This opinion is subject to administrative correction before final disposition.

Before 

MONAHAN, STEPHENS, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Joseph R. NELSON

Lieutenant Commander (O-4), U.S. Navy

Appellant

No. 201900239

Argued: 28 January 2021

Decided: 8 February 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:

Arthur L. Gaston III

Sentence adjudged 10 May 2019 by a general court-martial convened 

at Naval Support Activity Naples, Italy and Naval Station Norfolk, 

Virginia, consisting of members. Sentence approved by the convening 

authority: forfeiture of $7,596 pay per month for four months and a 

dismissal.1

 

1 The convening authority’s approval of the sentence contained the following caveats: (a) the duration of the adjudged forfeitures shall be reduced by five days per 

the military judge’s ruling under R.C.M. 305(k), and (b) for any pay to which the 

adjudged forfeitures apply, the amount of the forfeiture applicable to such pay shall 

not exceed two-thirds of such pay.
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

2

For Appellant: 

Major Anthony M. Grzincic, USMC (argued)

For Appellee: 

Lieutenant John L. Flynn, JAGC, USN (argued)

Lieutenant Jennifer Joseph, JAGC, USN (on brief)

Major Kerry E. Friedewald, USMC (on brief)

Chief Judge MONAHAN delivered the opinion of the Court, in which 

Senior Judge STEPHENS and Judge DEERWESTER joined.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

MONAHAN, Chief Judge:

Appellant was convicted, contrary to his pleas, of unauthorized absence 

terminated by apprehension, conduct unbecoming an officer (cohabitating 

with known prostitutes and knowingly making a false statement regarding 

his active duty / mobilization status), and patronizing prostitutes, in violation 

of Articles 86, 133, and 134, Uniform Code of Military Justice [UCMJ].2

Appellant asserts four assignments of error [AOE]: (1) the military judge, 

after finding that the Naval Criminal Investigative Service [NCIS] violated 

Article 31(b), UCMJ, suppressed his statement as to one charged offense, but

erroneously allowed the Government to introduce the statement at trial to 

prove the remaining offenses; (2) Charge III, Specification 2, failed to state an 

offense because the Government did not incorporate all the elements of 

Article 107, UCMJ, into the specification, but then relied on the missing 

elements to prove that the conduct was unbecoming an officer; (3) the Government failed to present legally and factually sufficient evidence with 

regard to the Article 133 offense in Charge III, Specification 2; and (4) the 

sentence was inappropriately severe. We ultimately find that there was 

legally insufficient evidence independent of a specific enumerated offense to 

sustain Appellant’s Article 133 conviction charged in Charge III, Specification 

2. Therefore, we set aside this conviction and reassess the sentence.

 

2 10 U.S.C. §§ 886, 933, 934.
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

3

I. BACKGROUND

In October of 2017, Appellant, a Navy Reservist, took active duty orders 

to Bahrain, to serve on the staff of Commander, U.S. Naval Forces Central 

Command [COMUSNAVCENT], for a year. During his time there, he patronized and eventually befriended several Thai prostitutes. When these women 

sought to escape their negative living situations, they moved in with Appellant and lived in his government-funded housing at various times over the 

course of several months. In exchange for not paying rent, the women cooked 

and cleaned for Appellant. 

In January 2018, NCIS special agents interviewed Appellant as part of a 

prostitution and sex trafficking investigation in Bahrain. Although the 

agents provided Appellant an Article 31(b) rights advisement for patronizing 

prostitutes, they did not warn him that he was also suspected of failing to 

report the prostitution and sex trafficking-related misconduct of other Service 

Members. Throughout the interview, the agents downplayed the gravity of 

Appellant’s personal misconduct and indicated they were more interested in 

using his information against other Service Members involved in sex trafficking. The interview lasted approximately two hours, and included two short 

breaks. The tenor of the interview was conversational and Appellant pushed 

back at various points when he disagreed with the agents’ characterizations 

or implications that he was not telling the truth.

Immediately following his interview, NCIS searched Appellant’s residence 

and found evidence that Thai prostitutes were living with him. Months later, 

in May 2018, NCIS again searched his residence and found evidence, to 

include a Thai woman hiding behind a bedroom door, that Appellant was still 

cohabitating with prostitutes.

