United States v. Rogers

UNITED STATES, Appellee
v.
Shelley S. ROGERS, Lieutenant Colonel
U.S. Air Force, Appellant
No. 99-0838
Crim. App. No. 32711
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Argued April 5, 2000
Decided November 8, 2000
COX, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN and GIERKE, JJ., joined. SULLIVAN,
J., filed a concurring opinion. EFFRON, J., filed an opinion
concurring in part and dissenting in part.
Counsel
For Appellant: Major Robin S. Wink (argued); Frank J. Spinner (on
brief).
For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony
P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on
brief).
Military Judge: James E. Heupel
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Rogers, No. 99-0838/AF
Senior Judge COX delivered the opinion of the Court.
Appellant was the commander of the 90th Fighter Squadron,
which deployed from Elmendorf Air Force Base (AFB), Alaska, to
Aviano Air Base (AB), Italy. He stands convicted of disorderly
conduct on divers occasions and conduct unbecoming an officer by
"wrongfully and willfully develop[ing] an unprofessional
relationship of inappropriate familiarity" with First Lieutenant
(1Lt) Julie Clemm, a subordinate member of his command.1 Both
offenses were alleged to have occurred at or near Pordenone,
Italy, in November and December of 1995.
1
Violations of Articles 133 and 134, Uniform Code of Military Justice,
10 USC §§ 933 and 934. The disorderly conduct charge (Art. 134) was
unrelated to the conduct unbecoming charge (Art. 133), and there are no
issues before us concerning disorderly conduct. The evidence adduced on that
charge revealed
that on more than one occasion, in the city streets
of Pordenone, Italy, the accused walked on the cars
of others that were parked along the street. On each
of these occasions he did so in the presence of
subordinates under his command. On the last
occasion, which occurred after an impromptu promotion
party, the accused had to be restrained by an officer
under his command who observed damage to the
vehicles.
United States v. Rogers, 50 M.J. 805, 813 (A.F.Ct.Crim.App. 1999). As approved
by the convening authority and affirmed by the Court of Criminal Appeals,
appellant's sentence is a reprimand and forfeiture of $2,789 per month for 4
months.
2
United States v. Rogers, No. 99-0838/AF
We granted review of these issues:
I
WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY UPHOLDING CHARGE II AND THE
SPECIFICATION THEREUNDER (ALLEGING AN
UNPROFESSIONAL RELATIONSHIP UNDER ARTICLE
133) BECAUSE THE SPECIFICATION WAS
UNCONSTITUTIONALLY VAGUE WHEN IT FAILED TO
IDENTIFY A RELEVANT CUSTOM OR REGULATION
WHICH PROHIBITS RELATIONSHIPS BETWEEN
OFFICERS.
II
WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY UPHOLDING CHARGE II AND THE
SPECIFICATION THEREUNDER (ALLEGING AN
UNPROFESSIONAL RELATIONSHIP UNDER ARTICLE
133) BECAUSE THE SPECIFICATION FAILED TO
IDENTIFY SPECIFIC ACTS WHICH CONSTITUTED AN
UNPROFESSIONAL RELATIONSHIP AND AS SUCH
FAILED TO STATE AN OFFENSE.
III
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO FIND APPELLANT GUILTY OF CHARGE II,
WILLFULLY DEVELOPING AN UNPROFESSIONAL
RELATIONSHIP WITH 1LT CLEMM.
Being a court with only legal review authority, Art. 67(c),
Uniform Code of Military Justice, 10 USC § 867(c), we review
facts in the light most favorable to the prevailing party below.
It is not our function to reweigh evidence and determine guilt
or innocence anew. In the case of legal sufficiency of the
evidence, our standard of review is "whether, considering the
evidence in the light most favorable to the prosecution, a
3
United States v. Rogers, No. 99-0838/AF
reasonable factfinder could have found all the essential
elements beyond a reasonable doubt." United States v. Turner,
25 M.J. 324 (CMA 1987); see Jackson v. Virginia, 443 U.S. 307, 319
(1979). Further, "[i]n resolving legal-sufficiency
questions, . . . [we are] bound to draw every reasonable
inference from the evidence of record in favor of the
prosecution." United States v. Blocker, 32 M.J. 281, 284 (CMA
1991).
The Evidence
The 90th Fighter Squadron deployed to Italy on October 4,
1995, with eight F-15E's and twelve 2-man crews. The mission
was "to maintain around the clock presence over [the] top of
Bosnia." There had been "multiple air strikes" on Bosnia the
week prior to the 90th's arrival. The 90th was flying combat
missions over Bosnia. Generally, they worked 6 days on and 2
days off. As the off-days rarely coincided with calendar
weekends, the off-days were known as "virtual weekends,"
comprised of "virtual Saturdays" and "virtual Sundays."
Appellant first met 1Lt Clemm at an Officers' Club in
Korea, in April or May 1995, while the 90th was in Korea on
temporary duty. She was interested in a position in his
squadron, and he approved her application. 1Lt Clemm arrived at
Elmendorf AFB about the time the squadron was deploying to
4
United States v. Rogers, No. 99-0838/AF
Italy. She joined the squadron in Italy on November 18, 1995,
about a month and a half into the operation.
Captain (Cpt) Laurie Lovrak also met 1Lt Clemm in Korea in
about May 1995. Cpt Lovrak became 1Lt Clemm's sponsor, in
effect, as she processed into the squadron, and Cpt Lovrak
preceeded 1Lt Clemm to Italy.
In Italy, Cpt Lovrak briefed 1Lt Clemm, among other things,
on who was who in the squadron and who to watch out for. As Cpt
Lovrak explained in her testimony:
Basically, I was pointing out for her
individuals. For example, happily married
aircrews on whom she could rely for
professional, platonic support. Also
pointing out to her members that might have
ulterior motives in seeking a close
friendship with her. I was concerned for
her welfare.
Cpt Lovrak warned 1Lt Clemm against hanging around and
drinking with the aircrews. As she testified:
I talked about my experiences in the fighter
squadrons and tried to point out to her that
the aircrews who drink together are
perceived as, you know, the good old boys,
but we're females in Ops [Operations], and
when we join them, we look like promiscuous
lushes and that's the way we're viewed,
especially if we're returning the
flirtations. There is a double standard
that is unfortunate, but I said don't allow
yourself to get in that position, you're
walking a dangerous line.
Cpt Lovrak knew in Korea that 1Lt Clemm was married.
Apparently 1Lt Clemm's marriage was failing, although no action
5
United States v. Rogers, No. 99-0838/AF
had been taken to institute divorce proceedings. In Italy, 1Lt
Clemm held herself out as single.
November 21, 1995--three days after 1Lt Clemm arrived in
country--was a virtual Saturday, and a Thanksgiving party was
organized for the entire squadron. The party was held at a
hotel near Caorle, Italy, well to the south of Aviano AB on the
Adriatic coast. This was the hotel in which the enlisted
members of the squadron were quartered, and in which the
officers had been quartered until just previously. At the time
of the party, the officers were newly quartered in a hotel in
the town of Pordenone, about an hour to an hour and a half by
car from Caorle, and much nearer to the air base.
After dinner, a large number of the enlisted personnel went
down to the beach for a bonfire, but some of the officers and
enlisted people remained behind in the hotel bar. It was at
this point that numerous members of the squadron began to notice
behavior that caused concern.
Cpt Lovrak noticed that, at dinner, 1Lt Clemm had been
drinking "excessively, and at the bar she continued to drink
excessively." This surprised Cpt Lovrak, "based on our
previous--my previous observations and our conversations." 1Lt
Clemm "became very physically flirtatious with aircrews at the
6
United States v. Rogers, No. 99-0838/AF
bar, particularly Major (Maj) Cloutier.2 Both of them were
behind the bar."
Cpt Lovrak painted the scene:
She [1Lt Clemm] had, at this point, removed
her outer sweater and Major--there was
probably room just barely for two people to
stand behind the bar, between the bar and
the back mirrors. She--Major Cloutier was
in back of her. She stood with sometimes a
drink in each hand or a drink in one hand, a
cigarette in the other, or a cigarette in
each hand, and pushed back against him,
pressed against him, turned around and had
her hands all over his chest. Major
Cloutier was making it apparent, I mean,
very blatant attempts to sidestep her and
get around her, but she would find her way
to that very same position.
