(concurring):
29. The lead opinion reflects the views that I have long held, see United States v. Johanns, 20 MJ 155, 161 (CMA) (Cox, J., concurring in part, concurring in the result in part), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); United States v. Wales, 31 MJ 301, 310 (CMA 1990) (Cox, J., dissenting in part and concurring in the result), and I fully concur. Naturally, any conduct charged as a violation of Article 133 or 134, Uniform Code of Military Justice, 10 USC § 933 or 934, respectively, must be such that an accused servicemember is fairly on notice of its proscription. Parker v. Levy, 417 U.S. 733, 752-54, 94 S.Ct. 2547, 2559-61, 41 L.Ed.2d 439 (1974). '
30. Regarding “fraternization,” whether charged as a violation of Article 133 or 134,1 take it that paragraph 83 (“Fraternization”), Part IV, Manual for Courts-Martial, United States, 1984, constitutes rather explicit notice to servicemembers. I have never agreed with those who would argue that the Service Secretaries need to promulgate some special regulation in order for fraternization to become chargeable as an offense. We might recall that the Manual for Courts-Martial is an Executive Order promulgated by the Commander in Chief, an authority superior to the Service Secretaries. Persons arguing against the wisdom of outlawing fraternization in the services should address their appeals there.
31. In my view, the only thing left to debate in a given case is whether the particular conduct is prejudicial to good order and discipline and, thus, constitutes fraternization or conduct unbecoming an officer by fraternizing. I take it that even the most ardent advocates concede that sexual intercourse by a superior officer with a subordinate service-member takes it over the line of “equality,” the sine qua non of fraternization (or “sororitization” as the case may be).