Although Appellant was to remain in Bahrain through September 2018 

on his original orders, he was redeployed early and was sent to the Navy 

Operational Support Center [NOSC] New York City in early May 2018, 

following the second search of his residence in Bahrain. From May to midJune, Appellant reported to that command periodically in-person and completed regular phone musters with his chain of command, as required. However, once it became clear that he would be attached to the NOSC for a longer 

period than initially thought, Appellant’s commanding officer, Captain (O-6) 

[CAPT] Sierra,3 called him into her office on 15 June to discuss his com-

 

3 All names in this opinion, other than those of the judges and counsel, are pseudonyms.
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Opinion of the Court

4

mencement of a regular, in-person work schedule. At that meeting,

CAPT Sierra told Appellant to report the following Tuesday morning, 19 

June, for what was to be his first full day of work. However, Appellant failed 

to report on that date, and then did not answer multiple phone calls and 

emails from CAPT Sierra and her executive officer. Still not hearing anything 

from Appellant, the following day CAPT Sierra completed a Dep’t of Def., 

Form 553, Deserter / Absentee Wanted by the Armed Forces (Mar. 2015),

declaring Appellant in an unauthorized absence status and filed a missing 

person’s report with the New York Police Department. After receiving information from the police, CAPT Sierra declared Appellant a deserter on 21 

June. Appellant’s chain of command continued to attempt to make contact 

with Appellant via telephone and email until 9 July, when the United States

Marshals Service apprehended Appellant at his apartment in New York City.

The Marshals Service brought Appellant to be detained at U.S. Army 

Garrison Fort Hamilton, New York. There, Appellant met Investigator [Inv.]

India, a detective with the Department of the Army Police, who was responsible for facilitating the return of deserters and Service Members who were 

absent without leave to their respective Army installations or other Military 

Service. When Inv. India introduced himself to Appellant and told him that

he was being detained on a deserter warrant, Appellant replied that he did

not understand because he had already fulfilled his obligation and was no 

longer in an active duty status. Inv. India did not engage in further conversation with Appellant on the issue. Rather, he said that Appellant would need 

to take up his assertion with his unit that he was no longer on active duty.

II. DISCUSSION

A. Voluntariness Requirements and Article 31(b) Warnings

We review the denial of a motion to suppress under an abuse of discretion 

standard.4 When considering a military judge’s ruling on a motion to suppress under Article 31(b) we apply a clearly-erroneous standard of review to 

findings of fact and a de novo standard to conclusions of law.5

1. Contours of voluntariness requirements and Article 31(b) Warnings

An involuntary statement of an accused, or evidence derived therefrom, is 

generally inadmissible at trial, provided the accused makes a timely motion 

 

4 United States v. Simpson, 54 M.J. 281, 283 (C.A.AF. 2000).

5 United States v. Norris, 55 M.J. 209, 215 (C.A.A.F. 2001).
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

5

to suppress or other objection to its use.6 Once the defense has made an 

appropriate motion or objection, the government bears the burden of establishing the admissibility of the evidence by a preponderance of the evidence.7

An “involuntary statement” is a statement “obtained in violation of the 

self-incrimination privilege or Due Process Clause of the Fifth Amendment, 

Article 31, or through use of coercion, unlawful influence, or unlawful inducement.”8

Whether a statement is voluntary from a constitutional perspective requires an inquiry as to whether it was a product of an essentially free and 

unconstrained choice by its maker.9 “If, instead, the maker’s will was overborne and his capacity for self-determination was critically impaired, use of 

his confession would offend due process.”10 This inquiry involves an assessment of “the totality of the circumstances—both the characteristics of the 

accused and the details of the interrogation.”11 Factors to be examined in this 

regard include “rights warnings; the length of the interrogation; the characteristics of the individual including age and education; and the nature of the 

police conduct, including threats, physical abuse, and incommunicado detention.”12

Article 31(b) prohibits interrogations of Service Members accused of a 

crime without first advising them of “the nature of the accusation.”13 The 

purpose of this rights advisement is to “orient the accused” to the nature of 

the offenses so as to allow him to intelligently weigh the consequences of 

responding to an investigator’s inquiries.14

Sometimes, a suspect receives proper warnings under Article 31 with regard to one offense or incident but inadequate warnings as to another offense 

 

6 Mil. R. Evid. 304(a).

7 Mil. R. Evid. 304(f)(6)-(7).

8 Mil. R. Evid. 304(a)(1)(A).

9 United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996).

10 Id. (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). 

11 Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

12 United States v. Sojfer, 47 M.J. 425, 429-30 (C.A.A.F. 1998) (internal citations 

omitted).