Cpt Lovrak declined to join the party at the bonfire. As
she testified:
The situation was beginning to deteriorate.
It was obvious that people were growing very
disgusted with what was going on at the bar,
including enlisted personnel that were still
standing around. Major Moore and I
attempted to get Lieutenant Clemm to come
back to the hotel with us and she didn't
want to, so I left with Major Moore.
At some point, Maj Cloutier noticed that 1Lt Clemm was
behind the bar with appellant mixing drinks. Maj Cloutier
testified that "[t]hey were standing in very close proximity to
one another." Maj Cloutier "stayed there to monitor the
2
Maj Michael A. Cloutier was the deployed Director of Operations, or second
in command.
7
United States v. Rogers, No. 99-0838/AF
situation. It was an uncomfortable situation for me, because
there were still several maintenance [enlisted] individuals
present, as well as some of my officers." Maj Cloutier was not
alone in this concern.
Eventually, the remaining contingent at the bar began to
trickle down to the beach. Maj Hume3 had previously noticed that
appellant and 1Lt Clemm "had struck up a rapport during dinner,
is the best way to describe it." At the beach, he noticed that
"they came down to the bonfire together, significantly later
than most everyone else. . . . They were engaging people in
conversation like they were a couple together at a social
function, side-by-side, you know, talking to different people in
groups and that sort of thing." Hume testified that "[t]he
discussion at the bonfire was that the boss was drunk and we
didn't really want him to, you know, pickup on the Lieutenant
and make a mistake there."
When Cpt Lange4 noticed appellant and 1Lt Clemm at the
bonfire, he noticed that appellant "had his arm around
Lieutenant Clemm's waist." "[H]e had his arm down around her
lower waist and their bodies were, you know, they were hip-to-
hip." Cpt Lange "felt like there was a relationship being
3
Major David B. Hume was a Flight Commander and an Assistant Operations
Officer for the 90th.
4
Cpt Douglas E. Lange was the Squadron Electronic Warfare Officer.
8
United States v. Rogers, No. 99-0838/AF
developed there that was inappropriate," in that appellant was
the commander and she a subordinate. A number of the officers
were discussing the situation, and Cpt Lange hastened to offer
1Lt Clemm his coat, saying, "Lieutenant, you must be cold.
Here, take my coat." Appellant declined it, and they moved
closer to the fire. Cpt Lange was especially concerned because
there were about 20-25 enlisted personnel at the bonfire.
Maj Durtschi5 and Cpt Morgan6 both saw appellant with his
arm around 1Lt Clemm's waist at the bonfire. Cpt Morgan saw
them "coming out of the darkness." It struck him "that they
were walking very close to each other, together, bodies touching
pretty much all the way down, and [appellant] had his hand
tightly around her waist." Cpt Morgan was talking to Cpt Hughes7
at the time and exclaimed, "Hey, look at that." Cpt Morgan and
Cpt Hughes discussed which "one of us was going to have to tell
[appellant] to stop doing this in front of the enlisted troops."
Cpt Hughes, being a flight commander, was elected. He
approached appellant and pulled him away from 1Lt Clemm on the
5
Maj James W. Durtschi was an F-15E pilot and an Assistant Director of
Operations.
6
Cpt Eric Morgan was an F-15E pilot.
7
Cpt Steve D. Hughes was a Flight Commander and considered himself a very
good friend of appellant--"as close to a friend as a subordinate can be to a
commander." Appellant acknowledged that Cpt Hughes was a friend.
9
United States v. Rogers, No. 99-0838/AF
pretext of needing to talk to him about an operational matter.
Appellant was reluctant to separate and asked Cpt Hughes if it
"could wait." Cpt Hughes replied, "No, sir, I need to talk to
you about it now." Cpt Hughes kept appellant away from 1Lt
Clemm for about 20 or 30 minutes. As they were finishing the
discussion, Cpt Hughes told appellant, "Sir, I think you should
kind of keep your distance from Lieutenant Clemm around here,
several of the guys have noticed." Appellant acknowledged, in
his testimony, that Cpt Hughes had warned him on that occasion
that "[t]hat girl is bad news."
Eventually, the bonfire broke up and the officers prepared
to return to their quarters at Pordenone. There were nine
officers remaining, and two small vehicles. Appellant climbed
into the rear seat of his car with 1Lt Clemm.8 To Maj Cloutier's
knowledge, appellant had never sat in the back of his own
vehicle before. Cpt Lange was sufficiently concerned about what
he had seen that he tried to get into the back seat and get
between the two of them. But Maj Cloutier, who undertook to
drive, dissuaded him, saying that he would "handle the
situation."
Back at the Park Hotel in Pordenone, a group of officers
gathered in Maj Cloutier's room on the second floor. The first
8
The squadron had a small number of vehicles. One was assigned permanently
to appellant; the others were shared.
10
United States v. Rogers, No. 99-0838/AF
to arrive was 1Lt Clemm, whose room was directly across the
hall. She wanted to smoke a cigarette with Maj Cloutier.
Minutes later, they were joined by Majs Durtschi and Hume and
Cpts Morgan and Lange.
When Cpt Hughes got back to the hotel, he rode up on the
elevator with appellant. Cpt Hughes and appellant were the only
members of the squadron billeted on the fourth floor of the
hotel. After the third floor, Cpt Hughes and appellant were the
only people on the elevator. Once they were alone, Cpt Hughes
reiterated his earlier warning to appellant. He told him, "Sir,
you know I wouldn't--I'd just kind of go into your bed and not
hang around Lieutenant Clemm anymore." Appellant responded,
"Yeah, but she would look really good with my dick in her
mouth."9 Cpt Hughes advised him once more against seeing her.
Then he made sure that appellant went into his room and closed
the door. Finally, Cpt Hughes went into his room and went to
bed.
About that time, Maj Durtschi was in the hall outside Maj
Cloutier's room on the second floor. He heard 1Lt Clemm's phone
ring and saw her go into her room to answer it. Maj Durtschi
9
Regarding the elevator incident, appellant testified, "I do not remember
riding with Captain Hughes up the elevator. I have a lot of trust in Captain
Hughes. I have no reason to believe that he's lying. I have no explanation
for how that came about."
11
United States v. Rogers, No. 99-0838/AF
heard 1Lt Clemm say into the phone, "Yes, you can come down,
there are other guys here and we're in [Maj Cloutier's] room."
Moments after that conversation, appellant appeared with a
bottle of wine and two glasses. He nodded to everyone, sat down
with 1Lt Clemm, and poured a glass of wine for the lieutenant
and one for himself. Appellant and 1Lt Clemm stayed in the room
for 30-45 minutes and then left, one after the other. The
remaining officers commenced discussing, for about an hour, the
problem that was becoming apparent to them that evening.
The virtual weekend of November 21-22 marked a change in
the life of the 90th Fighter Squadron. Thereafter, many
officers began noticing that appellant and 1Lt Clemm were
spending a great deal of off-duty time together. Maj Hume
testified that, after that weekend, "[t]hey spent time together,
riding to and from work, and going to the gym, that sort of
thing." Maj Hume saw them drive to work together "maybe five or
six times," and he saw them leave to go to the gym "two or three
times." Maj Hume noted that the previous Intel Officer, a male,
did not ride to work with the commander.
Cpt Morgan saw them together on "numerous occasions, on a
pretty much daily basis." This included "[r]iding in the same
car to work quite a bit, apparently going to the gym to workout,
going to lunch, dinner, et cetera. Just on a fairly regular
basis." To Cpt Morgan, the quantum of their togetherness seemed
12
United States v. Rogers, No. 99-0838/AF
"improper . . . or unusual." Other officers noted similar
sightings.
Maj Moore10 described himself as a born-again Christian, a
fact purportedly well known in the squadron. He once observed a
degree of physical contact between appellant and 1Lt Clemm in
the gym, in which appellant was apparently helping the
lieutenant with chin-ups, that Maj Moore thought was
compromising and made him feel uncomfortable. So much so, that
he "tried to walk back into the room and make a joke of it to
kind of break the tension, because it was uncomfortable for me,
and I was in another room." Maj Moore also noticed that
appellant "wasn't as available as he normally was," that
occasionally he was "hard to find."
