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Consensual Homosexual Conduct, in Certain Circumstances, as "Conduct Unbecoming an Officer and a Gentleman":

An interesting decision of the U.S. Air Force Court of Criminal Appeals (U.S. v. Harvey), handed down two months ago but just now appearing on Westlaw:

In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges to Article 125, UCMJ, 10 U.S.C. § 925, based on [Lawrence v. Texas], must be addressed on an as applied, case-by-case basis. Marcum identified a three-part test for addressing Lawrence challenges within the military context. Under the three-part test, courts ask: (1) was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court in Lawrence; (2) did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and (3) are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest? ...

[The court answered questions 1 and 2 by concluding that the private, consensual conduct here was within the Lawrence sexual autonomy right.-EV] [As to question 3, t]he appellant's case did not involve a situation whereby the appellant was in a superior-subordinate relationship with his paramour. His case also does not involve the violation of the law, military instructions, regulations, or policies as a precursor to his conduct. Lastly, the appellant's conduct did not involve a situation wherein the appellant was involved in a sexual relationship with the married spouse of another military member. In short, there are no additional factors relevant solely in the military environment that affect the nature and reach of the appellant's Lawrence liberty interest....

[W]e must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman. Axiomatically, a "higher code termed honor" holds military officers to stricter accountability than their enlisted and civilian counterparts.

The command structure and the necessity for good order and discipline prohibit officers from acting in ways that "bring dishonor or disrepute upon the military profession which [they represent]." The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal.... All that is required is for the offender's conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. Moreover, military law is replete with examples of conduct protected by the Constitution when engaged in by civilians but which becomes criminal when engaged in by military members.... [T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ....

In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), [Footnote: These rumors abounded throughout the Incirlik Air Base and local Turkish communities and caused at least one Turkish national, Mr. MH, enough consternation that he reported the appellant's conduct to base authorities and took actions into his own hands by secretly videotaping the appellant's act of fellatio] evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

The court affirmed the conviction, which ultimately yielded only a reprimand.

UPDATE: CAAFlog has more on this; thanks to commenter Cloudesley Shovell for the pointer. Thanks also to several commenters who pointed out that my initial reading of the case -- that the defendant was dismissed as well as being reprimanded -- was mistaken; the convening authority apparently reduced that initial sentence to a reprimand alone.

Cloudesley Shovell (mail):
The case was discussed on CAAFlog (a military justice blog) here: http://caaflog.blogspot.com/2009/04/
afcca-holds-officer-can-be-convicted.html

(Sorry, we dead British admirals don't do html coding)

CAAFlog is an excellent resource for those interested in following current events in military justice.

And for those unfamiliar with military punishments, a dismissal is a punitive separation from the service. It is an officer-only punishment. The more familiar punitive separations are the dishonorable discharge and the bad-conduct discharge, which are punishments for enlisted personnel only.
6.3.2009 7:16pm
Curmudgeonly Ex-Clerk (www):
Did the appellate court actually affirm dismissal and reprimand or just the latter? I cannot tell, and I think I am hindered by my own ignorance of the military justice system here.

Here is why I am confused:

The first page of the the decision states: "Approved sentence: Repirmand." This is not part of the court's opinion per se. But the opinion itself states the following regarding the sentence in the opening paragraph: "The members sentenced the appellant to a dismissal and a reprimand. The convening authority approved the reprimand."

So was he only reprimanded?
6.3.2009 7:29pm
Eugene Volokh (www):
Cloudesley Shovell: Very interesting, thanks! So is a dismissal roughly equivalent to a dishonorable discharge? Would someone generally have to disclose it on job applications, for instance?
6.3.2009 7:31pm
Roscoe14 (mail) (www):
From my knowledge of these things (which is many years out of date and in addition is based only on what I remember), the convening officer is the commanding officer (at least a colonel) who convenes the courts martial. He then reviews the sentence, and can reduce it if he chooses. So it sounds as if the court sentenced the officer to a dismissal and reprimand, but the convening officer reduced it to just a reprimand.
6.3.2009 7:39pm
ShelbyC:

So was he only reprimanded?


yes.
6.3.2009 7:40pm
Putting Two and Two...:
Question for those familiar with military legal jargon in cases involving sexual (mis)conduct:

Is the word "paramour" commonly used?
6.3.2009 7:41pm
Putting Two and Two...:
Intersting that the video evidence was taken to authorities by the colleague's husband.