13 10 U.S.C. § 831.

14 United States v. Reynolds, 16 C.M.A. 403, 405 (C.M.A. 1966).
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

6

or incident. If the suspect subsequently makes an otherwise voluntary statement, military courts have held that although such a statement is inadmissible as to unwarned offenses, it is admissible vis-à-vis the warned offenses. 

Recently, in United States v. Blanton, in the context of resolving a claim of 

ineffective assistance of counsel, this Court held that where the appellant 

made inculpatory statements with regard to unwarned bribery allegations in 

addition to inculpatory statements to other, warned offenses, only his statements regarding the bribery allegations were inadmissible.15 Similarly, in 

United States v. Willeford,16 the appellant was warned by an Air Force Office 

of Special Investigations [AFOSI] agent that he was suspected of committing

rape against a female Airman in her dormitory room, but was not warned of 

housebreaking and indecent exposure offenses with regard to another female 

Airman in the same dormitory, despite the fact that the AFOSI agent suspected Willeford had committed these other offenses. At trial, the military 

judge admitted the appellant’s statements against him without limitation.17

On appellate review, the Air Force Court of Military Review [AFCMR] held 

that the appellant’s inculpatory statements concerning the housebreaking 

and indecent exposure offenses involving the non-rape victim were obtained 

in violation of Article 31 and, thus, inadmissible.18 However, to remedy this 

violation of the appellant’s rights, the AFCMR only set aside the appellant’s 

convictions with regard to housebreaking and indecent exposure offenses, and 

did not disturb his convictions for rape and related offenses involving the 

other female Airman.19

2. The military judge did not abuse his discretion by suppressing Appellant’s statements as to one charged offense but allowing the Government to use 

it at trial to prove the remaining offenses to which the statement pertained

In this case, the military judge found that Appellant’s Article 31(b) rights 

were violated. Specifically, the military judge found that the warning provided by NCIS—that Appellant was suspected of patronizing prostitutes under 

Article 134—was insufficient to orient him toward the fact that he was 

suspected of the crime of conduct unbecoming for his failure to report the 

 

15 United States v. Blanton, 2019 CCA LEXIS 198, at *28 (N-M. Ct. Crim. App. 

May 8, 2019) (unpublished).

16 5 M.J. 634, 635 (A.F.C.M.R. 1978).

17 Id. at 635.

18 Id. at 636.

19 Id. at 636-37.
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

7

prostitution and sex trafficking-related misconduct of others. Accordingly, the 

military judge ruled Appellant’s statements inadmissible to prove that 

offense. Moreover, because the Government’s proof for that offense relied 

upon Appellant’s statements, the military judge dismissed the specification 

with prejudice.

However, the military judge also ruled that the warnings NCIS provided 

Appellant properly oriented him to other offenses of which he was later 

charged, to include the conduct unbecoming offense for cohabitating with 

known prostitutes and the patronizing prostitutes offense for which he now 

stands convicted. Therefore, the military judge permitted Appellant’s unredacted statements to NCIS to be admitted into evidence as evidence 

against him on those offenses.

Appellant argues on appeal that the military judge erred by suppressing 

his statements only as to the unwarned offense. He asserts that if an investigator warns a military suspect of some but not all offenses for which he is 

suspected, his statements must be suppressed as to all offenses. We disagree.

As an initial matter, we agree with the military judge, that but for the 

NCIS special agents’ failure to warn Appellant that he was suspected of 

conduct unbecoming for his failure to report the prostitution-related activities 

of other Service Members, Appellant’s statements to NCIS were otherwise 

voluntary under the totality of the circumstances. In reaching this conclusion, 

we adopt the military judge’s findings of fact as our own. 

