(concurring in part, concurring in the result in part):
The Judge Advocate General of the Air Force certified the following question:
UNDER THE CIRCUMSTANCES OF THIS CASE, WAS THE COURT OF [MILITARY] REVIEW CORRECT IN NOT SUSTAINING CONVICTION OF CONDUCT UNBECOMING AN OFFICER IN VIOLATION OF ARTICLE 133 AS TO SPECIFICATIONS 2, 3, AND 4 OF CHARGE I?
*162Believing that the evidence establishes beyond any reasonable doubt that the conduct of the accused was conduct unbecoming an officer, I would have no difficulty in answering this question in the negative.1
The key issue presented in this case is whether the conduct of the accused violated Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933. There are many kinds of relationships between officer and enlisted personnel, regardless of sex. Most of these relationships dos not ripen into conduct which could be deemed unlawful. However, when the relationship between an officer and several enlisted members of the opposite sex does ripen into obvious and open sexual relationships, including, as in this case, one adulterous relationship which even the Court of Military Review found criminal, then, in my opinion, such conduct becomes “unbecoming an officer and a gentleman,” in violation of Article 133.
I reach, this conclusion without traversing the convoluted paths of “fraternization” and “customs of the Air Force.” There are certain standards of conduct expected of those who belong to the officer corps which are understood by them and which exceed the standards that apply to civilians. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); see Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857). Conduct that does not meet these standards, under certain circumstances, amounts to a violation of Article 133. While I would not attempt to define the exact parameters of the conduct proscribed by Article 133, I have no doubt that the accused’s conduct here does fall within those parameters. I also have no doubt that most officers would agree with me, as did the court-martial members, the military judge, the staff judge advocate, the convening authority, and three judges of the Court of Military Review.
Had this case been pleaded, tried, and affirmed below simply along these lines, I would have sustained the findings of the trial court. However, the pleadings and the military judge’s instructions added the additional element of “fraternization,” a concept difficult of definition and certainly difficult to establish as violative of a “custom of the service,” since it occurs in both permissible and impermissible forms. Preoccupation with this concept is what led the Court of Military Review astray, in my view.
The majority of the Court of Military Review seems to have regarded the question as simply whether “there is in the United States Air Force a custom which proscribes unlawful fraternization and makes actionable the association of officers with enlisted personnel on terms of military equality.” United States v. Johanns, 17 M.J. 862, 865 (A.F.C.M.R. 1983). While the majority never undertook to define “fraternization,” they noted the absence in the case law of “any discussion of voluntary, private, non-deviate sexual activity between of-age officer and enlisted members, who are of age, who were not associated with one another in any way on duty.” Id. at 867. Presumably, it was such conduct, without more, that the majority of the Court of Military Review found not to be prohibited by custom in the Air Force.
As I read the record of trial, the accused was convicted of quite a different offense. To be sure, the trial judge instructed the court members that, as to each of the specifications, they must find that certain conduct occurred and that it constituted “fraternization.” However, he defined “fraternization” as
to associate, with another or others on equal terms. Not all associations between Air Force officers and enlisted personnel are wrongful. It is the appropriateness, of the time, place, circumstances, and conduct which is the determinant. To be wrongful, the fraterniza*163tion must be of such a nature as to demean the officer, to detract from the respect and regard for authority inherent in the military relationship between officers and enlisted. Essentially, to establish fraternization, the prosecution must prove that the association with enlisted personnel was under such circumstances which were prejudicial to good order and discipline in the armed forces.
(Emphasis added.)
Further, he defined “conduct unbecoming an officer and a gentleman” for the court as
actions or behavior in an official capacity, which in dishonoring or disgracing the individual as a commissioned officer, seriously compromises his character as a gentleman, or action or behavior in an unofficial or private capacity, which in dishonoring or disgracing the individual personally, seriously compromises his standing as a commissioned officer. To constitute unbecoming conduct, the misbehavior should not be slight, but must be of a material and pronounced character. Unbecoming as used here, refers to behavior which is not merely inappropriate or unsuitable, such, as not in good taste, against propriety, or not consonant with usage, but rather which is morally unbefitting and unworthy.
(Emphasis added.)
In other words, the accused was not convicted of just dating or casual sex with enlisted servicewomen; he was convicted of carrying on these activities in such a manner as to cause these specific deleterious effects on his own status as an officer and on military good order and discipline in general. Furthermore, it should be pointed out that, at trial, the defense specifically agreed that the type of “fraternization” described by the military judge violated a custom of the Air Force. Their argument was simply that the accused’s activities did not meet the threshold of this type of “fraternization.” The court members obviously believed otherwise.
