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 MJ 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.

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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

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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 MJ 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 MJ 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

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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.

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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.

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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.

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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

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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.

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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,

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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.

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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."

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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.

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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

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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

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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 MJ 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 MJ 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 MJ 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 MJ 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 MJ 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

MJ 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 MJ 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

MJ 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.

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United States v. Rogers, No. 99-0838/AF

United States v. Kroop, 38 MJ 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 MJ 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 MJ 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.

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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

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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.

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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."

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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.

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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

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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 MJ 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

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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.

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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