with whom WISS, Judge, joins (concurring in the result):
32. This appeal from a conviction based on a guilty plea raises two particular questions for me. First, was appellant’s actions as charged and admitted “conduct unbecoming an officer,” in violation of Article 133, Uniform Code of Military Justice, 10 USC § 933? See Parker v. Levy, 417 U.S. 733, 752-55, 94 S.Ct. 2547, 2559-61, 41 L.Ed.2d 439 (1974). Second, if his actions were conduct unbecoming an officer, did appellant have “fair notice” that his actions would constitute this criminal offense? Id. at 755-57, 94 S.Ct. at 2561-62. I do not accept the lead opinion’s assumption that fraternization was impliedly charged in this case or its suggestion that appellant’s case can be resolved solely on the basis of paragraph 83b(4), Part IV, Manual for Courts-Martial, United States, 1984.1
*15733. Assuming appellant was found guilty of fraternization, I would join Judges Gierke and Wiss in affirming appellant’s conviction solely on the basis of his guilty-plea responses. In particular, I disagree with the lead opinion’s suggestion that the Air Force Court of Military Review in this case (37 MJ 872, 877-78 (1993)) overruled its own prior decision in United States v. Johanns, 17 MJ 862 (1983), on the scope of criminal fraternization in the Air Force. Moreover, I strongly object to the United States Court of Appeals for the Armed Forces reviewing the lower court’s purported failure to apply the doctrine of stare decisis to its own decision. See United States v. Johanns, 20 MJ 155(CMA), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). Finally, if the Air Force Court of Military Review overruled United States v. Johanns, 17 MJ 862, in this ease as suggested by the lead opinion, it cannot avoid considering the Supreme Court decision in Marks v. United States, 430 U.S. 188, 196, 97 S.Ct. 990, 995, 51 L.Ed.2d 260 (1977) (due process violation to prosecute for criminal conduct not criminalized at time of offense but later criminalized by subsequent expansive judicial decision).2
34. The issues raised in this case set the legal snare which has caused the lead opinion to stumble. They state:
I
WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT WHEN THE AIR FORCE COURT OF MILITARY REVIEW DETERMINED THAT HIS “GUILTY PLEA TO CONDUCT CLEARLY NOT RECOGNIZED AS CRIMINALLY PROSECUTABLE FRATERNIZATION UNDER THE HOLDING IN JOHANNS[1] MAY STAND.” [2]
II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW AND VIOLATED THE POLICY OF STARE DECISIS IN RULING THAT THE FINDINGS OF JOHANNS ARE LIMITED TO THE FACTS OF THAT CASE.
35. Quite candidly, the phrasing of these issues is rather presumptuous. The first issue assumes that the portion of the decision of the Air Force Court of Military Review in United States v. Johanns, 17 MJ 862, concerning the scope of Article 133 survived the decision of this Court in United States v. Johanns, 20 MJ 155. I do not share this view. United States v. Kroop, 38 MJ 470, 473 (CMA 1993) (Sullivan, C.J., concurring in part and in the result); United States v. Wales, 31 MJ 301, 310 (CMA 1990) (Sullivan, J., concurring in part and in the result); United States v. Appel, 31 MJ 314, 322 (CMA 1990) (Sullivan, J., concurring in part and in the result). Assuming it did survive our decision in United States v. Johanns, 20 MJ 155, the second granted issue further assumes that it is this Court’s role to enforce the doctrine of stare decisis in a lower court and ensure that the court below follows its own decisions. No authority is proffered for this novel use of the doctrine of stare decisis and I do not believe such a question should be entertained by this Court. See United States v. Felix, 40 MJ 356, 359 (CMA 1994). Cf. Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1122-24 (7th Cir. 1987) (District court decision that it was required to follow a different district court’s decision because of doctrine of stare decisis found erroneous by a court of appeals.)
*158I
TRIAL MOTION
36. Appellant was charged with conduct unbecoming an officer, in violation of Article 133. The specification of this Charge does not expressly allege fraternization but instead states:
Specification 5: In that [appellant] did, at or near Great Falls, Montana, on divers occasions between on or about 15 May 1990 and on or about 30 June 1990, wrongfully, dishonorably, and disgracefully engage in an unprofessional close personal social relationship, including sexual intercourse, with Airman [MRB], an enlisted person.