Maj Cloutier, the second in command, noticed the difference
acutely. He had been "joined at the hip" with his boss up until
the Thanksgiving party. After that, he was "filtered out of the
picture." Whereas before the party, Maj Cloutier rode back and
forth to work with appellant, after the party, Maj Cloutier "got
to drive home with other people." In the week after the
Thanksgiving party, Maj Cloutier was approached by several of
his officers "indicating . . . that they thought there was a
problem occurring between Lieutenant Clemm and [appellant]."
10
Maj William A. Moore was the Systems Operations Officer during the
deployment.
13
United States v. Rogers, No. 99-0838/AF
Maj Cloutier was trying "to quell the situation," and saw that
his "responsibility is to first take care of my boss." He hoped
that the Thanksgiving situation was simply a result of too much
alcohol, and that it was "just a minor occurrence at that time."
The next virtual weekend was November 29-30. As it
happened, on the afternoon of the 28th, an EA6 "took the
barrier" at Aviano and closed down the base. Two of the 90th's
planes returning from sorties with "live ordnance" were diverted
to a nearby, non-U.S.-operated base. Appellant assigned Majs
Cloutier and Moore to work the weekend and to manage the return
of the aircraft. Appellant wanted a maintenance crew to fly to
the other base to check the planes before they took off, but
weather prevented the helicopters from flying and kept the
maintenance crew at Aviano on the 29th. It was not until the
30th that the planes were recovered.
On the morning of the 29th, a virtual Saturday, Maj
Durtschi was off duty, walking in the city of Pordenone.
Appellant and 1Lt Clemm, in civilian clothes, were driving alone
in a vehicle and they "stopped [Maj Durtschi] on the sidewalk."
According to Maj Durtschi, the three of them "had a little chat,
14
United States v. Rogers, No. 99-0838/AF
and they said they were going to the base to do errands."11
At some point that day, Maj Cloutier called appellant on
his cell phone to update him on the progress of recovering the
two planes. Appellant indicated on the phone that "we are in
Maniago knife shopping." Maj Cloutier did not ask who "we"
was.12 Maj Moore also talked to appellant on the phone and
confirmed that appellant had said he was in Maniago.
Later that day, in the early evening, Maj Cloutier called
appellant back as it was beginning to be clear that they would
not be able to get their planes back that day. This time,
appellant said that "we are now up in the mountains in a bar."13
Again, Maj Cloutier did not inquire who "we" was.
When Maj Cloutier returned to the hotel that night, he
knocked loudly on 1Lt Clemm's door. She did not respond. He
repeated this the next morning when he was heading back to base
to try to recover the planes. Again, she did not answer. Maj
11
Appellant had originally been planning a solo trip to Rome that weekend,
but called it off the day before. Whether his decision not to go to Rome was
made before or after the aircraft diversion was not clarified in the record.
1Lt Clemm was also scheduled to go to Rome that weekend, but in conjunction
with an organized trip. She also cancelled her trip.
12
Appellant denied being in Maniago, saying that "we" were in Maniago, or
being with 1Lt Clemm at the time. He testified that he was driving alone and
he "could see a Maniago sign," a town a short distance from Aviano. He was
indicating that he did not have any idea where he was.
13
Appellant denied making this statement.
15
United States v. Rogers, No. 99-0838/AF
Cloutier did not see 1Lt Clemm or appellant around the squadron
or the hotel that entire virtual weekend.14
On the virtual Sunday of that weekend, Majs Cloutier and
Moore were again back at base working on recovering the
aircraft. Maj Cloutier again called appellant to apprise him of
the situation. First, he called appellant's hotel room and got
no answer. Then he tried appellant's cell phone and reached
him, at about 9 a.m. Appellant said that "it was such a
beautiful day, that we decided to drive back up into the
mountains again."15
On another occasion, identified only as occurring in "early
December," Maj Hume had evening duty and called appellant on his
cell phone regarding a maintenance matter. After the necessary
discussion was concluded, appellant said, "Hummer, I'm up here
in the mountains. I'm over an hour away from base, and I'm
looking at the stars with a beautiful woman and it's great."
Maj Hume noted that appellant "sounded pretty happy."16
By early December, rumors were rampant among the aircrews,
and the morale of many was plummeting. Maj Hume testified that
"the rumor mill was just out of control as far as, you know,
14
Maj Cloutier was 1Lt Clemm's immediate supervisor during the deployment.
15
Appellant testified that he was at a resort area that day, alone.
16
Appellant's explanation for the statement was, "I was alone in my car, on
the perimeter of the base when I made the statement, and it was jokingly."
16
United States v. Rogers, No. 99-0838/AF
'Have you seen them together?' 'What have they been doing
together,' that sort of thing. I mean it was the talk of the
town." Maj Hume added: "My observations were that people were
going to [appellant] trying to tell him to knock off the alleged
affair, and that they weren't well received." Cpt Lange
testified: "It surprised me that he would do something like this
that could have such an effect on his career. It really
generated a lack of trust in him, which I felt lowered morale in
the squadron." Cpt Morgan testified: "I'll say how I
personally felt that the morale went downhill. There's a large
trust factor that's associated with a commander and those that
follow on. And I felt that trust had been violated . . . ."
Cpt Hughes testified that morale "was at an all time low. I'd
never--actually, I haven't been in that many squadrons, but I'd
never seen a squadron, you know, that disbursed [sic],
especially when you have a mission like we had over there to
do." Maj17 Grahn characterized the morale as "definitely going
downhill fast." It bothered him because, "we were in a combat
situation and if guys were not paying attention to what they
were doing, somebody is going to get hurt pretty quick."
17
Maj James A. Grahn, a captain at the time of appellant's misconduct, was
Assistant Operations Officer and Squadron Weapons Officer for the 90th.
17
United States v. Rogers, No. 99-0838/AF
In addition to being concerned about what appellant was
doing to his career, the officers knew that the aircrews were
talking to their wives back at Elmendorf, and that the matter
could not long be contained.
December 4 did not fall on a virtual weekend, but that was
the day word was received in the squadron that appellant had
been selected for Colonel (O-6). Appellant was flying that
night, so Maj Cloutier organized the usual fighter pilot sort of
reception. As he explained:
I arranged for a fire truck to meet him. We
were going to douse him down when he got out
of the airplane. On his arrival, I had
everybody stand at--the entire maintenance
organization, plus the officers, standing at
attention. I had the--it was dark out, so
we had the big lights set up with the fire
truck right there. As the aircraft pulled
in, his aircraft pulled in, everybody went
to attention and gave him a salute as he
came in.
Champagne followed the dousing.
Walking back to the squadron area, Maj Hume asked
appellant, "Sir, are you doing Lieutenant Clemm?" Appellant
replied, "No, Hummer, I'm not doing her." But Maj Hume
testified that "he looked away from me and looked down with--the
best way that I can describe it is a shit-eating grin."
The promotion celebration picked up again later at an
establishment near the officers' hotel. On the way back to the
18
United States v. Rogers, No. 99-0838/AF
hotel after the party, the first of the car-walking incidents
occurred. See n. 1, supra.
Back at the hotel, the officers continued to try to protect
their commander. As Cpt Hughes explained it:
[I]t was Captain Grahn that was--we just
didn't really assign anybody, he just said
"I'm going to take [appellant] back to his
room." And Major Cloutier said, "I'll make
sure Lieutenant Clemm gets back to her
room," because the impression was throughout
the squadron that there was something going
on between the two of them. We were going
to make sure that they got back to their
rooms that night.
Up in appellant's room at about 2:30-3:00 a.m., Cpt Grahn
brought up the subject of appellant's relationship with 1Lt
Clemm. Appellant asked Cpt Grahn if he thought he was sleeping
with her. Cpt Grahn replied:
I said it really didn't matter what I
thought. I replied that my impression was
that he was sleeping with her, and the
impression was--really what I was trying to
get across to him, was the important thing,
that these days we've had a few commanders
that--I said we had a few commanders that
had been court-martialed or whatever, for
inappropriate behavior, inappropriate
contacts, and I wanted to make sure he knew
that I thought this situation was
inappropriate. I just wanted to let him
know, so he'd know that.
Asked what appellant's response was to his concerns about the
relationship, Cpt Grahn testified:
He never really told me that it was
appropriate or inappropriate, or that he was
19
United States v. Rogers, No. 99-0838/AF
sleeping with her or he wasn't sleeping with
her. It was more of a, you know, kind of
treating me like a mother hen, kind of
attitude.
At about that point, appellant's phone rang; it was 1Lt
Clemm. Appellant told her, "No, Cubes [Cpt Grahn] is here
giving me massive shit," and he ended the conversation quickly.