I wonder if that was a way to circumvent DADT's much-neglected sibling DP (Don't Pursue).
6.3.2009 7:48pm
Respondent:
How about conduct unbecoming of an officer for an abortion?
6.3.2009 8:04pm
Lior:
Did the resolution of the case depend on the homosexual nature of the conduct? If I understand the reasoning correctly, had the Turkish nationals been female (but the conduct otherwise the same), the court-martial would have reached the same conclusions.
6.3.2009 8:09pm
zuch (mail) (www):
The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.
... as explained and elucidated in regulations promulgated in order C-22 of the Army's Department of Circularity Department.

Cheers,
6.3.2009 8:12pm
Randy R. (mail):
I wonder what other acts or omissions of acts come under the rubric of conduct unbecoming an officer and a gentleman? I can think of a few:

Not doffing one's hat as a lady passes by
Failing to write a handwritten note of thanks for a dinner party invitation
Using the fish fork when the meat fork is called for
Passing port to the right instead of properly to the left
Failing to say 'thank you' after receiving a blow job from a man or woman

Anything else? I mean, c'mon, it's not like we at war or anything....
6.3.2009 8:32pm
Randy R. (mail):
Lior: "Did the resolution of the case depend on the homosexual nature of the conduct?"

If you read the facts closely, you will realize that what scandalized the court is that he performed "fellatio on a Turkish national ... at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with *another* Turkish national (Mr. MH),

Clearly, he was reprimanded for being a two-timing cad. Such breach of manners cannot be tolerated in the military.
6.3.2009 8:46pm
Sid the warmonger (mail) (www):
All,

There seems to be some misinformation in the early comments. Could possibly be just that some commenters are not familiar with US military justice.

#1 Dismissal is not for officers only. It is not an actual category of discharge. The court recommended dismissal and reprimand. It was the commanding officer who decided not to dismiss and to impose the reprimand. Had he been dismissed, the status of the dismissal would be coded in the discharge (honorable, general, or dishonorable). The reprimand will most likely end his career. If the letter goes in his permanent file, he will be involuntarily separated after his current term of obligation.

#2 Conduct unbecoming an officer is just what the hell it means. Any action, whether or not it is legal, that undermines the confidence of subordinates in a leader is conduct unbecoming an officer. He was not on trial for homosexual acts. He was on trial because despite repeated counseling from coworkers, friends, and superior officers, he continued to have sex with host-nation nationals. The acts were not private. He was not going out of his way to conceal his endeavors. Someone complained until it reached the desk of the commanding officer.

#3 Despite high profile cases, most commanders are not pursuing homosexuals in the US military. Action is only taken when the unit personnel no longer are willing to follow the commands of the officer. Every action an officer takes or fails to take has a direct consequence on the unit's performance. Have a high-pitched voice - you will have a short career. Have twitchy eyes - you will have a short career. Have a reputation for screwing every female on the staff - you will have a short career. Don't listen to the commander's policy regarding sexual relations with the locals - you will have a short career.

If the officer had gotten a local female pregnant and the parents filed a formal complaint with the commanding officer, the offender would be charged with conduct unbecoming an officer and would be looking for a new job so fast his head would spin.
6.3.2009 9:20pm
ShelbyC:

Did the resolution of the case depend on the homosexual nature of the conduct? If I understand the reasoning correctly, had the Turkish nationals been female (but the conduct otherwise the same), the court-martial would have reached the same conclusions.


Not clear from the opinion. But I don't know of any current precedent where disfavoring homosexual conduct would be a problem, correct?
6.3.2009 9:38pm
Randy R. (mail):
Sid: "Any action, whether or not it is legal, that undermines the confidence of subordinates in a leader is conduct unbecoming an officer.

well, that's actually a much better definition than the current circular reasoning that is the law. Why isn't that part of the law?

"Have a high-pitched voice - you will have a short career. Have twitchy eyes - you will have a short career. "

In all honesty, why would these traits give you a short career? I can understand screwing all the gals would end it, but if these traits were so bad, how would you become an officer in the first place? You can't really be saying that only baritones can be officers?
6.3.2009 10:49pm
2cents (mail):
Actually, dismissal is only for officers:

"(8) Punitive separation. A court-martial may not
adjudge an administrative separation from the service.
There are three types of punitive separation.
(A) Dismissal. Dismissal applies only to commissioned
officers, commissioned warrant officers,cadets, and midshipmen and may be adjudged only by a general court-martial. Regardless of the maximum punishment specified for an offense in Part IV of this Manual, a dismissal may be adjudged for any offense of which a commissioned officer, commissioned warrant officer, cadet, or midshipman has
been found guilty;..." Rule for Court Martial 1003 (b)(8)(A).

As a former Army prosecutor and military magistrate, I can say that it was exceedingly rare for homosexual acts to be prosecuted absent some force, coercion, abuse of authority, or injury. Most cases involving homosexual conduct are dealt with administratively (involving discharge).
6.3.2009 11:48pm
2cents (mail):
Here are the provisions of Art. 133, UCMJ, Conduct Unbecoming:

"59. Article 133—Conduct unbecoming an officer and gentleman
a. Text of statute.
Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a courtmartial may direct.
b. Elements.
(1) That the accused did or omitted to do certain
acts; and
(2) That, under the circumstances, these acts or
omissions constituted conduct unbecoming an officer
and gentleman.
c. Explanation.
( 1 ) Gentleman . As used in this article,"gentleman" includes both male and female commissioned officers, cadets, and midshipmen.
(2) Nature of offense. Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer,seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency,
indecorum, lawlessness, injustice, or cruelty. 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. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals property violates both this article and Article 121.
Whenever the offense charged is the same as a specific
offense set forth in this Manual, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.
(3) Examples of offenses. Instances of violation of
this article include knowingly making a false official
statement; dishonorable failure to pay a debt; cheating
on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer's presence or about that officer to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer's family.
d. Lesser included offense. Article 80—attempts
e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for a period not in excess of that authorized for the most analogous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year."
6.4.2009 12:07am
Skyler (mail) (www):
This is a very clear and well stated opinion.

The standards of behavior for a military officer are something that some people aren't familiar with.

Yes, twitchy eyes can shorten one's career. Military officers exist primarily for the purpose of leading and controlling the behavior of other people. Every bit of one's behavior is critical to that goal. A military officer must be expected to lead people he knows or doesn't know or who don't know him, just from his presence. Odd or idiosyncratic behavior, if otherwise uncompensated for by other traits, can certainly degrade one's leadership ability. This is the real world, with real stakes, not office cubicles and artificial priorities.

I think the explanation to the article cited by 2cents puts it very nicely.

People in the military aren't better people than the rest of the country. But the officers are held to standards and by and large believe in those standards that are based on this concept of being able to lead. If you lose that credibility and bring discredit on yourself, you have ruined your purpose for being a military officer.

Believe it or not, there have been many officers who have been cashiered for less. Usually they opt to get out rather than have a public, humiliating trial. I'm speculating that this officer decided to make his humiliation into a political agenda.

I'm glad that the CAAF made such a sensible opinion. They upheld Lawrence and other laws, but stuck to the standards for conduct unbecoming. The man was warned, he knew that he was discrediting the nation in the eyes of the host nation, but he persisted. There's no excuse for the behavior.
6.4.2009 12:43am
2cents (mail):
Sid,

None of this is to pick a fight, just to clarify.


#1 Dismissal is not for officers only. It is not an actual category of discharge. The court recommended dismissal and reprimand. It was the commanding officer who decided not to dismiss and to impose the reprimand. Had he been dismissed, the status of the dismissal would be coded in the discharge (honorable, general, or dishonorable). The reprimand will most likely end his career. If the letter goes in his permanent file, he will be involuntarily separated after his current term of obligation.

This is mixing the administrative and punitive discharge provisions. For punitive discharges, there are dismissals (for officers), dishonorable discharges, or bad conduct discharges. The admin discharges are honorable, general under honorable conditions, and other than honorable.



#2 Conduct unbecoming an officer is just what the hell it means. Any action, whether or not it is legal, that undermines the confidence of subordinates in a leader is conduct unbecoming an officer. He was not on trial for homosexual acts. He was on trial because despite repeated counseling from coworkers, friends, and superior officers, he continued to have sex with host-nation nationals. The acts were not private. He was not going out of his way to conceal his endeavors. Someone complained until it reached the desk of the commanding officer.


I agree that he was on trial for conduct unbecoming, but, I think it is important to recognize that he was not apparently counseled, at least not in the formal sense of the word. Had he been, then he would have most likely been charged with violating a lawful order. This leads me to the next point.

He was only charged with one specification of Conduct Unbecoming. I wonder why they did not charge sodomy (though, it may have been out of a desire to evade the same analysis under Marcum that was applied anyway.

Roscoe,

You are pretty much right on, except that since this was a General Court Martial, Article 22, UCMJ, (not specifically, but by inference) requires that a General Officer be the Convening Authority.
6.4.2009 12:51am
2cents (mail):
What we only know from the reported case is the judicial punishment administered at Court Martial (the reprimand). It would be interesting to know if the command instituted show cause proceedings for retention in the Air Force. There may have also been professional qualification issues with the accused's credentialing authority as a Chaplain. It is a near certainty that this officer's career advancement is severely curtailed. But as a result of this Court Martial, he still may be in the Air Force.
6.4.2009 1:14am
2cents (mail):
I think the court got this wrong. If this was consensual heterosexual conduct, would the same result have obtained?

I think that the court's analysis was conclusory.


In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.


I also think the court unnecessarily confused whether this is a question of law or of fact by referencing (in dicta) that the court martial panel found that the conduct was unbecoming.

Imagine the same facts, but the conduct was heterosexual:

He performs sodomy (the military term for oral sex) on a Turkish national while serving as a representative of the US military abroad, when he had been confronted about and knew rumors abounded, both on and off base, about his alleged heterosexual relationship with another Turkish national. I fail to see how these facts are indecorous, disgraced and dishonored him, and seriously compromised his standing as an officer.

First, all members on active duty can be said to be representatives of the US military. I don't see how having consensual relations with another person while having been confronted with rumors of relations (or had it been proven that he actually had engaged in relations) with another foreign national makes his conduct unbecoming. That is, the court seems to indicate that the criminality is not in the homosexual conduct, but in having engaged in it:
-While abroad (don't see a rational basis for this)
-While representing the US military (this would apply to all sexual conduct, under this analysis, of military members)
-At the same time he knew of and was confronted with rumors about sexual relations with another foreign national (should he have been faithful to this other foreign national, it would have been permissible? Is it allegations of multiple partners that makes this criminal? If so, is there a monogamy standard for non-married homosexuals or for all persons regardless of their sexual orientation?).

If it is not the homosexual conduct by itself that is criminal, the addition of the above factors making his conduct criminal does not seem to pass constitutional muster.

If anyone can point to how, if his conduct was heterosexual, it would be a criminal violation, I would be interested in the analysis.
6.4.2009 4:36am
Skyler (mail) (www):

If this was consensual heterosexual conduct, would the same result have obtained?


Of course. If he was having heterosexual conduct that was drawing the attention of the government of the host nation or personages of influence in the host nation, or were creating a scandal in the host nation, the result would have likely been the same.

And that's what the court was saying. They were very clear in that his personal perversity, per Lawrence is none of anyone's business, but that he allowed his conduct to become an issue for the host nation to hold him in disrepute and thus the US in disrepute was certainly the business of the Air Force.
6.4.2009 9:21am
Aultimer:

Skyler:

If he was having heterosexual conduct that was drawing the attention of the government of the host nation or personages of influence in the host nation, or were creating a scandal in the host nation, the result would have likely been the same.


It seems fair to say that the amount of attention received may have been heightened by the nature of the conduct and the host community's views on such conduct. However, that still

I venture that's still not a Lawrence problem, as being an occasional drunk while stationed in the UK is probably less likely to draw attention that being an occasional drunk in Saudi Arabia, which may well be conduct unbecoming.
6.4.2009 10:02am
Sid the warmonger (mail) (www):
Skyler is correct above. Even if his sexual behavior was heterosexual, he brought disrepute to the US Military (the Air Force specifically in this case).

Randy R,

I am not saying that baritones only can be officers. But yes, I am saying that something as innocent as vocal quality will end a military career. The military is not the animal it once was. Personal idiosyncracies damn well better serve your career. If not, they will end your career.

An officer must have a command presense. Any action or characteristic that can be perceived as positive makes the challenge of being a leader less demanding. Conversly, any action or characteristic that can be perceived as negative makes the leader less likely to be effective.

I began my service a long time ago. There was a squad leader in my platoon that was a little more high-strung than we were used to seeing in mid-level NCOs. His nickname quickly became "Shakey" and it was not meant as a compliment. The performance of his squad declined. He was counseled. Eventually, he was transferred out to a unit that was responsible for training. Effectively, it ended his career. BECAUSE HE WAS PERCEIVED AS A NERVOUS INDIVIDUAL.

This US Military is involved in serious business. We do not hold hands and sing "Cumbaya". The court did an admirable job of separating the nature of his act with the impact on his job performance. He was not reprimanded because he was performing homosexual acts. He was reprimanded because he was in a politically sensitive post and having public affairs that are an afront to the local population and culture.
6.4.2009 10:21am
DennisN (mail):
2cents:


He performs sodomy (the military term for oral sex) on a Turkish national while serving as a representative of the US military abroad, when he had been confronted about and knew rumors abounded, both on and off base, about his alleged heterosexual relationship with another Turkish national. I fail to see how these facts are indecorous, disgraced and dishonored him, and seriously compromised his standing as an officer.


By creating a scandal in a host country, he has made the US role there more difficult. It would theoretically not matter if it was a heterosexual or a homosexual scandal, but because of the conservative and Muslim nature of Turkish culture, a homosexual scandal would be more serious, and could potentially cause more harm to US interests.

In a case like this, US attitudes do not matter. The attitudes of the host country, where they are more restrictive than ours, would govern.

A member of the military does not have the same rights with regard to disposition of his body as does a civilian. It's an old joke, but not far from the mark, that your arse belongs to Uncle Sam. He can certainly send you off to die.

A member of the military, and more particularly an officer, is a tool of US policy, and nothing more. If CPT Harvey could not comprehend that or did not consider it significant, then he has an attitude unbecoming an officer.
6.4.2009 10:54am
Randy R. (mail):
Sid: "An officer must have a command presence'

I think I get it. Thanks.

Still, when this uneducated civilian see the phrase "conduct unbecoming a gentleman" I can't help but think of Emily Post. But then, I've spent a lot of time figuring out which fork to use....

BTW, I have a friend who was in the CIA and was involved in military matters in Europe. He told me that in Germany, there is still a whole class of nobility that controls the military. They no longer use 'von', and no one bows before them anymore, but everyone knows who they are, and they realize you can only rise just so high in the military if you are NOT part of that class.

He said it dates back centuries, when the sons of noble families, particularly the younger ones who didn't inherit, would enter the military and become high ranking officers.

I was surprised to hear that. Was that true in France even today? He said sure.

Can anyone confirm? If true, my silly joke about knowing how to pass the port might contain a grain of truth, no?
6.4.2009 11:14am
Randy R. (mail):
DennisN: "In a case like this, US attitudes do not matter. The attitudes of the host country, where they are more restrictive than ours, would govern."

I'm glad to hear that. It makes me proud that our military would actually care about the social customs of the country it is doing business in. The history of most militaries is that they don't give a damn about the place they occupy, so it sets us apart in a good way.

It should be a rule for US tourists as well.
6.4.2009 11:18am
ShelbyC:
Several people have questioned whether the result would have been the same if the conduct had been heterosexual. Can someone please explain why, from a legal standpoint, that matters? Based on the standards used here it seems that they could punish homosexual conduct more severly if such conduct brought greater disrepute to the military, right? And there's nothing in Laurence that requires equal treatment for gay conduct, correct?
6.4.2009 11:30am
Joe T. Guest:
Let's see - would a U.S. officer on a small but high profile installation in a deeply conservative Muslim country get punished for having sex, outside of marriage, with a host nation female, and creating a minor scandal on the airbase (shared with host nation military personnel) and off? Um, yeah, I think he just might get court martialled. That's totally asking for a diplomatic incident, just horrendous judgment.

When I was on active duty I knew two officers in separate brigades who were cashiered for having a heterosexual relationship in violation of the division's strict no-fraternization policy for officers. I don't recall anybody in my unit, enlisted or officer, thinking that was unfair. To people who serve, it's self-evident that leaders at any level have to display good character and good judgment at all times, and that includes exercising discretion. Somebody who breaks the rules (I'm betting the liaison violated host nation law) or just as bad displayed bad judgment by being indiscreet in the rulebreaking, isn't fit to lead.
6.4.2009 12:11pm
Gopherstate (mail):
The Court cited a variety of factors that contributed to "conduct unbecoming," but I am disheartened, because I feel that same-sex sodomy was the overriding factor. The facts at issue include:

1. Multiple sexual partners
2. Presence and representation in a foreign country
3. Rumors of his sexual activities on base and in community
4. Consternation of Turkish National
5. Video-taped act of same-sex sodomy
6. Additional reports of same-sex sodomy

It would seem to me that the court martial panel took into consideration all of these factors and under the totality of the circumstances, determined it was conduct unbecoming. I would be interested in seeing the instructions this judge gave to the CM panel regarding how to consider the sodomy. I think evidence of same-sex sodomy in a case like this would be highly prejudicial as a CM panel would likely give much greater weight to the fact that same-sex sodomy was involved than to the other factors.

The Air Force probably would not have prosecuted this case if there was not same-sex sodomy involved. That is because there would not be the "ick" factor involved. In the military setting, rumors and allegations of homosexuality and/or homosexual acts automatically bring discredit upon an officer or NCO, who is expected to lead. Don't Ask/Don't Tell reinforces this by creating a presumption in the ranks that gays and lesbians are not supposed to be there, because Congress said so. Gays and lesbians in military service are "against good order and discipline" accoring to the law. So the chaplain's effectiveness as a leader is put into doubt in this case. If he had been involved with two local women, it may not be so damning, maybe only warranting a stern counseling. Even then, because of Don't Ask/Don't Tell, he likely had to keep his relationships with these men on the down-low, making the whole thing look a lot shadier and demeaning to his character in the end. If he could have been open, much of the controversy could have been averted. Thus, really I think we have another victim of Don't Ask/Don't Tell.
6.4.2009 12:28pm
Putting Two and Two...:
Men having sex with men in Turkey!?! STOP THE PRESSES!!!