37. Prior to entering a plea to this charge, appellant made a motion to dismiss this charge “for failure to state an offense.” He submitted a written motion which characterized this offense as “fraternization” and asserted:
There is no crime here. Officers engaging in mutually voluntary, private, nondeviate sexual intercourse with enlisted members, neither under their command nor supervision, are not violating the article prohibiting conduct unbecoming an officer or the article prohibiting conduct prejudicial to good order and discipline. US v. Johanns, 20 MJ 155 (CMA 1985). Further, “if the Air Force elects to prosecute and punish private sexual intercourse between an officer and an enlisted person not under his command or supervision, then ... it must promulgate specific punitive regulations forbidding the unwanted conduct (emphasis added).” US v. Wales, 31 MJ 301 at 307 (CMA 1990). The Air Force issued AFR 35-62, entitled “Policy on Fraternization and Professional Relationships,” but this is not a punitive regulation. See Wales, supra and AFR 35-62.
38. The Government objected to characterization of appellant’s offense as “fraternization” and insisted that appellant was lawfully charged with “conduct unbecoming an officer.” The military judge initially declined to rule on this motion until evidence was presented to him as to whether a custom existed in the Air Force prohibiting such conduct between an unmarried officer and an enlisted person. Appellant again insisted that, as a matter of law, he could not be prosecuted for the charged offense unless a service regulation had been promulgated prohibiting it. He relied on the decisions of the United States Court of Military Appeals in United States v. Wales, 31 MJ at 307, and United States v. Johanns, 20 MJ 155. The military judge implicitly rejected the characterization of this offense as fraternization and the argument that a punitive regulation was required to punish the charged conduct.
39. The record of trial on this matter states:
MJ: Captain Peterson [defense counsel], you have a motion before me to have this specification dismissed, as it fails to state an offense. What do you want to do?
DC: Well, Sir, the defense’s position is that it’s not a factual issue, that it’s a legal issue under the case law, and that you can make a ruling based on the law as it stands under Johanns, Wales, and [U.S. v.] Arthen [32 MJ 541 (AFCMR 1990)]. The case law says there must be a punitive regulation and there is no punitive regulation.
We understand that you said you think it’s a factual issue, and the Government has asked for you to defer ruling and we are ready to enter pleas in the case and proceed.
MJ: Okay. Notice can be shown either by punitive regulation or by a custom of the service.
DC: Yes, Sir.
MJ: We agree that there’s no punitive regulation, but what I’ve done is given trial counsel the opportunity to provide the evidence if there is some custom of the service which makes the misconduct criminal and that your client was on notice of it.
DC: Yes, Sir.
MJ: Now, we can go to pleas. If he pleads not guilty to that specification, then I can certainly make that determination when I make the determination *159on the factual issue. I can do them all at the same time; rule on the motion and on the factual issue of guilt and innocence at the same time.
DC: Yes, Sir.
MJ: If your client’s going to plead guilty to that, then ...
DC: Yes, Sir, I understand.
MJ: ... you know, his Care Inquiry may be interesting.
DC: Yes, Sir, and we are probably facing an interesting Care Inquiry, Sir.
MJ: Okay. Fine. So, you are willing to have me defer ruling on the motion?
DC: Yes, Sir.
MJ: Are you prepared to enter pleas?
DC: Yes, Sir.
MJ: Go ahead.
DC: Lieutenant Boyett pleads to specifications 2, 3, 4, and 5 of the Charge and the Charge, guilty.
MJ: Your client then is pleading guilty to the specification which is in issue, specification 5?
DC: Yes, sir.
II
SCOPE OF ARTICLE 133 OF THE CODE
40. The first question I must address is whether the military judge and the Court of Military Review erred in failing to grant appellant’s motion based on our decisions which purportedly established a punitive-regulation requirement for prosecution of fraternization under Article 133. Admittedly, this was one of the holdings of the Air Force Court of Military Review in its decision in United States v. Johanns, 17 MJ at 869 n. 21 with respect to the criminal offense of fraternization. Moreover, this Court long ago suggested such an approach to prosecuting fraternization under Article 133 should be followed. See United States v. Pitasi, 20 USC-MA 601, 44 CMR 31 (1971).
41. Of course appellant in this case was not expressly charged with fraternization or association “on terms of military equality” with enlisted persons. See para. 83b(2) and f, Part IV, Manual, supra. In any event, this Court did not affirm that portion of the opinion of the Air Force Court of Military Review in United States v. Johanns, 17 MJ at 869 n. 21, which required a punitive regulation for the prosecution of fraternization. See United States v. Johanns, 20 MJ 155. Finally, this view of the scope of Article 133 has not commanded a majority of this Court in any of our subsequent cases. See United States v. Kroop, 38 MJ 470; United States v. Appel, 31 MJ 314; United States v. Wales, 31 MJ 301. Accordingly, the military judge and the Court of Military Review did not err in upholding the refusal to grant appellant’s motion to dismiss on the basis that no service regulation prohibited fraternization.
42. The next question I must address is whether the military judge and the Court of Military Review erred in holding that violation of a service custom may serve as a basis for prosecution of appellant’s conduct of unbecoming an officer under Article 133. The Supreme Court in Parker v. Levy, supra, clearly indicated that conduct in violation of a custom was within the scope of Article 133; however, it also indicated such a custom was not the sole means of establishing whether an Article 133 violation occurred. In fact, in Parker v. Levy, supra, the conduct was found to be a violation of Article 133 because it breached a provision of the Manual for Courts-Martial explaining conduct violative of that article. The Supreme Court also noted that conduct found to be unbecoming an officer by decisions of the Court of Military Appeals and other “authoritative military sources” would further narrow the scope of the statute. 417 U.S. at 754, 94 S.Ct. at 2561 (emphasis added). Accordingly, I conclude that the military judge and the Court of Military Review did not err in ruling that conduct in breach of a service custom may be prosecuted under Article 133. See also para. 83b(4), Part IV, Manual, supra.
43. A third question I will address is whether the military judge and the Court of Military Review correctly held that appellant’s conduct fell within the lawful scope of Article 133. See Parker v. Levy, supra. To resolve this question, I first must note the specifics of that conduct and the circum*160stances which appellant admitted in his guilty plea responses surrounded it. He, as an officer, was charged with “engaging] in an unprofessional close personal social relationship ... with an enlisted” woman. The circumstances shown to be “dishonorable] and disgracefiil” were that both were stationed at the same base but assigned to different units; the relationship was subsequently disclosed to another enlisted person; appellant appeared to be sexually exploiting the enlisted woman; and appellant knew this conduct violated a custom of the Air Force.
44. Clearly, this was not the non-exacerbated fraternization situation presented in United States v. Johanns, 17 MJ at 868. In that case there was no suggestion of sexual exploitation of an enlisted person or military awareness of this destructive relationship or any concession that a custom of the service prohibited such conduct by an officer. Regardless whether this conduct should properly be considered fraternization, it squarely falls within the authoritative military law precedents prohibiting sexually demeaning conduct by an officer. These numerous precedents were cited by one of the dissenting judges in United States v. Johanns, supra at 884-85 n. 15.
45. Judge Miller, a partially dissenting judge in the decision of the court in United States v. Johanns, 17 MJ at 882-83, made this point in his separate opinion in that 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. Even more importantly, they might have recognized that the behavior alleged, here, falls distinctly within the fourth of these actionable categories, demeaning sexual behavior.
(Footnote omitted; emphasis added.)