After they hung up, Cpt Grahn pointed out to appellant that that
was an example of what he was talking about, "a Lieutenant
calling an O-6 in his room at three o'clock in the morning."
Appellant brushed him off.18
Meanwhile, that night, a group of officers had gathered in
Cpt Walgren's room. Maj Cloutier was summoned, and the
conversation ranged from training issues and topics of the day
to appellant's relationship with 1Lt Clemm. The decision was
made to bring appellant into the conversation. The officers
felt that they needed to take care of their boss, that things
had gone far enough and they needed to confront him directly.
When appellant arrived, they confronted him with their
perceptions. Appellant reacted angrily and defensively. The
officers were shocked at his response, and he ultimately walked
18
Maj Grahn testified about another time the subject of appellant's
relationship with 1Lt Clemm came up between them. At one point, appellant
held up a book and said, "Hey, Cubes," and showed him the title. It was
"International Affairs." Maj Grahn got the joke.
20
United States v. Rogers, No. 99-0838/AF
out on the conversation. Relations between appellant and those
officers became exceedingly chilly from that point on.
The next day, December 5, brought two events of
consequence. First, Maj Durtschi rotated back to Elmendorf.
There he was confronted by Lieutenant Colonel (LtCol) Donisi,
who asked him "who had hooked up with Lieutenant Clemm." Maj
Durtschi "didn't answer right away," but ultimately he revealed
that it was appellant.
Second, concluding that confronting appellant had been
fruitless, Maj Cloutier decided to try to confront the other
party, 1Lt Clemm. He testified that, in a 5-minute
conversation, he warned her about the perceptions that had
arisen. 1Lt Clemm promptly told appellant that Maj Cloutier had
accused her of having an affair with appellant. Appellant was
not happy that Maj Cloutier had confronted 1Lt Clemm.
By December 6, relations between appellant and Maj Cloutier
were exceedingly icy. That evening after dinner, the two of
them had it out. Appellant announced that he was not pleased
with "any of the individuals that confronted me about this
situation," and that he was going "to make a few changes in this
squadron." Maj Cloutier reviewed the bidding; he explained "why
the perceptions are developing, what his actions were that
generated such things, and that we were trying nothing more than
21
United States v. Rogers, No. 99-0838/AF
to protect him." Apparently, the conversation was lengthy and
vehement, on both sides.
Ultimately, Maj Cloutier felt he had begun to get through
to appellant, and the two of them "settled back down from what
was a very tense situation, to more of a comfortable situation."
The conversation became "just a frank discussion." Eventually,
appellant handed Maj Cloutier a poker chip with the squadron's
emblem (the "Pair-O-Dice") on it. Appellant said to Maj
Cloutier, "Here, cash this in in five years, and I'll tell you
all about the relationship between the two of us [1Lt Clemm and
himself]."19
Relations between Maj Cloutier and appellant did not
improve, however. Maj Cloutier and others had additional
confrontations with appellant about the continuing relationship,
and there was an additional car-walking incident. Generally,
appellant would not even talk to Maj Cloutier, his second in
command.
Maj Cloutier was "very dejected" that he "could not get
through" to appellant. The situation was "eating [Maj Cloutier]
up," because he felt that "[he was] the one that [was]
responsible for taking care of the situation, and [he was] not
19
Coincidentally or not, the statute of limitations was 5 years. Art.
43(b)(1), UCMJ, 10 USC §843(b)(1). Appellant, as a commander, might be
expected to know that.
22
United States v. Rogers, No. 99-0838/AF
able to resolve the situation." Early in the morning of
December 15, after the second car-walking incident had occurred,
Maj Cloutier called LtCol Donisi at Elemdorf. He told LtCol
Donisi that he could no longer work for appellant, and he asked
LtCol Donisi to help him find a new job.
After concluding the phone call, at about 5:30-6:00 a.m.,
Maj Cloutier, in uniform, stepped out of his room into the hall
of the hotel to go to work. He noticed that 1Lt Clemm's door
across the hall was ajar and that her room key was lying on the
floor. Knocking and looking into the room, he saw that the bed
appeared not to have been slept in. Backing out of the room, he
saw 1Lt Clemm coming down the hall toward him. As he testified:
"She is in civilian attire, in her socks, with jeans and a T-
shirt, and her hair is still a mess, like she has just gotten
up."
Caught red-handed sneaking back to her room, 1Lt Clemm
confessed to Maj Cloutier that she was having an affair with
appellant.20 She expressed remorse about the relationship,
20
This admission on December 15, and the following one on December 16, were
initially suppressed by the military judge on confrontation and hearsay
grounds. Appellant had originally been charged with adultery, but after
these admissions were suppressed, the Government withdrew that charge.
Subsequently, 1Lt Clemm was called by the members as a court witness, under a
grant of testimonial immunity. She denied admitting an affair to Maj
Cloutier, and testified that the substance of these conversations was quite
different. Thereafter, the Government was permitted to introduce the
statements as prior inconsistent statements, for impeachment purposes,
accompanied by appropriate limiting instructions. Since the evidence was
admitted as a prior inconsistent statement, we have not considered Maj
23
United States v. Rogers, No. 99-0838/AF
mentioning that she had recently seen the officers' wives'
newsletter and read the portion written by appellant's wife; and
"she had felt badly about that." She pledged to Maj Cloutier
that she would talk to appellant about ending the relationship.
It was not until the next evening, December 16, that Maj
Cloutier had a chance to talk to 1Lt Clemm. As Maj Cloutier
testified:
I inquired, I said, "Well, how did it go?"
I said, "Did you have an opportunity to
speak with [appellant] today?" She said,
"Yes." I said, "Well, how did it go?" She
said, "Well, not too well." She said, "I
went up there last night to talk to him
about it, and I ended up sleeping with him
again."
Maj Cloutier said, "Julie, you've got to be kidding me."
1Lt Clemm responded, "Well, when I was leaving this morning, I
told him that this should. . . we probably need to knock this
off." However, she related that appellant replied to her that
he was "not willing to make the commitment not to have the
relationship anymore." 1Lt Clemm also indicated that she was
changing hotel rooms.
The next morning, December 17, Maj Cloutier discovered that
1Lt Clemm had moved up to the fourth floor, next door to
appellant's room. 1Lt Clemm had not coordinated the move with
Cloutier’s testimony for any other purpose, but rather have limited our
review of his testimony to 1Lt Clemm’s credibility as a witness.
24
United States v. Rogers, No. 99-0838/AF
the squadron-billeting officer; rather, she made her own
arrangements through the hotel staff. 1Lt Clemm would have been
well aware that Cpt Reesman, one of the pilots, was also the
billeting officer and that he made the room assignment for the
squadron, because she assisted Cpt Reesman in that capacity when
the officers moved into the hotel.21
Also on December 17, Cpt Hughes made another effort with
his friend, appellant. As Cpt Hughes explained the situation:
Things were obviously not going well in the
squadron. Here we were. The United Nations
troops were just coming into Bosnia. The
feeling at the time was that things could
flare up over the air responsibility at any
time. And there was a definite lack of
focus on the part of most--I'd say all the
aircrew, in dealing with the threat that was
perceived out there. That was directly
related to what was going on or perceived to
be going on, between the Commander and the
Intelligence Officer [1Lt Clemm].
Cpt Hughes continued:
Eventually we [Cpt Hughes and appellant]
went to the gym and we ended up back in his
room. It was eight thirty or nine. Went up
to have a couple of beers and talk about it.
I approached the subject with him, by saying
that I was worried about his career, which I
definitely was. I was worried about him as,
you know, his subordinate, and also as a
friend, and I was worried about the squadron
21
Cpt Reesman was "involved in the same ministry" as Maj Moore and, like Maj
Moore, did not take part in the drinking and partying activities of the
squadron. The significance of 1Lt Clemm's decision to bypass Cpt Reesman in
relocating her room was likely not lost on the members.
25
United States v. Rogers, No. 99-0838/AF
and what was going to happen to us, if this
continued.
So, that's how I approached the subject with
him. We talked--talked about various things
for two to three hours. Two thirds of it
was about what was going on in the squadron.