Some of these posts are really remarkable.

Try explaining what a "scandal" this was but use words like "date" instead of "commit sodomy". There is nothing in the record that shows anything more scandalous than a man dating two cousins, first one, then the other, over a period of months. That happens to be how my aunt met my uncle, and, yes, he was an Air Force officer. But not in a allied nation, instead it was an occupied nation. Of course, in her case, Cousin 1 didn't feel slighted enough to videotape Cousin 2 in flagrante delicto. It was also long enough ago that she would have had to employ a sketch artist and not a camera.

There is nothing in this record that can't be explained by a jilted Cousin 1 seeking revenge.

As for the scandal and rumor on base, what do you suppose was being rumored? That an officer was dating a "foreign national"? A second "foreign national"? Or might it have been the gender of the "foreign national" that caused the rumor mills to turn? Or, perhaps, that combined with his being a chaplain?

And, finally, I love the characterization of Ircirlik as though it were some sort of Falluja. Incirlik has been a U.S. base for almost 60 years in what is now an NATO ally. If U.S. soldiers aren't supposed to fraternize with "foreign nationals" at our European bases, why all the bars and dance clubs outside the gate?
6.4.2009 1:27pm
Dan Hamilton:
Gopherstate, I think your agenda is getting in the way.

This is Turkey we are talking about. Some father or husband making a racket would be just as bad.

If an officer messes up in a Host country he can easily be toast. Doesn't matter what he did. If the Host country is making noise and it is at all reasonable. Vid of him having sex with anybody would do it let alone if the vid was taken in any sort of a public place.

Once the rumers appeared, his lack of judgement condemmed him. Doesn't matter what the conduct was.

Does the Homo part make it worse? Yes, it was in Turkey and the act there was a bigger deal then say in Holland.

The military is trying real hard to be fair to Gays while maintaining the military culture. And no matter what civilians thing that military culture is very very important. Without it you have civilians in uniform and when the fighting starts many die while the military culture is reformed.
6.4.2009 1:50pm
DennisN (mail):
Randy R.:


It should be a rule for US tourists as well.


I'll drink to that, although IMX US tourists are not the worst. There's a lot of room at that end of the scale, and none of it is pretty.
6.4.2009 1:52pm
2cents (mail):
Many problems with the above analyses.


DennisN:
By creating a scandal in a host country, he has made the US role there more difficult. It would theoretically not matter if it was a heterosexual or a homosexual scandal, but because of the conservative and Muslim nature of Turkish culture, a homosexual scandal would be more serious, and could potentially cause more harm to US interests.




All of this may be true. However, the crime charged was not "making the US role more difficult." It was conduct unbecoming. Now, this gets into technical matters, but I suspect that the charge sheet either stated that he was guilty of the specification due to either having committed sodomy with a foreign national OR it would have listed all the factors stated earlier (rumors of other homosexual affairs, occurring while abroad, and while representing the US Government and this was conduct unbecoming) If it were the latter, the Government would have to prove each of these as an element of the crime, beyond a reasonable doubt, and any failure of the elements results in an aquittal. I fail to see how this would be illegal, even if true. How can you be held criminally culpable for having sex with person A while there are rumors of sex with person B?

Pay attention to two things in this decision. The court acknowledges that this is a case of first impression. And the analysis basically says that as a matter of law it is possible for protected conduct to be nonetheless criminal, then the lists a number of specific facts (which, admittedly
it is unclear if they were charged as part of the offense, but I think they would have to have been) and then states that the panel (jury) found a violation of Art. 133,and therefore the offense charged does not violate the constitution. The court misses separating the specific inquiry of whether the conduct, as a matter of law, is constitutionally protected, and jumps only to the analysis of what the panel found. The court's analysis is not clear. I am not sure if this is because the matter was not raised on appeal or if they simply ignored the issue.



Sid: "Even if his sexual behavior was heterosexual, he brought disrepute to the US Military (the Air Force specifically in this case)."


Sid, that sounds like he should have then been charged under Art. 134:

60. Article 134—General article
a. Text of statute.
Though not specifically mentioned in this chapter,all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital,of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general,special, or summary court-martial, according
to the nature and degree of the offense, and shall
be punished at the discretion of that court."