46. I agree and would hold that appellant’s conduct under the circumstances of this case demeaned him as an officer and undermined his ability to lead. See also United States v. Frazier, 34 MJ 194, 198 (CMA 1992) (and cases cited therein). I further agree with Judge Miller that ample military legal precedent (17 MJ at 882 n. 15) existed which delineated it as conduct unbecoming an officer, in violation of Article 133. See United States v. Boyett, 37 MJ at 880 n. 12 (James, J., concurring). Finally, I agree with the Court of Military Review that, if appellant’s conduct constituted fraternization, then his guilty-plea responses also established that his conduct violated a service custom as delineated in Parker v. Levy, 417 U.S. at 752-55, 94 S.Ct. at 2559-61, and paragraphs 83b(4) and 59c(2), Part IV, Manual, supra. Appellant admitted there was a custom in the Air Force prohibiting fraternization between an officer and an enlisted person, including sexual intercourse.
Ill
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, supra 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 *161Due 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 MJ at 161, this Court simply held ttjat 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.
48. More particularly, this Court in United States v. Johanns, 20 MJ at 161, held that Captain Johanns was denied due process of law under the Fifth Amendment when he was convicted of conduct unbecoming an officer by fraternizing with 3 different enlisted women. One of the dismissed specifications specifically alleged that appellant shared a bed with the enlisted woman; the other two specifically alleged acts of sexual intercourse with the enlisted women. See United States v. Johanns, 17 MJ at 863-64 n. 1. This Court affirmed the lower court’s dismissal of these specifications for the following reason:
With respect to the ease at bar, it appears that Captain Johanns lacked the notice from custom or otherwise which, even under the relaxed standard of review established by Parker v. Levy, supra, is constitutionally necessary to meet the due process requirements of the Fifth Amendment. Therefore, the Court of Military Review properly dismissed specification 2, 3, and 4 of Charge I; and the two certified questions must be answered in the affirmative. Because of multiplicity, Charge II and its specification must also be dismissed. United States v. Rodriquez, 18 MJ 363 (CMA 1984)
20 MJ at 161 (emphasis added).
49. I do not read United States v. Johanns, 20 MJ at 161, as holding that an officer in the Air Force could never, as a matter of law, have adequate notice that his sexual relationship with an enlisted woman violated Article 133. Indeed, such an idea is preposterous in view of the 10-year time period involved and the myriad of circumstances in which such a sexual relationship could occur. In addition, I note that appellant at his trial did not expressly argue that he was denied fair notice of the criminality of his conduct but instead exclusively relied on his required-punitive-regulation theory. Finally, as part of his guilty plea responses, appellant openly conceded that his conduct violated a custom of the Air Force, that he knew that it violated that custom, and that he knew that such conduct was unbecoming an officer. I agree with the Court of Military Review that this due process issue is resolved in appellant’s case by his own words admitting constructive and actual notice. Cf. United States v. Fox, 34 MJ 99, 103-04 (CMA 1992) (contested trial where inadequate instruction given on factual question of custom).
50. In sum, for the above reasons, I find appellant’s conduct violated Article 133 of the Code. Therefore, I vote to affirm the decision below holding his guilty pleas to this offense to be provident.
. In 1984, the President promulgated the Manual for Courts-Martial, United States, and delineated ''fraternization” as a crime under Article 134, Uniform Code of Military Justice, 10 USC § 934. He further provided that the Government must prove as a matter of fact that "such fraternization violated the custom of the accused's service that officers shall not fraternize with enlisted members on terms of military equality.” Para. 83b(4), Manual for Courts-Martial, United States, 1984. In United States v. Fox, 34 MJ 99, 102-03 (1992), this Court held that it was a question of fact whether an accused’s particular service prohibited certain conduct as unlawful fraternization as a matter of custom. Accordingly, the lead opinion's finding of criminality and adequate constructive notice on the basis of paragraph 83 alone is in my view plainly erroneous. See generally Parker v. Levy, 417 U.S. 733, 755-57, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974).
. Unlike the lead opinion, I need not address appellant’s argument under Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), because I conclude the portion of United States v. Johanns, 17 MJ 862 (AFCMR 1983), on the scope of Article 133, UCMJ, 10 USC § 933, was implicitly overruled by the decision of this Court in United States v. Johanns, 20 MJ 155 (CMA), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). This took place long before the occurrence of appellant’s conduct in 1990.
. United States v. Johanns, 17 MJ 862 (AFCMR 1983)
. United States v. Boyett, 37 MJ 872, 874 (AFCMR 1993).