specification of rape, in violation of the version of Article
120, UCMJ, applicable on or before 30 September 2007. At the close of findings, the
military judge granted a motion for a finding of not guilty, in accordance with Rule
for Courts-Martial 917, as to a specification of abusive sexual contact of A1C CG, in
violation of Article 120, but permitted the Prosecution to proceed with the lesser in-
cluded offense of attempted abusive sexual contact, in violation of Article 80, UCMJ,
10 U.S.C. § 880. The court-martial acquitted Petitioner of attempted abusive sexual
contact and of an additional specification of dereliction of duty by willfully failing to
refrain from pursuing an unprofessional dating relationship with yet another junior
Airman.
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