The interrogation itself, including breaks, lasted less than two hours and 

was conversational throughout. The agents principally used rapport-building 

with Appellant as a means of getting him to talk, which is permissible under 

the law. Although the agents minimized at times and did confront and 

challenge Appellant, particularly during the second half of the interrogation, 

there is no indication that in doing so they overbore his will. To the contrary, 

throughout the interrogation, Appellant spoke intelligently and candidly, 

repeatedly demonstrating his ability to stand his ground and not provide 

further information even when confronted with the agents’ stated belief that 

he was either lying or at least not being sufficiently forthcoming. A college 

educated, thirty-three-year old lieutenant commander with a background in 

finance as a civilian, Appellant stated multiple times during the interrogation that he had agreed to talk because he had nothing to hide, and his lucid, 

detailed admissions in no way suggested that he was simply parroting back 

words that the agents put in his mouth. The facts and circumstances revealed 

in the interrogation are in no way suggestive of psychological coercion or 

other factors amounting to unlawful influence or coercion. We therefore 

conclude, as did the military judge, that Appellant’s admissions were the 
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Opinion of the Court

8

product of an essentially free and his unconstrained choice, and were, thus, 

voluntary.20

Likewise, we find that the military judge did not abuse his discretion 

when he permitted Appellant’s statements to be admitted as evidence against 

him with regard to offenses of which he was properly oriented.21 Appellant’s 

statements were voluntary with regard to both the Fifth Amendment Due 

Process Clause and Article 31(b) for these offenses. Thus, to hold that Appellant’s statement must be suppressed as to these warned offenses would be to 

confer upon him an unwarranted windfall inconsistent with public policy.22

Our holding on this issue is strengthened by this Court’s recent, albeit 

unpublished, holding in Blanton23 and the AFCMR’s holding long ago in 

Willeford.24

B. Charge III, Specification 2—Conduct Unbecoming for False Statement

1. Sufficiency of a specification generally

Whether a specification states an offense is a question of law, which we 

review de novo.25 The military is a notice pleading jurisdiction.26 A specification is sufficient if it “alleges every element of the charged offense expressly 

 

20 See Bubonics, 45 M.J. at 95 (quoting Bustamonte, 412 U.S. at 226).

21 Appellant argues that, despite the military judge’s curative action of dismissing the conduct unbecoming an officer specification related to his failure to report his 

knowledge of the prostitution and sex-trafficking related misconduct, the military 

judge abused his discretion by admitting Appellant’s entire statement without 

excising inadmissible portions. Assuming arguendo that the military judge did err in 

this regard, we find any such error to be harmless under the facts and circumstances 

of this case. Specifically, because failure to report the misconduct of another is not 

prima facie evidence that Appellant had bad character or a criminal predisposition, 

we discern no prejudice to him with regard to the findings or sentence.

22 “Voluntary confessions are not merely a proper element in law enforcement, 

they are an unmitigated good essential to society's compelling interest in finding, 

convicting, and punishing those who violate the law.” Maryland v. Shatzer, 559 U.S. 

98, 108 (2010).

23 See Blanton, 2019 CCA LEXIS 198, at *28.

24 See Willeford, 5 M.J. at 635-36.

25 United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006).

26 United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011).
United States v. Nelson, NMCCA No. 201900239

Opinion of the Court

9

or by necessary implication.”27 This rule encompasses the due process notice 

requirement.28 Defective specifications implicate an accused Service Member’s constitutional right to notice.29

“A charge and specification will be found sufficient if they, ‘first, contain[ ]

the elements of the offense charged and fairly inform[ ] the [accused] of the 

charge against which he must defend, and second, enable[ ] him to plead an 

acquittal or conviction in bar of future prosecutions for the same offense.’ ”30

Due process requires “fair notice” that an act is forbidden and subject to 

criminal sanction.31 The Court of Appeals for the Armed Forces [CAAF] has 

found such notice in the Manual for Courts-Martial [MCM], federal law, state 

law, military case law, military custom and usage, and military regulations.32

Due process also requires fair notice as to the standard applicable to the 

forbidden conduct.33

2. Changes to specifications

The Rule for Courts-Martial [R.C.M.] 603(a) provides that “[m]inor 

changes in charges and specifications are any except those which add a party, 

offenses, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses 

charged.”34 The R.C.M. 603(a) Discussion clarifies what constitutes a minor 

change and includes, inter alia, “those [changes] necessary to correct inartfully drafted or redundant specifications; to correct a misnaming of the accused; 

to allege the proper article; or to correct other slight errors.”

 

27 R.C.M. 307(c) (3).

28 Folsler, 70 M.J.at 229. 

29 Id. at 233.

30 Id. at 229 (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)).

31 United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003).

32 Id.

33 Parker v. Levy, 417 U.S. 733, 755 (1974); Vaughan, 58 M.J. at 31.

34 R.C.M. 603(a).
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In United States v. Reese, CAAF reiterated that a change is minor so long 

as “no additional or different offense is charged . . . and if substantial rights 

of the [accused] are not prejudiced.”35 The court went on to enunciate:

The first prong usually is satisfied if the charge is altered to 

allege a lesser-included offense . . . .

. . . The second prong is satisfied if the amendment does not 

cause unfair surprise. The evil to be avoided is denying the [accused] notice of the charge against him, thereby hindering his 

defense preparation.36

3. Article 133

Article 133 contains two 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 a gentleman.37

The focus of Article 133 is the effect of the accused’s conduct on his status 

as an officer, cadet, or midshipman:

[T]he essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense . . . but 

simply whether the acts meet the standard of conduct unbecoming an officer. . . . [T]he appropriate standard for assessing 

criminality under Article 133 is whether the conduct or act 

charged is dishonorable and compromising . . . this notwithstanding whether or not the act otherwise amounts to a 

crime.38

Article 133 can cover “acts made punishable by any other article, provided 

these acts amount to conduct unbecoming.”39 Whenever the offense charged is 

the same as a specific enumerated offense charged in the MCM, the elements 

of proof are the same for that specific offense plus proof that the conduct was 

 

35 76 M.J. 297, 300 (C.A.A.F. 2017) (quoting United States v. Sullivan, 42 M.J. 

360, 365 (C.A.A.F. 1995)) (ellipsis in original).

36 Id. (quoting Sullivan, 42 M.J. at 365) (ellipses in original).

37 MCM, pt. IV, para. 59.b. (2016 ed.).

38 United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2007) (quoting United 

States v. Giordano, 35 C.M.R. 135, 140 (C.M.A. 1964)).

39 MCM, pt. IV, para. 59.c(2).
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Opinion of the Court

11

unbecoming.40 On the other hand, the underlying act or omission does not 

have to independently amount to an offense.41 Rather, “the appropriate 

standard for assessing criminality under Article 133 is whether the conduct 

or act charged is dishonorable and compromising . . . notwithstanding whether or not the act otherwise amounts to a crime.”42 Moreover, Article 133 is not 

subject to the preemption doctrine in the way that Article 134 offenses are.43

For a conviction under Article 133 to stand on its own apart from a specific enumerated offense, “the government must present a theory of liability at 

trial and prove how the conduct exceeded the ‘limit of tolerance based on 

customs of the service,’ MCM, pt. IV, ¶ 59.c.(2) notwithstanding—that is, 

independent of—whether it constituted a specific [enumerated] offense.”44

4. The Article 133 offense at issue stated an offense, but the evidence was 

legally insufficient to prove that Appellant’s conduct was unbecoming notwithstanding whether it amounted to a specific enumerated offense

During pre-trial motions, Appellant moved to dismiss an Article 133 specification for failure to state an offense–knowingly making a false statement to 

Inv. India. He argued the specification only partially incorporated the Article 

107 offense, because it omitted elements that the statement was official and 

that it was made with the intent to deceive. This motion appeared to directly 

address the position taken by the Government at an earlier motion session 

during which a Defense motion to dismiss for multiplicity / unreasonable 

multiplication charges was litigated. During that earlier motion session, the 

Government asserted that the Article 133 specification at issue intended to 

incorporate all the elements of the Article 107 offense.

However, in the face of this logical argument by the Defense that the Article 133 offense as charged did not include all the elements of an Article 107 

false official statement offense, the Government appeared to change its 

charged theory of criminality with regard to the Article 133 false statement 

offense. Specifically, the trial counsel argued in response that this specifica-

 

40 Id.

41 United States v. Livingstone, 78 M.J. 619, 624 (C.G. Ct. Crim. App. 2018).

42 United States v. Schweitzer, 68 M.J. 133, 137 (C.A.AF. 2009) (quoting 

Giordano, 35 C.M.R. at 140.)

