U.S. v. Rogers, 54 M.J. 244

First Principles: Constitutional Matters: Due Process

1. specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness because it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation or custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134
2. officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness where it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation of custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134
2. officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships
3. there is certain conduct to which Article 133 clearly applies without vagueness of imprecision; but where areas of uncertainly as to the coverage of the article remain, further content may be supplied by less formalized custom and usage, and the officer charged with an Article 133 offense must have fair notice that his or her conduct was punishable
4. specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer did not fail to state an offense because it did not specify the acts which constituted the unprofessional relationship; the acts did not constitute the relationship, rather they evidenced that relationship, and appellant was notice of those acts which were set forth in a Bill of Particulars as supplemented by the Article 32 investigating officer’s report
5. evidence was legally sufficient to support finding of guilty of specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer – this evidence is set forth in some detail in the Senior Judge Cox’s opinion

Trial Stages: Pretrial: Charges and Specifications

1. specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness where it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation of custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134
2. officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships
3. specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer did not fail to state an offense because it did not specify the acts which constituted the unprofessional relationship; the acts did not constitute the relationship, rather they evidenced that relationship, and appellant was notice of those acts which were set forth in a Bill of Particulars as supplemented by the Article 32 investigating officer’s report

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. Court of Appeals for the Armed Forces is a court with only legal review authority and reviews facts in the light most favorable to the prevailing party below; it is not the court’s function to reweigh evidence and determine guilt or innocence anew

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the standard of review for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt; in resolving legal sufficiency questions, court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution