(concurring):
On a number of occasions in the past, I have expressed my great concern about the amorphousness of the offense of fraternization, particularly in the Air Force, and my belief that, if the Air Force wants to punish such conduct as criminal, it should issue a suitable punitive regulation that would define the specific types of conduct that are prohibited. See, e.g., United States v. Fox, 34 MJ 99 (CMA 1992); United States v. Appel, 31 MJ 314 (CMA 1990); United States v. Wales, 31 MJ 301 (CMA 1990); United States v. Johanns, 20 MJ 155(CMA), cert, denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); see generally Smith, “The Air Force and Fraternization: In Search of a Custom,” 43 The Federal Lawyer 10 (No. 2, February 1996). However, in view of the uncontradicted testimony at trial about the Air Force custom, see United States v. Wales, supra at 309, and consistent with the recognition that, historically, some types of fraternization have been prohibited, I must give credence to the unrebutted government evidence that this custom was violated by appellant.
Even in a military context, certain aspects of the First Amendment freedoms of speech and association persist. Therefore, I have some concern that an officer’s sharing an off-post facility with an enlisted person and being addressed by first name off post and away from military places of duty could be punishable as fraternization. This accused’s conduct, however, went much further than that. Accordingly, I concur in the majority opinion.