He never said that he had been sleeping with
Lieutenant Clemm. He never said that he
hadn't been sleeping with her. He asked me
what he thought I should do [sic]--he asked
me what I would do if I were him, to try to
correct the situation. And I told him that
I think--I told him I think Major Cloutier's
heart is in the right place, that he has the
best interest of the squadron in mind, that
those two should get together, talk about
this as Commander and DO, figure out how to
deal with the situation, and then deal with
it. Probably it would involve either
[appellant] or Lieutenant Clemm going back
to Alaska. And once that--they're apart,
then everything would probably defuse and
we'd go about our business.
Asked how appellant responded to the suggestion that one of
them go back to Alaska, Cpt Hughes testified: "Not very well.
He didn't like it, didn't like that option at all." Instead,
appellant blamed the entire situation on Maj Cloutier's
manipulations and deceit.
For Maj Cloutier, 1Lt Clemm's move to the fourth floor was
the straw that broke the camel's back. With appellant and 1Lt
Clemm "now rooming side-by-side with one another," Maj Cloutier
felt "that it's going to break loose," that he himself "will
receive retribution for not doing [his] job of reporting it."
Maj Cloutier called a meeting of the officers "closest
26
United States v. Rogers, No. 99-0838/AF
associated with what was going on, because during this entire
time, we had tried to keep it very, very quiet." Maj Cloutier
told the officers that he was "completely out of ideas on how to
handle this situation, and that [he] was considering going
forward with the allegations."
At the conclusion of the meeting, Maj Cloutier decided to
go forward with the allegations. He contacted the appropriate
higher authorities, and on December 18, presented the
information in his possession. Appellant was relieved of his
command on December 19, 1995, pending an investigation into
allegations of engaging in "an unprofessional relationship."
But the saga does not end here.
Maj Moore was detailed to assist appellant in moving out of
the hotel immediately, and to escort him on the plane to
Elmendorf. Maj Moore described the conversation on the
airplane:
He offered bits and pieces of information.
Some of it was that she [1Lt Clemm] had some
affairs or something in the past. The
conversations were broken because he was,
you know, under a lot of thought. He said
that she'd had an affair with Klute[22] at one
point, it was--Major Cloutier, excuse me.
22
"Klute" was apparently Maj Cloutier's call sign. There is no assertion,
even from 1Lt Clemm, that she had had an affair with Maj Cloutier. Given the
short duration that she knew Maj Cloutier, it is inconceivable on this record
that this particular assertion, if indeed accurately related, was correct.
27
United States v. Rogers, No. 99-0838/AF
Asked whether appellant had said anything regarding the
squadron, Maj Moore continued:
Well, he did make a comment that kind of--I
wouldn't say it alarmed me, but he said he
didn't know how deep he and Donna would have
to go to right this or to--how deep he would
have [to] dig into the squadron affairs.
Something about this may be "me and Julie
against the whole Air Force by the time it's
all over." He told me the results would be
earth-shattering.[23]
Cpt Lovrak had departed Italy on December 2 and returned to
Elmendorf. She was called back to Italy to escort 1Lt Clemm
back to Elmendorf. After they arrived back in Alaska, 1Lt Clemm
called Cpt Lovrak "about ten to 12 times. She initiated the
phone calls." According to Cpt Lovrak, 1Lt Clemm
often called late at night, but the one
occasion she called me very late, and very
distraught. . . . She was crying. . . .
She talked about the, you know, the sort of
--some of the legal issues that were
pending, without being very specific.
Talked about her arguments with her parents,
and was very quiet for a moment. Then she
blurted--she blurted out, "You warned me
about Major Cloutier, but you didn't warn me
about [appellant].
Regarding the reference to appellant, Cpt Lovrak testified,
"It was--boy, it was one of those statements that is so pregnant
23
Maj Moore was asked about another conversation he had had with appellant at
some point in the deployment. The O.J. Simpson verdict had been announced,
and appellant asked Maj Moore if he believed "God viewed all sin as equal in
his eyes." Maj Moore responded, "Yes." Appellant continued, asking "whether
or not, for example, is murder and adultery on equal basis in God's eyes[?]"
Maj Moore responded affirmatively, that he believed it was.
28
United States v. Rogers, No. 99-0838/AF
with meaning." Cpt Lovrak did not follow up and pursue the
statement, however, because she had been advised by the Legal
Office "to make a wide berth around any specifics regarding this
case." She had been instructed not to ask questions, but to
"change the subject" and "move on," and she did.
Regarding the reference to Maj Cloutier, Cpt Lovrak
clarified that she had not, in fact, warned 1Lt Clemm about him.
She told 1Lt Clemm that "Major Cloutier loves to party and loves
women, but I never cautioned her, you know, that he would come
on to her. I would never have expected him to come on to
Lieutenant Clemm, and she never gave me any indication that he
had."
Issue I
Was the Specification Vague?
Appellant contends that the specification of Charge II,
alleging conduct unbecoming an officer, was vague in that it
"failed to identify a relevant custom or regulation which
prohibits relationships between officers."
In its entirety, Article 133, UCMJ, 10 USC § 933, provides:
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.
29
United States v. Rogers, No. 99-0838/AF
Thus, by its terms, Article 133 contains no requirement of proof
of violation of a service regulation or custom. Reference to
para. 59, Part IV, Manual for Courts-Martial, United States
(1995 ed.)(conduct unbecoming an officer), in effect at the time
of the underlying conduct at bar, produces a similar
conclusion.24
Indeed, in the instant case, the specification of Charge II
did not allege that appellant had violated a service regulation
or custom. It alleged:
In that LIEUTENANT COLONEL SHELLEY S.
ROGERS, United States Air Force, 90th
Fighter Squadron, at or near Pordenone,
Italy, did, between on or about 20 November
1995 and on or about 18 December 1995,
wrongfully and willfully develop an
unprofessional relationship of inappropriate
familiarity with First Lieutenant Julie
Clemm, a subordinate under his command,
which conduct under the circumstances was
unbecoming an officer and a gentleman.
Tailoring his instructions on the elements to the
allegations, the military judge instructed the members as
follows:
24
In contrast, a charge of "fraternization" (the improper association of an
officer and an enlisted servicemember) under Article 134 requires proof of
violation of a "custom of the accused's service that officers shall not
fraternize with enlisted members on terms of military equality." Para. 83,
Part IV, Manual for Courts-Martial, United States (1995 ed.); see generally
United States v. Johanns, 20 M.J. 155 (CMA 1985). Similarly, a charge of
violating a lawful regulation under Article 92, UCMJ, 10 USC § 892, requires
proof of a violation of a "punitive" regulation. See United States v.
Shavrnoch, 49 M.J. 334, 336 (1998).
30
United States v. Rogers, No. 99-0838/AF
In the Specification of Charge II, the
accused is charged with the offense of
conduct unbecoming an officer and a
gentleman. In order to find the accused
guilty of this offense, you must be
convinced by legal and competent evidence,
beyond a reasonable doubt, that:
One, between on or about 20 November 1995
and 18 December 1995, at or near Pordenone,
Italy, the accused wrongfully and willfully
developed an unprofessional relationship of
inappropriate familiarity with First
Lieutenant Julie Clemm.
Second, First Lieutenant Julie Clemm was a
subordinate under the command of the
accused.
And third, under the circumstances, the
accused['s] conduct [was] unbecoming an
officer and a gentleman.
Further, the military judge defined certain key terms and
phrases as follows:
"Conduct unbecoming an officer and a
gentleman" means behavior in an official
capacity, which in dishonoring or disgracing
the individual as a commissioned officer,
seriously distracts or detracts from his
character as a gentleman, or behavior in an
unofficial or private capacity, which in
dishonoring or disgracing the individual
personally, seriously detracts from his
standing as a commissioned officer.
"Unbecoming conduct" means behavior more
serious than slight, and of a material and
pronounced character. It means conduct
morally unfitting and unworthy, rather than
merely inappropriate or unsuitable,
misbehavior which is more than opposed to
good taste or propriety.
31
United States v. Rogers, No. 99-0838/AF
"Unprofessional relationships" are those
personal relationships between officers,
which result in inappropriate familiarity or
create the appearance of favoritism,
preferential treatment, or impropriety.
Unprofessional relationships create the
appearance that personal friendships and
preferences are more important than
individual performance and contribution to
the mission. The term "unprofessional
relationships" refers not to any one
specific occurrence, but to the totality of
the circumstances. Not all contact or
association between and [sic] a superior
officer and a subordinate officer is an
offense. Whether the contact or association
in question is an offense, depends upon the
surrounding circumstances.