43 MCM pt. IV, para. 60.c(5)(a); see also United States v. Taylor, 23 M.J. 314, 318 

(C.M.A. 1987).

44 Livingstone, 78 M.J. at 624-25.
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Opinion of the Court

12

tion was not designed to mirror Article 107. Rather, he asserted it was 

charged in this manner to account for contingencies of proof with respect to 

the charged Article 107 offense. The military judge denied Appellant’s motion. Appellant was subsequently convicted of this Article 133 offense but was 

acquitted of the Article 107 offense arising from the same act.

On appeal, Appellant argues that the Government’s theory at trial relied 

on incorporated elements from Article 107, contrary to its assertions during 

the motions session that addressed this issue. Specifically, Appellant argues 

that because “the [G]overnment disclaimed the conduct’s ‘official nature’ and 

the ‘intent to deceive,’ the [D]efense was led to believe the conduct was 

unbecoming in some other way.”45 Moreover, Appellant asserts that at trial, 

“the [G]overnment relied on the official nature of the statement, and deceptive intent in proving the conduct was unbecoming,” and thus, he was not on 

notice of the nature of the Article 133 offense.46

As an initial matter, the specification at issue was charged as follows:

In that [Appellant], U.S. Navy, Naval Operational Support 

Center, New York City, on active duty, did on or about 9 July 

2018, at or near United States Army Garrison, Fort Hamilton, 

New York, make to Investigator [India], a statement, to wit: 

that the said [Appellant] was not on active duty and had completed his mobilization, or words to that effect, which statement was false, and was then known by the said [Appellant] to 

be so false, and that under the circumstances, these acts and 

omissions constituted conduct unbecoming an officer.47

Written as such, the specification stated an offense on its face, because it 

alleged (1) that Appellant did a certain act; and (2) that under the circumstances, this act constituted conduct unbecoming an officer and a gentleman.48 Although the Government initially advanced a different theory of 

criminality embodied by the Article 133 conduct unbecoming specification, 

before trial it ultimately espoused the theory that is reflected by the words of 

the specification itself. Specifically, the Government settled on the theory 

that the specification at issue was not intended to directly mirror the Article 

 

45 Appellant’s Br. at 33 (emphasis in the original).

46 Id.

47 Charge Sheet, Charge III, Specification 2.

48 See MCM pt. IV, para. 59.b.
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Opinion of the Court

13

107 false official statement offense on the charge sheet, but rather was 

charged to account for contingencies of proof with respect to that specific 

offense. Thus, as a matter of law, it was not necessary for the Government to 

include all the elements of the Article 107 offense in the Article 133 specification to properly state an offense. At most, the Government’s shifting of 

theories of criminality constituted a permissible minor change.

Before trial, the Government did inform the trial Defense team that the 

Article 133 offense was meant to account for contingencies of proof with 

regard to the Article 107 offense. Specifically, in its written response to the 

Defense’s Motion to Dismiss for Failure to State an Offense, the Government 

asserted,

[U]nder [United States v. Livingstone, 78 M.J. 619 (C.G. Ct. 

Crim. App. 2018)] the Government here must simply show that 

lying to a criminal investigator in some “unofficial” capacity 

violates a reasonably-known standard of conduct that would 

place an officer on notice of the criminality of his actions.49

However, we agree with Appellant that, when the Government presented 

its case to the members with regard to the specification at issue, it relied on 

the “officiality” of his statement to establish a reasonably known standard 

based on service customs or standards of conduct. During closing argument 

on findings to the members, trial counsel stated:

And for Charge III, Specification 2, the same conduct, it’s 

up to you to decide whether that conduct, whether making a 

false statement to an investigator in their official duties as a 

detective, whether that is conduct unbecoming an officer, an 

O-4, a commanding officer of a unit, perhaps formerly a commanding officer of a unit at that time, whether that is conduct 

that is unbecoming an officer, disgracing of that officer’s position.50

Moreover, in rebuttal argument, trial counsel relied on both the officiality 

of the statement and that it was made with the intent to deceive, when he 

stated, “[T]he only point of failure here is the Accused lying to a military 

investigator in a manner that was both official and with intent to deceive and 

 

49 App. Ex. XXI at 4.

50 R. at 886.
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Opinion of the Court

14

in a manner that is unbecoming of a lieutenant commander in the United 

States Navy.”51

Thus, the manner in which the Government presented its case to the 

members on Charge III, Specification 2, was contrary to the Coast Guard 

Court of Criminal Appeals’ holding in United States v. Livingstone, which we 

adopt as our own, with regard to legally sufficient evidence that must support 

an Article 133 offense that does not constitute a specific enumerated offense.