What was the evidence that showed this impact on military authority? Even though the only witnesses in the trial were the accused’s paramours (all of whom expressed the utmost respect and admiration for him and denied that anyone else in the world had any inkling of their relationship with him), it is not difficult to detect the open and notorious nature of his associations.2
*165I am prepared to defer to the expertise and factfinding authority2 3 of the Court of Military Review in their conclusion that dating, and even sexual intercourse, between an officer and an enlisted person, without more, is not prohibited by custom in the Air Force; and so the accused would have lacked notice that that type of conduct was a crime. See Parker v. Levy, supra, 472 U.S. at 752-61, 94 S.Ct. at 2559-64. However, I am frankly astounded by the majority’s implicit conclusion that there is no custom in the Air Force (the existence of which had been conceded by the defense at trial) forbidding associations between officers and enlisted personnel that (quoting the military judge) “demean the officer,” “detract from the respect and regard for authority inherent in the military relationship between officers and enlisted,” “prejudice] ... good order and discipline in the armed forces,” “dishonor[] or disgrac[e]”
the officer “personally,” “seriously compromise[] his standing as a commissioned officer,” and are “morally unbefitting and unworthy.” Unfortunately, I find no authority for this Court to overturn this remarkable factual conclusion. Article 67(d), UCMJ, 10 U.S.C. § 867(d). Thus, while I must abide by the judgment of the majority below, I wish to make it clear that my deference to their factfinding expertise in the customs of that service in no way forecloses a different result from other service courts, should the circumstances of a particular case so dictate.
With this reservation, I join in the result reached by the Chief Judge. I agree that the specification of Charge II is multiplicious with specification 1 of Charge I. United States v. Rodriquez, 18 M.J. 363 (C.M.A. 1984).
. Inasmuch as I believe there is ample evidence to conclude that the accused was guilty of conduct unbecoming an officer and a gentleman, I would have no hesitancy in answering the second certified question in the negative as well, but for the factual findings of the Court of Military Review, since conduct unbecoming an officer and a gentleman is clearly prejudicial to good order and discipline.
. The following excerpts from the record of trial are illustrative:
[Testimony of Staff Sergeant Sheryl K.]
[TC] How did you happen to meet the accused?
[WIT] I was introduced to him by a co-worker of mine.
******
I was down in the missile wing DO office.
A friend of mine introduced Captain Johanns out of courtesy.
Q Was that friend another enlisted person?
A Yes sir.
Q And who was that?
A Sergeant Finnegan.
Q After that first meeting, did you have any other contact with the accused?
A Yes sir.
******
Q What was the nature of that contact?
A We went out on a few dates.
******
Q Sergeant [K.], at any time did you have sexual intercourse with the accused?
A Yes sir.
Q Do you recall how many times?
A Three or four. I don’t keep count.
******
Q At what point in time did you break off your relationship?
A It was in September.
Q And why was that?
A (Pause.)
Q Did you have any reasons?
A No sir.
Q Was the accused dating anyone else?
A He was dating several others.
******
[Testimony of Sergeant Donna I?.]
[TC] Sergeant [R.], do you know when you first met the accused?
[WIT] It was at a promotion party, I believe. I’m not sure of the exact date, sir.
Q Where was that?
A The NCO Club, here on base. [See Note A, infra.]
Q Were you introduced to him by someone?
A Yes sir, I was.
Q Who was that?
A Sergeant [KJ.
Q That is Staff Sergeant [K.]?
*164A Yes. She was a buck sergeant at the time.
******
Q Let me draw your attention to the 5th of October of last year. Did you have any contact with the accused on that date?
A Yes sir, I did.
Q Would you please tell the court what that was?
A It was at the NCO Club here on base. I was over there with a friend, Staff Sergeant Pierce, Leslie Pierce, and we were over there having a few drinks and Captain Johanns and a couple of his friends walked in. He didn’t come over right away. He came over after he had a drink or so. He came over and visited with us for a few minutes, and we were talking, and he asked me over to his trailer. Q On the 5th of October, when you met him as you say, were you married?
A Yes sir, I was.
******
Q Now, after the accused invited you over to his trailer, did you go?
A Yes sir, I did.