In Parker v. Levy, 417 U.S. 733, 752, 757-58 (1974),
Article 133 survived a claim that it was "'void for vagueness'
under the Due Process Clause of the Fifth Amendment and
overbroad in violation of the First Amendment." The Supreme
Court noted that our Court and other military courts had
"narrowed the very broad reach of the literal language of the
articles [Arts. 133 and 134], and at the same time ha[d]
supplied considerable specificity by way of examples of the
conduct which they cover." Id. at 754. The Court cited
approvingly our invocation of Colonel Winthrop's venerable
observation on conduct unbecoming an officer:
To constitute therefore the conduct here
denounced, the act which forms the basis of
the charge must have a double significance
and effect. Though it need not amount to a
32
United States v. Rogers, No. 99-0838/AF
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.
William Winthrop, Military Law and Precedents 711-12 (2d ed.
1920 Reprint); see 417 U.S. at 753-54.
The Supreme Court acknowledged, however, that "[i]t would
be idle to pretend that there are not areas within the general
confines of the articles' language which have been left vague
despite these narrowing constructions." Id. at 754. Where
"areas of uncertainty as to the coverage of the articles . . .
remain[ed]," the Court added that "further content may be
supplied . . . by less formalized custom and usage." Id.
(emphasis added). Nothing in the opinion intimated that proof
of a custom or usage was a requirement.
On the other hand, the Supreme Court noted "there is a
substantial range of conduct to which both articles clearly
apply without vagueness or imprecision." Id. And the Court
made it clear that an officer charged with an Article 133
offense must have fair notice that his or her conduct was
punishable. 417 U.S. at 755-57. Although there have been
occasional hints by some judges of our Court that proof of a
service custom or regulation may be a requirement of Article 133
33
United States v. Rogers, No. 99-0838/AF
prosecutions generally, e.g., United States v. Kroop, 38 M.J. 470,
473 (CMA 1993), that view, as then-Chief Judge Sullivan noted,
"has not commanded a majority of this Court," with the possible
exception of officer-enlisted "fraternization" cases charged
under Article 133, instead of Article 134. United States v.
Boyett, 42 M.J. 150, 159 (1995)(Sullivan, C.J., concurring in the
result).
In the instant case, there is no question that appellant
was on notice of what sorts of relationships were impermissible.
Albeit it was an apparently nonpunitive regulation, an Air Force
Instruction in effect at the time of the charged conduct
proscribed, and gave examples of, unprofessional relationships.
It stated:
Relationships in the Same Chain of Command,
the Same Unit, or a Closely Related Unit.
Personal relationships between members of
different grades or positions within an
organization or chain of command can easily
become unprofessional. Dating and
indebtedness commonly get out of hand
because they appear to create favoritism or
partiality. Consequently, senior members
should not date or become personally
obligated or indebted to junior members.
This is also because seniors have, or are
perceived to have, authority to influence
the junior member's career.[25]
Paragraph A1.3.1., AFI 36-2909 (20 Feb. 1995)(emphasis added).
25
We decline to attempt to walk a line between "dating" and the evidence
adduced at appellant's court-martial.
34
United States v. Rogers, No. 99-0838/AF
Further, as commander, appellant had occasion to both
discuss and apply the standards relating to personal
relationships. Cpt Lovrak testified that she and appellant had
had "several" professional discussions on the subject, even
before the deployment to Italy, particularly concerning a
relationship that involved a senior noncommissioned officer.
Appellant acknowledged in his testimony having "many discussions
of professionalism" with Cpt Lovrak, "each one may have been
related to another act or incident." Appellant also had to deal
with at least one relationship matter in Italy, involving
enlisted members within 1Lt Clemm's intelligence section.
In sum, the granted issue asks whether the specification
was unconstitutionally vague in failing to allege violation of a
regulation or custom of the service which forbade a relationship
such as his and 1Lt Clemm's. The Constitution, however, does
not require that a regulation or custom of the service be
established.
Obviously, there will be many gradations of relationships
and associations between servicemembers that will not put the
parties fairly on notice that the conduct might be
inappropriate. However, as the Supreme Court suggested in
Parker v. Levy, supra, there is certain conduct to which Article
133 "clearly appl[ies] without vagueness or imprecision." 417
U.S. at 754. Under the circumstances of this case, we are
35
United States v. Rogers, No. 99-0838/AF
satisfied that appellant's conduct falls into this latter
category. See United States v. Frazier, 34 M.J. 194 (CMA 1992).
Any officer would be on notice that this type of behavior was
punishable. We hold that the granted issue is without merit.
Issue II
Failure of Specification to Identify Acts Which
Constituted the Unprofessional Relationship
Appellant's misperception of this issue represents more
than a matter of mere semantics. The conduct appellant was
charged with was "wrongfully and willfully develop[ing] an
unprofessional relationship of inappropriate familiarity." The
"acts" appellant refers to did not "constitute" the
relationship, they evidenced it.
In regard to the evidence of the "acts" that was to be
proffered at trial, appellant was well on notice. A Bill of
Particulars, produced in limine by the prosecution, outlined the
core events and evidentiary matters the Government intended to
introduce. Although necessarily abbreviated, the fullness of
their significance could hardly have failed to resonate in that
the defense had previously been provided a copy of the 4-volume
Article 32, UCMJ, 10 USC § 832, Investigating Officer's Report.
This document contained both the sworn pretrial statements and
36
United States v. Rogers, No. 99-0838/AF
the summarized or verbatim testimony of all of the Government's
significant witnesses.
Taken in conjunction with the Bill of Particulars, the
Government had disclosed, in essence, all of the evidence it
possessed in order to prove the nature of the relationship.
This granted issue is without merit.
Issue III
Legal Sufficiency of Evidence
As previously indicated, it is not our function to reweigh
evidence and determine guilt or innocence anew. Rather, our
responsibility is to ascertain whether the finder of fact had a
legally sufficient basis to reach the conclusion it did.
Indeed, as pertained to virtually every evidentiary matter
presented by the prosecution, the defense either denied the act
or statement, or presented it with a different content and
meaning. The court members,26 however, apparently found the
credibility of appellant and 1Lt Clemm to be insufficient even
to raise a reasonable doubt as to guilt. We, in turn, are
satisfied that the evidence presented by the prosecution was
enough that "a reasonable factfinder could have found all the
26
This particular panel was comprised of seven colonels and a lieutenant
colonel, all on loan from other installations and commands.
37
United States v. Rogers, No. 99-0838/AF
essential elements beyond a reasonable doubt." United States v.
Turner, supra; Jackson v. Virginia, supra.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
38
United States v. Rogers, 99-0838/AF
SULLIVAN, Judge (concurring):
I agree with the majority’s resolution of the granted issues.
Long ago, in my separate opinion in United States v. Boyett, 42
M.J. 150, 160-61 (1995) (Sullivan, J., concurring in the result), I
concluded that a custom or regulation was not constitutionally
required for a valid prosecution under Article 133, UCMJ. I
said:
III
FAIR NOTICE THAT CONDUCT VIOLATED
ARTICLE 133
47. The second issue in this case is
whether appellant was provided fair notice
that his conduct was a crime under Article
133. Clearly, Parker v. Levy, [417 U.S.]
at 755-57, 94 S. Ct. at 2561-62, provides
that at least constructive notice of the
criminality of a servicemember’s conduct
is required by the Due Process Clause of
the Fifth Amendment. Such notice can be
shown by proof of an authoritative court
decision including such conduct as
punishable under Article 133; a provision
of the Manual for Courts-Martial
explaining conduct as a violation of
Article 133; or a custom of the service
prohibiting such conduct or any other
circumstance which would establish that a
servicemember would have no reasonable
doubt that his conduct was unbecoming an
officer. Id. In United States v.
Johanns, 20 M.J. at 161, this Court simply
held that Captain Johanns in 1982 did not
have adequate notice from any of the above
sources or anywhere else that his conduct
was proscribed under Article 133.
United States v. Rogers, 99-0838/AF
Those circumstances exist in this case, where appellant’s
conduct with a female subordinate officer clearly undermined his
status as head of his squadron. See United States v. Frazier, 34
M.J. 194 (CMA 1992) (officer undermined his ability to lead by open
and overly familiar relationship with enlisted man’s wife). An
obvious leadership failure existed in this case, which was not
only observed by subordinates but was expressly called to
appellant’s attention by them. Accordingly, appellant’s
prosecution for this Article 133, UCMJ, offense was
constitutionally proper.