If the Government’s theory of liability or proof did not rely on the underlying 

conduct also constituting the specific offense of false official statement under 

Article 107, then the evidence must support that Appellant’s conduct was 

unbecoming—standing alone and independent of whether it constituted the 

specific offense of false official statement.52 When testing for legal sufficiency, 

we look at “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.”53

Here, there must be legally sufficient evidence that (1) Appellant did a 

certain act, that is, made a false statement to Investigator India concerning 

his active duty and mobilization status; and (2) under the circumstances, this 

act constituted conduct unbecoming an officer and a gentleman.54 Further, to 

pass constitutional muster, Appellant must have reasonably known, based on 

service customs or standards of conduct, that this act was punishable.55 That 

custom or standard too must stand on its own without regard to whether the 

conduct also amounts to any specific offense.56

Even viewed in the light most favorable to the Prosecution, we conclude 

that the evidence fails to establish that Appellant’s conduct was unbecoming 

independent of whether it amounted to false official statement. It would not 

be hard to imagine how his conduct would have been unbecoming if Appellant’s statement to Inv. India was both official and made with the intent to 

deceive. But if we remove consideration of whether Appellant’s conduct 

 

51 R. at 921-22.

52 Livingstone, 78 M.J. at 626.

53 United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 

443 U.S. 307, 319 (1979)); see also United States v. Robinson, 77 M.J. 294, 297-98 

(C.A.A.F. 2018)

54 MCM, pt. IV, para. 59.b.

55 Livingstone, 78 M.J. at 626.

56 Id.
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Opinion of the Court

15

amounted to the offense of false official statement, in our view, no readily 

identifiable service custom or standard of conduct remains to sustain his 

conviction. Certainly, the Government, at trial, never clearly articulated to 

either the military judge or the members an independent service custom or 

standard of conduct as its basis.

We agree with the premise raised by the Government at oral argument

before us that under certain factual scenarios, an officer’s conduct is obviously subject to punishment under Article 133. For instance, in United States v. 

Rogers, CAAF held that in the context of an O-5 squadron commander engaging in an unprofessional relationship with his squadron’s O-2 intelligence 

officer while on deployment in a foreign country, any officer would be on 

notice that the conduct at issue was punishable.57 Here, however, it is nowhere as clear that Appellant’s statement to Inv. India, if not official and not 

made with the intent to deceive, violated service customs or standards of 

conduct. Therefore, the Government’s reliance on Rogers is inapt.

In sum, the Government charged the Article 133 offense brought under 

Charge III, Specification 2 without incorporating all the elements of false 

official statement under Article 107, and did not clearly articulate what 

service custom or standard of conduct Appellant violated without relying on 

Article 107 itself [of which Appellant was acquitted]. Moreover, the conduct 

charged in the Article 133 offense, minus the elements of officiality and 

intent to deceive, is not of a type that is obviously punishable. Therefore, we 

conclude that there is legally insufficient evidence that Appellant’s conduct 

was unbecoming notwithstanding whether it amounted to a specific enumerated offense. We thus set aside the finding of guilty to this specification.

C. Sentence Reassessment & Sentence Appropriateness

1. Sentence reassessment

Having set aside the guilty finding to Charge III, Specification 2, we must 

determine if we can reassess the sentence “more expeditiously, more intelligently, and more fairly than a new court-martial.”58 In reassessing sentences, 

we “act with broad discretion.”59

 

57 54 M.J. 244, 257 (C.A.A.F. 2000).