Q Where is that trailer located?
A In the trailer court on base, sir.
Q Were you wearing a wedding band?
A Yes sir, I was.
Q Sergeant [R.], when you went to his trailer, did you engage in sexual intercourse with the accused?
A Yes sir, I did.
Q Now, after the 5th of October, did you ever [sic] any other contact with him?
A Yes sir, I did.
Q When was that?
A It was on the 8th of October.
Q And what happened on that day?
A I was going down to Friday’s bar in downtown Minot with two other friends, and I invited Captain Johanns to go along. We all went in my car; I drove down. The four of us all went together.
Q The two other friends, were they enlisted? A Yes sir, they were.
Q All right, go ahead. What happened then? A We went to Friday’s and it was mainly a social event; everybody was on a first name basis that night, and I’m not sure of the exact amount of drinks we had. Everybody was having a pretty good time.
Q Were you there very long?
A Until closing, sir. About one or one-thirty I would say.
Q Did you have many drinks?
A I would say a few. I don’t'know the exact amount.
Q Do you think you were intoxicated when you left?
A I know I was. I’m not sure about anybody else.
Q What happened after the bar closed?
A We all proceeded to come back to base. I didn’t drive. Airman First Class Desserine drove back.
Q Where was the accused; was he in the car with you?
A Yes sir, he was.
Q What happened?
A After we got back to base, Airman First Class Desserine dropped himself off at his dorm, I believe, and the Sergeant Kraft drove to his dorm and dropped himself off, and from what I can recall, Captain Johanns drove me to my house.
Q Do you recall then what happened?
A We went inside. I put my dogs out. I went upstairs to change clothes and that is all I can remember.
Q Do you recall asking the accused to spend the night with you?
A No sir, I don’t remember.
Q What happened, Sergeant [R.], when you woke up the next morning?
A Captain Johanns was in the bed beside me.
Q Do you recall whether or not you engaged in sexual intercourse with him?
A No sir, I don’t.
******
Q Did the accused know, on both dates, that you were married?
A Yes sir, he did.
******
Q Did he ever express any concern about your husband finding out?
A Yes sir, he did.
******
Q You said you knew Sergeant [KJ. Did she ever speak to you concerning the accused? A Yes sir, she did.
Q What did she tell you?
A Basically, just the problems that she was having seeing him, liking him, things like that.
Q Did she tell you she was going out with him?
A Yes sir, she did.
******
Q Sergeant [RJ, do you know a Lieutenant [T.]?
A Yes sir, I do.
Q Did you ever go over to his home?
A Yes sir.
Q Who else was there?
A Sergeant [KJ, my hushand, Captain Johanns, Lieutenant [T.’s] wife at the time. [See Note B, infra.}
Q And Lieutenant [T.]?
A Yes sir.
******
[:Testimony of Senior Airman Michelle P.}
[TC] How do you happen to know the accused?
[WIT] I met him through a mutual friend, sir. Q Who was that?
A Sergeant Finnegan.
******
Q After you first met him, did you have occasion to see the accused again?
*165A Yes sir.
Q When was that?
A Well, since the time I met him, around September or October, I seen him quite frequently in the club and in a social circumstance at Lieutenant [T.'s] house.
Q Who else was there?
A At the club?
Q At Lieutenant [T.’s]?
A There was Donna and Sheryl; they were in here today; Sergeant Finnegan, Donna’s ex-husband, Lieutenant [T.], his wife, Captain Johanns, and myself.
Q Now, did you ever date the accused?
A Yes sir, I did at one time.
******
Q Where did you go?
A We went down to the Haunted House at the Fairgrounds at Minot, at that time. ******
Q After you went to the funhouse downtown, what did you do with the accused?
A We returned to my residence, sir.
Q Here on base?
A Yes sir.
Q That evening, did you engage in sexual intercourse?
A Yes sir.
Q Were there any other times when you had sexual intercourse with the accused?
A Yes sir.
Note A : During all times pertinent here, the Officers’ Club was closed for renovations and all officers were authorized to use the NCO Club. Note B: Though the fact was not mentioned to the court members, at the time of the accused's trial, he was married to the woman who had been Lieutenant Ts wife during the relevant time frame. It was Lieutenant T’s report of the accused’s sexual activity with the enlisted women that brought these matters to the attention of the command.
. Article 66(c); Uniform Code of Military Justice, 10 U.S.C. § 866(c).