2
United States v. Rogers, No. 99-0838
EFFRON, Judge (concurring in part and dissenting in part):
For the reasons set forth below, I agree that the Charge,
in light of the bill of particulars, was sufficient to state an
offense and provide fair warning of the criminality of the
conduct at issue. I do not agree that the evidence was
sufficient to prove the offense alleged.
I. Legal Sufficiency of the Charge
Article 133, UCMJ, 10 USC § 933, proscribes "conduct
unbecoming an officer and a gentleman." The Supreme Court, in
Parker v. Levy, 417 U.S. 733, 756 (1974), indicated that such a
statute might be void for vagueness under the standards
applicable to criminal offenses in the civilian sector. The
statute could be sustained in the military context, however, so
long as the person had received "fair warning of the
criminality" of his or her conduct. The Court relied in
significant part on the decisions of this Court and the language
in the Manual for Courts-Martial that had "narrowed the very
broad reach of the literal language of the articles, and at the
same time ha[d] supplied considerable specificity by way of
examples of the conduct which they cover." Id. at 753-54. The
Court also noted that "further content may be supplied . . . by
less formalized custom and usage." Id. at 754. The guidance in
the Manual for Courts-Martial plays a vital role in the
United States v. Rogers, No. 99-0838/AF
assessment of the legality of the Charge. With respect to the
offense of conduct unbecoming an officer and a gentleman under
Article 133, the Manual notes:
There are certain moral attributes common to
the ideal officer and the perfect gentleman
. . . . Not everyone is or can be expected
to meet unrealistically high moral
standards, but there is a limit of tolerance
based on customs of the service and military
necessity below which the personal standards
of an officer, cadet, or midshipman cannot
fall without seriously compromising the
person's standing as an officer, cadet, or
midshipman or the person's character as a
gentleman. This article prohibits conduct
by a commissioned officer, cadet, or
midshipman which, taking all the
circumstances into consideration, is thus
compromising.
Para. 59c(2), Part IV, Manual for Courts-Martial, United States
(2000 ed.). The Manual reflects traditional military law.
Winthrop, in his authoritative treatise, noted with respect to
an earlier version of the statute:
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.
William Winthrop, Military Law and Precedents 711-12 (2d ed.
1920 Reprint) (footnote omitted).
2
United States v. Rogers, No. 99-0838/AF
The comments by the President in the Manual and Winthrop in
his treatise reflect two tiers of disciplinary infractions under
military law. The first tier includes matters that amount to
flaws or deficiencies in performance or conduct that are not
crimes, either in the traditional or uniquely military sense.
See generally United States v. Wheatley, 10 USCMA 537, 28 CMR
103 (1959)(careless or thoughtless act of officer not
necessarily criminal). Infractions not amounting to UCMJ
offenses may be addressed through administrative measures, such
as those listed in RCM 306(c)(2), Manual, supra, and the
Discussion thereunder. The second tier includes matters that
not only involve deficiencies in performance or conduct, but
which also constitute offenses under the UCMJ. These matters
can be dealt with either under the UCMJ or through
administrative actions. See RCM 306(c)(1)-(5), 401-04, and 407.
The Manual expressly addresses the subject of officer-
enlisted relationships in paragraph 83, Part IV
(Fraternization), providing a basis for differentiating between
those relationships that are punishable under the UCMJ and those
that are either permissible or that may be addressed solely
through administrative measures. The Manual, however, does not
provide similar guidance with respect to the relationships
between officers of different grades.
3
United States v. Rogers, No. 99-0838/AF
United States v. Kroop, 38 M.J. 470 (CMA 1993), is our most
recent precedent governing relationships between officers of
different ranks. Kroop involved a charge of "undue familiarity"
and "excessive social contacts" between a married male
lieutenant colonel (LtCol) and a married female second
lieutenant detailed to his squadron. LtCol Kroop pled guilty to
the Charge but challenged the findings on appeal. The Court of
Military Review affirmed the findings only insofar as the Charge
pertained to adultery and set aside that portion of the findings
concerning "undue familiarity" and "excessive social contacts."
34 M.J. at 634-36. The Judge Advocate General certified the case
to our Court.
The opinion of Senior Judge Everett, joined by Judge Wiss,
addressed two aspects of the Charge. First, it stated that
"[i]n the absence of further allegations as to the details of
the conduct involved or the service custom violated, we are
concerned about the imprecision of this language." 38 M.J. at
472. Second, it noted that in 1989, at the time of the charged
conduct, "no custom of that service" and "no Air Force
Regulation prohibited such conduct." Id. at 473. Judges
Everett and Wiss concluded that neither Article 133 nor Article
134 was violated by "private sexual intercourse between an
officer and his or her superior, unaccompanied by any element of
harassment or coercion on the part of the superior and any
4
United States v. Rogers, No. 99-0838/AF
allegation of violation of an applicable custom or regulation .
. . ." Id.
Chief Judge Sullivan concurred in part and in the result,
limiting his views to agreement with a comment by Senior Judge
Everett that the language excised by the Court of Military
Review could be viewed as "surplusage" in the context of an
adultery charge. Id.
Judge Gierke, in dissent, stated that the allegation of
"undue familiarity" and "excessive social contacts" with a
married female servicemember was sufficient to state an offense
under Article 133. He noted: (1) the case involved a guilty
plea in which the accused had not challenged the sufficiency of
the specification at trial; (2) under those circumstances, the
standard of review as to legal sufficiency was lower on appeal
than in a case where the specification had been challenged at
trial; and (3) the accused had not asked for a bill of
particulars or in any way asserted at trial that the
specification was too vague. Id. at 474-75.
Judge Cox expressed agreement "with almost everything" in
Judge Gierke's dissent, but he concurred in the result because
he viewed the decision of the Court of Military Review as
doubting that "this particular conduct was of such a character
as to rise to conduct unbecoming an officer." Id. at 473.
5
United States v. Rogers, No. 99-0838/AF
In view of the split opinions in Kroop and the fact that it
was viewed as involving private behavior, it does not provide a
precedent that would clearly govern the present case. At a
minimum, Kroop suggests that pleading and proof of a custom or
regulation, or production of a bill of particulars, may be
sufficient to rebuff a challenge to such a specification in a
contested case.
Subsequent to our decision in Kroop, the Air Force revised
Instruction (AFI) 36-2909, entitled "Fraternization and
Professional Relationships," effective February 20, 1995. The
parties to the present case agree that the 1995 version of the
Instruction was non-punitive, in the sense that violations were
not punishable under Article 92, UCMJ, 10 USC § 892 (failure to
obey a lawful order or regulation).
With respect to officers, the 1995 Instruction defined
"[u]nprofessional [r]elationships" as "[p]ersonal relationships
between officers . . . which result in inappropriate familiarity
or create the appearance of favoritism, preferential treatment,
or impropriety." Para. A1.1.2. With respect to officers within
the same chain of command, unit, or closely related unit, the
Instruction noted:
Personal relationships between members of
different grades or positions within an
organization or chain of command can easily
become unprofessional. Dating and
indebtedness commonly get out of hand
6
United States v. Rogers, No. 99-0838/AF
because they appear to create favoritism or
partiality. Consequently, senior members
should not date or become personally
obligated or indebted to junior members.
This is also because seniors have, or are
perceived to have, authority to influence
the junior member's career.
Para. A1.3.1. The Instruction also defined fraternization
(officer-enlisted relationships) and noted that fraternization
was subject to criminal prosecution under the UCMJ as service
discrediting and prejudicial to good order and discipline.
Para. A1.1.3. No such language was included with respect to
unprofessional relationships between officers; rather, the
Instruction simply noted that such relationships "become a
matter of official concern." Para. A1.3.2.1
The current version of AFI 2909 (1 May 1999), issued
subsequent to the events at issue in this appeal, contains a
more detailed description of the nature of unprofessional
relationships. In addition, the new Instruction indicates that
commanders will use "a stepped approach to enforcement of the
policy" regarding unprofessional relationships. Id. (Summary of
1
Paragraph 2 of the Instruction directed commanders to take the following
"corrective action" with respect to relationships having an adverse effect on
their units:
2.1 Consider administrative actions . . . .
2.2 Consider punitive action, when appropriate,
especially for favoritism, partiality, or misuse of
grade or position, which may be violations of the
Uniform Code of Military Justice (UCMJ).