However, I think it would clearly be unconstitutional to charge someone with private consensual homosexual conduct (which is constitutionally protected, even in the military) under Art. 134. See Marcum.


Joe T. Guest:
"When I was on active duty I knew two officers in separate brigades who were cashiered for having a heterosexual relationship in violation of the division's strict no-fraternization policy for officers."


Right, and all of that may be true. However, the point is that conduct would have been a violation of a lawful order or regulation, not Conduct Unbecoming.

My point is not to engage is general questions about whether Capt Harvey exercised poor judgment, etc. It is strictly on the legal analysis of whether a conviction under Art. 133 should be affirmed. I think the court got this wrong.
6.4.2009 1:56pm
2cents (mail):
For you law geeks like me, you may be interested in knowing that in military law, you have a right to an appeal with assistance of a Government attorney. Because of this, ineffective assistance of counsel holds at the appellate stage, too.


United States v. Brooks, 66 M.J. 221 (in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; the Supreme Court has extended the right to counsel to first appeals guaranteed as a matter of right; in military jurisprudence, an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the CCA and the CAAF by appellate counsel appointed under Article 70, UCMJ).




So, if the lawyers messed this up, I think there is an IAC claim out there. If the court did, then as normal, there are other appeals.
6.4.2009 3:09pm
PubliusFL:
Putting Two and Two: That happens to be how my aunt met my uncle, and, yes, he was an Air Force officer. . . . It was also long enough ago that she would have had to employ a sketch artist and not a camera.

What period of history is recent enough to have Air Force officers yet long enough ago to not have cameras?
6.4.2009 4:05pm
DennisN (mail):
2cents:


All of this may be true. However, the crime charged was not "making the US role more difficult."


That would fall under "Conduct Unbecoming." He failed to behave in an ostensibly moral manner in a country where morals are considered important. An officer and a gentleman should not do so, as it is contrary to his military mission.

Exercising publicly poor judgment is Conduct Unbecoming.

Stupidity may not be a civilian crime but it can be Conduct Unbecoming or Art 134.

It may be that he was charged with Conduct Unbecoming because it was considered to be a lesser offense. In wartime, violation of orders can be capital, although in this case the maximum would be Life. It's considered a really big deal. Conduct Unbecoming is usually a "kick him out" offense. In this case, the commanding officer reduced the sentence, as is his prerogative, to a reprimand. He'll probably never make major and would be separated for failure to be promoted, but that gets him out with no stain on his civilian record.

The way the military works, even if he was acquitted, he would probably never be promoted.

As far as the court's analysis, you make a convincing argument that they did a sloppy job.
6.4.2009 4:05pm
ShelbyC:

...but that gets him out with no stain on his civilian record.


Actually, what could the max punishment have been? If he could have been incarcerated for > 1 year, does that make him a convicted felon for purposes of possessing guns, etc?

And which states does he have to register as a sex offender in?
6.4.2009 4:13pm
DennisN (mail):
It appears that damnear any violation of the UCMJ, including littering, could be charged as a felony.


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.


Every punitive article can be punished "as a court-martial may direct," with death being added to some articles. Being caught as a spy carries mandatory death.

It all comes down to the type of court martial convened. A General Court Martial is empowered to impose the death penalty if permitted by the punitive article charged, so every GCM referral is a felony.

A Special Court Martial, the next lower grade, cannot impose a punishment of confinement for more than one year, so a SpCM charge would not be a felony.

Since CPT Harvey was brought before a GCM, that makes it a felony charge. I guess he's screwed by anything less than an acquittal, as from a practical POV, there is no such thing as a misdemeanor at a CGM.
6.4.2009 5:13pm
Putting Two and Two...:

What period of history is recent enough to have Air Force officers yet long enough ago to not have cameras?


Post-WWII, occupied Italy. And it wasn't that the period didn't have cameras, it was that they were not available to my aunt (the one my uncle didn't marry), largely because everything the family owned had been lost in the war.

Sorry for the confusion.
6.4.2009 5:26pm
2cents (mail):
DennisN,

I appreciate your response. I disagree with most of it, but at least you wrote something civil.

I served as a Army Senior Trial Counsel (prosecutor) for a two-star command for three years and as a military magistrate for another year, which is not to say, "believe me because I said so," but to put my comments into context.

Court-Martials are of limited jurisdiction. They only have power to try offenses referred to them by the Convening Authority. So, it is very important that the charges be correct. If no crime is alleged in the charging document, then there is no crime.


"That would fall under "Conduct Unbecoming." He failed to behave in an ostensibly moral manner in a country where morals are considered important. An officer and a gentleman should not do so, as it is contrary to his military mission.

Exercising publicly poor judgment is Conduct Unbecoming."