58 United States v. Wincklemann, 73 M.J. 11, 15 (C.A.A.F. 2013) (internal quotation marks omitted).

59 Id.
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So long as we are able to determine that the sentence imposed on Appellant, absent the error, would have been at least of a certain magnitude and 

no higher than he would have received without the error, we may reassess 

the sentence.60 Any sentence we seek to affirm must be “appropriate,” meaning it is not only “purged of prejudicial error [but] also . . . ‘appropriate’ for 

the offense involved.”61

We look to the non-exclusive list of five factors in Winckelmann to determine whether to reassess a sentence or to order a sentencing rehearing: 

(1) whether there has been a dramatic change in the penalty landscape and 

exposure; (2) the forum of the court-martial; (3) whether the remaining 

offenses capture the gravamen of the criminal conduct; (4) whether significant aggravating circumstances remain admissible and relevant; and 

(5) whether the remaining offenses are the type with which we as appellate 

judges have experience and familiarity to reasonably determine what sentence would have been imposed at trial.62

Under all the circumstances presented, we find that we can reassess the 

sentence and it is appropriate for us to do so. There is only a marginal change 

in the penalty landscape and exposure as the maximum punishment for 

confinement has been reduced from three years and six months to two years 

and six months. Appellant was sentenced by members. The remaining offenses capture the gravamen of the criminal conduct for which Appellant was 

sentenced, and there is little change in admissible sentencing evidence. 

Additionally, we have significant experience and familiarity with the offenses 

that remain and conclude that sentence reassessment is appropriate.

Absent the error, we are confident that the court-martial would have imposed a sentence no higher than forfeiture of $6,596 pay per month for four 

months and a dismissal.

2. Sentence appropriateness

With regard to sentence appropriateness, Appellant argues that dismissal 

is an inappropriately severe punishment in light of the nature of the misconduct and his military record. In making our sentence appropriateness determination, he also asks us to take into account that he did not receive any 

credit for the 305 days he served in pre-trial confinement.

 

60 United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000).

61 United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).

62 Winckelmann, 73 M.J. at 15-16.
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Opinion of the Court

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In making our determination, we take into account Appellant’s service 

and personal circumstances, to include his meritorious period of twelve years 

of service with no history of misconduct. However, in addition to patronizing 

multiple foreign prostitutes while stationed overseas and assigned to the staff 

of COMUSNAVCENT, Appellant engaged in conduct unbecoming an officer 

by cohabitating with various foreign prostitutes over a several month period

at his government-funded residence in Bahrain. Although his motives in 

allowing the prostitutes to live with him may have been mainly altruistic, 

after being put on notice in January 2018 that his conduct in this regard was 

under law enforcement scrutiny, he persisted in living with the prostitutes 

until May 2018.

After his orders were cut short in Bahrain following allegations that he 

had committed misconduct there, Appellant was returned to NOSC New 

York. After Commanding Officer, NOSC New York, told him that he would 

need to begin a regular, in-person work schedule, Appellant, a lieutenant 

commander, began an approximately three week period of unauthorized 

absence that was terminated only when he was apprehended by the United 

States Marshals Service executing an absentee warrant that had been issued 

by his command. 

Considering all the circumstances, we determine that Appellant’s sentence as reassessed, to include his dismissal, to be appropriate. In making 

this determination, we are mindful that he served 305 days of pre-trial 

confinement for which he did not receive any formal credit. However, the 

military judge instructed the members that Appellant had already served 

over 300 days in pretrial confinement.63 Because the members did not adjudge any confinement, we infer that they did consider Appellant’s pre-trial 

confinement when they determined his sentence, just as we—in reassessing 

the sentence—took it into consideration.

III. CONCLUSION

The finding of guilty to Charge III, Specification 2, is SET ASIDE and 

that specification is DISMISSED WITH PREJUDICE. After careful consideration of the record and briefs of the appellate counsel, we have determined 

that, following our corrective action, the remaining findings and only so much 

of the sentence that includes forfeiture of $6,596 pay per month for four 

months and a dismissal are correct in law and fact and that no error materi-

 

63 R. at 1005.
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Opinion of the Court

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ally prejudicial to Appellant’s substantial rights remains.64 Accordingly, the 

remaining findings and sentence as reassessed by this Court, are AFFIRMED.65

Senior Judge STEPHENS and Judge DEERWESTER concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

64 UCMJ arts 59, 66.

65 The following caveats contained in the convening authority’s approval of the 

sentence still apply: (a) the duration of the adjudged forfeitures shall be reduced by 

five days per the military judge’s ruling under R.C.M. 305(k), and (b) for any pay to 

which the adjudged forfeitures apply, the amount of the forfeiture applicable to such 

pay shall not exceed two-thirds of such pay.