Fraternization is a violation of the UCMJ.
7
United States v. Rogers, No. 99-0838/AF
Revisions). Under the stepped approach, a commander first will
issue an order "to cease an unprofessional relationship"; then,
if the officer does not adhere to the order, the commander will
consider "prosecution under the UCMJ for violation of the
order." Para. 4. The two-step approach is reinforced in
paragraph 8 of the Instruction, "Actions in Response to
Unprofessional Relationships," which provides that corrective
action
should normally be the least severe
necessary to terminate the unprofessional
aspects of the relationship. The full
spectrum of administrative actions is
available and should be considered. . . .
Experience has shown that counseling is
often an effective first step in curtailing
unprofessional relationships. . . . An order
to terminate a relationship, or the
offensive portion of a relationship, can and
should be given whenever it is apparent that
lesser administrative action may not be
effective. Officers or enlisted members who
violate such orders are subject to action
under the UCMJ for violation of the order.
This current Instruction reflects a recognition by the Air
Force that it is difficult to provide a definitive set of rules
governing the wide variety of personal interactions between
officers of different ranks, and that an order can serve to
focus the attention of an officer on the limits of his or her
relationships with particular subordinates.
8
United States v. Rogers, No. 99-0838/AF
In a case such as this, where there has been a bill of
particulars, it is not necessary to address the question of
whether the specification, standing alone, provides sufficient
notice that the conduct in question was proscribed by Article
133. Instead, it is appropriate to look at the bill of
particulars in conjunction with the guidance in the Instruction,
the Manual, case law, or custom.
During the initial stages of the trial, the defense moved
to dismiss the specification at issue on the grounds that it
failed to state an offense. The Government responded by
furnishing a bill of particulars.2
2
The bill of particulars identified the following circumstances in support of
the Charge:
1. Testimony surrounding the 21 November 1995
Thanksgiving party in Caorle, Italy. This includes
the ride back to Pordenone, Italy, statements made by
the accused in the elevator to Captain Hughes and the
subsequent gathering in Major Cloutier's hotel room.
2. Observations in November and December 1995
from members of the squadron concerning frequency of
off-duty contacts between the accused and his
subordinate Intelligence Officer, 1Lt [First
Lieutenant] Clemm.
3. Testimony that the accused and 1Lt Clemm
spoke to each other on the telephone from their
respective hotel rooms in the middle of the night on
more than one occasion.
4. Lt Clemm's statements to Major Cloutier
admitting to having an affair with the accused and
her inability to stop the affair.
5. Testimony from various squadron personnel
concerning their perceptions of the accused and 1Lt
Clemm as they pertain to confrontations with the
accused and his reactions to their confrontations.
6. Statements that 1Lt Clemm made to Captain
Lovrak that "you warned me about [other aircrew] but
you didn't warn me about LtCol Rogers."
7. Statements made by the accused to Major
Cloutier concerning the "dice poker chip."
9
United States v. Rogers, No. 99-0838/AF
The centerpiece of the bill of particulars was item 4, the
allegation that 1Lt Clemm admitted to Major Cloutier that she
was having an affair with appellant. The balance of the bill of
particulars involved circumstantial evidence from which
inferences could be drawn corroborating the existence of an
affair and its negative impact on the command.
The bill of particulars was more than sufficient to provide
adequate notice of conduct unbecoming an officer and a
gentleman. Whatever limits there may be on the reach of Article
133 into discreet, private conduct, the circumstances referenced
in the bill of particulars were well within the range of conduct
proscribed by military law. I am confident that no field grade
officer holding a position of command in any of the armed forces
could have reasonably believed in 1995 that he or she would not
risk a court-martial for having an affair with a subordinate
junior officer under the circumstances described in the bill of
particulars.
8. Statements by the accused while on his
cellular phone to Major Hume that he was in [the]
mountains with a beautiful woman, and a statement to
Major Cloutier that "we" are in the mountains.
9. Major Durtchi's observations of the accused
and 1Lt Clemm riding in a car together on a non-duty
day in civilian clothes.
10. Failure of the accused to advise 1Lt Clemm
to have her room changed again when he discovered
that she had moved into the room next to his.
10
United States v. Rogers, No. 99-0838/AF
II. Legal Sufficiency of the Evidence
A bill of particulars may provide the basis for sustaining
the legal sufficiency of a charge, but it does not address the
legal sufficiency of the evidence actually introduced on the
merits. At trial, 1Lt Clemm denied that she had been involved
in an affair with appellant, and she denied making a statement
to Major Cloutier admitting to such an affair. As a result, the
only evidence of her statement was Major's Cloutier's assertion
that 1Lt Clemm had, in fact, made such an admission.
The military judge ruled that Major Cloutier's recollection
of her statement constituted hearsay that was inadmissible on
the merits of the Charge, although he permitted it to be used,
under proper limiting instructions, as a prior inconsistent
statement to impeach 1Lt Clemm's trial testimony denying the
affair. See Mil. R. Evid. 613, Manual, supra. Because it was
excluded as substantive evidence on the merits, her statement
may not be considered during appellate review of the question
whether the evidence was legally sufficient to support the
charged offense.
Absent her admission, the remainder of the prosecution's
case consisted of a variety of incidental touchings, social
encounters, warnings to appellant about the impact of his
interactions with 1Lt Clemm on the discipline and morale of the
unit, and appellant's actions in response to those expressions
11
United States v. Rogers, No. 99-0838/AF
of concern. Without her admissions, the evidence reflected the
speculation of others as to the possibility of an inappropriate
relationship, but did not provide a legally sufficient basis
upon which a reasonable factfinder could have conluded, beyond a
reasonable doubt, that appellant's conduct with 1Lt Clemm
crossed the line from permissible interaction to an illegal
unprofessional relationship of inappropriate familiarity. See
United States v. Turner, 25 M.J. 324 (CMA 1987), citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
That conclusion, however, does not mean that the Air Force
was precluded from holding appellant accountable for his
conduct. Aside from the plethora of administrative actions that
could have been taken with respect to matters such as efficiency
reports, assignments, and promotions, appellant could have been
held accountable in a court-martial for the offense of
dereliction of duty under Article 92 or as a related charge
under Article 133. The evidence makes abundantly clear that,
from the outset of appellant's interactions with 1Lt Clemm,
members of his command repeatedly called his attention -- as
squadron leader -- to the deleterious impact of these
interactions on the good order and discipline of the unit.
Although these admonitions were brought to appellant's attention
with increasing frequency and bluntness, he not only chose to
ignore these expressions of concern -- but he also willfully
12
United States v. Rogers, No. 99-0838/AF
engaged in conduct that further undermined the morale of the
unit, a unit actively engaged in combat operations. As squadron
leader, he had a particular responsibility to set an example.
Instead of conducting himself in a manner that would ensure that
his interactions with 1Lt Clemm were limited to those necessary
for their professional relationship, he repeatedly placed
himself in situations which affected morale within the unit and
which caused reasonable concern among the officers and enlisted
members of his unit. Rather than making it clear to his
subordinates that his relationship with 1Lt Clemm was confined
to professional interaction, he inflamed the situation through
comments suggesting that he viewed her as a sexual object rather
than as a military officer.
This is not a case of an isolated remark in a private
conversation, nor does it involve a stray, careless or
thoughtless act. It also does not involve a relationship in
which the parties endeavored to act with discretion and
circumspection. The case before us involves a commanding
officer who -- knowing of concerns within his unit about his
relationship with a subordinate -- repeatedly acted with
flagrant disregard of the consequences upon his unit that would
result from his remarks and his visible interactions with that
subordinate.
13
United States v. Rogers, No. 99-0838/AF
Under the circumstances of this case, I would have had no
difficulty in concluding that a reasonable fact-finder could
have found that appellant did not conduct himself as an officer
and a gentleman when he permitted the degradation of the morale,
good order, and discipline of his unit by taking actions that
further aggravated the reasonable concerns of members of his
unit and that had been repeatedly called to his attention.
Given the way the case was charged and prosecuted, however, it
would be difficult to hold that a dereliction charge would be
fairly embraced within the Charge. In light of the Government's
decision to center its prosecution on the existence of an
inappropriate relationship rather than on appellant's
dereliction of duty, I would dismiss the Charge and remand the
case for a rehearing on sentence.
14