I truly understand what you are saying. But it is not legally accurate. "Failing to behave in an ostensibly moral manner" anywhere, by itself, is not a crime. Whether one should or should not is a matter of professionalism and military values, but not doing so by itself, is not a crime, but may be basis for administrative separation or poor evaluation reports. Same with Exercising "poor judgment."


"It may be that he was charged with Conduct Unbecoming because it was considered to be a lesser offense. In wartime, violation of orders can be capital, although in this case the maximum would be Life. It's considered a really big deal."


Whatever the reason for selection of this charge (I think it was a poor choice in the first place to charge this as a crime), if it is a defective charge, then it is still not a crime. There was no reference to violation of an order, and this is not a sentencing case (i.e., the issue is not the appropriateness of the sentence, but rather the legality of the conviction).



Conduct Unbecoming is usually a "kick him out" offense. In this case, the commanding officer reduced the sentence, as is his prerogative, to a reprimand. He'll probably never make major and would be separated for failure to be promoted, but that gets him out with no stain on his civilian record.


Conduct Unbecoming on its own is a relatively rare charge. It is usually added on for tactical reasons to an underlying offense. It is often put in to give something to bargain with for a guilty plea. But you have to watch out for "piling on" and multiplicity for charging substantially the same conduct twice.

Well, the conviction is still on his "record." Reporting requirements, etc., vary based on the purpose, but as it stands, this was a conviction by a General Court Martial.
Separation based on misconduct can be a basis for denial of a number of benefits and job opportunities. It is sufficiently damaging to the property interest in a good name to invoke due process protections.


The way the military works, even if he was acquitted, he would probably never be promoted.

Agreed. But, if this conviction is overturned, and he is denied promotion, it is very much in question if he could get promoted and/or retired via appeals to AF Board for Correction of Military Records and/or Court of Federal Claims. There are a number of cases where this has been the result of an overturned conviction.
6.4.2009 6:04pm
2cents (mail):
Capital cases must be referred as a Capital Case. So, not all GCMs have the death penalty as a possible punishment, even if the punitive article allows for it. Remember, these are courts of limited jurisdiction. Failure to refer as a capital case deprives the court martial of the power to adjudge that penalty.
6.4.2009 6:13pm
DennisN (mail):
2cents:


I appreciate your response. I disagree with most of it, but at least you wrote something civil.


I have a lot of respect for this board. I try to save being an a'ole for other boards. ;-) If we all agreed, we wouldn't be here.


I served as a Army Senior Trial Counsel (prosecutor) for a two-star command for three years and as a military magistrate for another year, which is not to say, "believe me because I said so," but to put my comments into context.


That certainly gives what you say more weight than a grunt officer like me.


"Failing to behave in an ostensibly moral manner" anywhere, by itself, is not a crime.


The offense of "Conduct Unbecoming," much like the "Any Other Conduct" are not defined in the UCMJ. It would be up to the Court to decide if the specifications met the meaning of the term. I argue that creating scandal is Conduct Unbecoming an Officer.
6.5.2009 12:00am
2cents (mail):
DennisN,



The offense of "Conduct Unbecoming," much like the "Any Other Conduct" are not defined in the UCMJ. It would be up to the Court to decide if the specifications met the meaning of the term. I argue that creating scandal is Conduct Unbecoming an Officer.


The first part, I disagree with...Conduct Unbecoming is defined (see my post of the text of the article). But, it is not defined as specific conduct, but any conduct that "seriously compromises the person's standing as an officer." So, you could say that it is a facts and circumstances type call versus clearly defined conduct.

When you say that it would be up to the Court to decide whether the meaning is met, this raises a very important point. The distinction is between whether the conduct charged, can, as a matter of law, be a crime. This would be a question for the military judge to decide. Whether the conduct occurred and if it rose to that level of compromising the accused status as an officer is a question of fact for the panel (jury).

So, I am not arguing about whether the panel was correct that the accused actually engaged in the conduct that the court martial found or that it may have been scandalous (though, I do agree that there are plausible circumstances where the conduct would be Conduct Unbecoming, though in those cases, almost certainly Sodomy or 134 would be the better charge). I just think that as a matter of law, the conduct charged in this case cannot be criminal.

This case is going to be reviewed by the Court of Appeals for the Armed Forces, and I think you will see a reversal.

I was enlisted, briefly, as an 11B, and then after my commission, I served as a Trans. Company Commander (1st COSCOM) at Ft. Bragg. After that, I transferred to the JAG Corps. I can tell you, I much preferred serving in a line Company than in the JAG Corps.
6.5.2009 1:40am

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