This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Alan S. GUARDADO, Master Sergeant 

United States Army, Appellant 

No. 17-0183 

Crim. App. No. 20140014 

Argued October 10, 2017—Decided December 12, 2017 

Military Judge: Rebecca K. Connally 

For Appellant: Robert A. Feldmeier, Esq. (argued); Captain 

Michael A. Gold and James S. Trieschmann, Esq. (on 

brief).

For Appellee: Captain Austin L. Fenwick (argued); Colonel 

Mark H. Sydenham, Lieutenant Colonel A. G. Courie III, 

and Major Michael E. Korte (on brief); Captain Samuel E. 

Landes. 

Chief Judge STUCKY delivered the opinion of the 

Court, in which Judges RYAN, OHLSON, and SPARKS, 

and Senior Judge COX, joined. 

______________

Chief Judge STUCKY delivered the opinion of the Court. 

The United States Army Court of Criminal Appeals 

(CCA) held that, in light of United States v. Hills, 75 M.J. 

350, 357 (C.A.A.F. 2016), the military judge committed error 

in instructing the court members in Appellant’s case that 

they could consider evidence of charged offenses to establish 

Appellant’s propensity to commit other charged offenses, but 

that the error was harmless. United States v. Guardado, 75 

M.J. 889, 891 (A. Ct. Crim. App. 2016). We granted review to 

determine: (1) if the military judge’s erroneous panel instructions were indeed harmless; and (2) whether an offense 

defined by the President can preempt an Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 

(2012), general disorder offense. We hold: (1) that the erroneous propensity instruction was not harmless; and (2) that 

the government may not charge a general disorder offense if 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

2 

the offense is otherwise listed as an Article 134, UCMJ, offense. Therefore, we reverse in part. 

I. Procedural History 

Appellant faced a number of charges involving sexual 

misconduct with children. Contrary to his pleas, a general 

court-martial with enlisted representation convicted him of 

one specification of aggravated sexual contact with a child, 

three specifications of indecent liberties with a child, three 

specifications of battery of a child, four specifications of 

committing a general disorder, one specification of indecent 

assault, one specification of indecent acts, and one specification of using indecent language with a child, in violation of 

Articles 120, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 928, 

934 (2000 & Supp. V 2006; 2006; 2006 & Supp. I 2008). The 

panel acquitted Appellant of one specification of rape, one 

specification of indecent liberties with a child, one specification of wrongful sexual contact, and one specification of assault consummated by a battery. 

The court-martial sentenced Appellant to confinement 

for eight years, forfeiture of all pay and allowances, and a 

reduction in grade to E-1. The convening authority approved 

the sentence and ordered it executed. The CCA partially affirmed the findings, dismissing several specifications on 

grounds of multiplicity or unreasonable multiplication of 

charges. Specifically, the CCA dismissed one specification of 

assault consummated by a battery upon a child under the 

age of sixteen and two specifications alleging general disorders under Article 134. Guardado, 75 M.J. at 907. The CCA 

also dismissed one specification of assault consummated by 

a battery upon a child under the age of sixteen and one specification of indecent assault conditioned on the Specification 

of Additional Charge I (assault on a child) and Specification 

1 of Additional Charge II (indecent act on a child) surviving 

final judgment as to the legality of the proceedings. Id. The 

CCA affirmed only so much of the sentence as provided for 

confinement for seven years and eight months, forfeiture of 

all pay and allowances, and reduction in grade to E-1. Id.

 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

3 

II. Background 

The charges against Appellant arose from several distinct incidents of sexual misconduct which spanned more 

than a dozen years. 

The most serious charge of which Appellant was convicted was a sexual assault he committed against his daughter, 

KG, on her tenth birthday in 2008. As they drove to pick up 

party supplies for her birthday party, Appellant shoved his 

hand down his daughter’s pants and touched her genitals. 

The members convicted Appellant of aggravated sexual contact with a child. 

In another instance, Appellant accompanied his niece, 

BR, on an errand to Walmart during a family reunion. Instead of driving directly to Walmart, Appellant drove BR to 

his hotel and asked her to help him retrieve something from 

his room. Upon entering the room, Appellant locked the 

door, blocked the exit, and insisted that BR remove her 

pants. After repeated refusals, Appellant grabbed her by the 

pants and attempted to unbutton them himself. For this 

conduct, members convicted Appellant of battery of a child, 

indecent assault, and indecent acts. 

Appellant did not limit his attentions to his daughter and 

niece. Appellant also targeted teenagers he met while 

coaching a girls’ soccer team from 2007 to 2010. Several 

team members came forward to accuse Appellant of indecent 

and inappropriate conduct, namely telling them about his 

swinger lifestyle, asking them about their sexual histories 

and whether they shaved their genitals, making 

inappropriate comments about their bodies, and suggesting 

they work at a strip club called Teasers so he could watch 

them perform. One player, SW, testified that Appellant once 

touched her on her bare thigh while driving. Another player, 

CH, testified that on more than one occasion, Appellant 

rubbed his body against hers in an inappropriate way, 

pressing his penis against her buttocks. For these acts, the 

panel convicted Appellant of indecent liberties with a child, 

battery, indecent language, and general disorders. The panel 

acquitted Appellant of the specifications arising from his 

alleged touching of CH. 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

4 

In addition to crimes against children, Appellant was also charged with the 1994 rape of VC, a fellow soldier at Fort 

Rucker. The panel acquitted Appellant of this charge. 

On appeal, Appellant argues that he suffered prejudice 

due to instructional errors. At trial, the military judge advised the panel members that they could use evidence of 

each offense alleged in Specifications 1, 6, 7, and 8 of Charge 

I to prove Appellant’s propensity to commit the other three. 

These specifications all related to inappropriate touching 

and concerned the molestation of Appellant’s daughter, KG; 

the rape of a fellow soldier, VC; and sexual contact with one 

of his soccer players, CH. 

III. Law and Discussion 

A. Harmlessness of instructions 

 “Instructional errors are reviewed de novo.” Hills, 75 

M.J. at 357. As Appellant failed to object to the military 

judge’s propensity instruction at trial, we review for plain 

error. United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 

2017) (“[T]he language of R.C.M. 920(f) ... and the great 

weight of our precedent clearly call for plain error review” 

when an appellant fails to preserve an instructional error.); 

see Rule for Court-Martial (R.C.M.) 920(f) (“Failure to object 

to an instruction ... constitutes waiver ... in the absence of 

plain error.”). 

This Court has repeatedly held that plain error occurs 

when: (1) there was error, (2) such error was clear or obvious, and (3) the error materially prejudiced a substantial 

right of the accused. United States v. Feliciano, 76 M.J. 237, 

240 (C.A.A.F. 2017); United States v. Knapp, 73 M.J. 33, 36 

(C.A.A.F. 2014). The burden lies with Appellant to establish 

plain error. United States v. Maynard, 66 M.J. 242, 244 

(C.A.A.F. 2008). 

At trial, the military judge instructed the panel that they 

could consider evidence of four specifications of charged conduct “for its bearing on any matter to which it is relevant in 

relation to those same offenses,” including Appellant’s “propensity or predisposition to engage in sexual assault.” Of the 

four offenses for which propensity evidence was allowed, 

Appellant was convicted of only one—Specification 1 of 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

5 

Charge I, the aggravated sexual contact offense against his 

daughter. Appellant was acquitted of the other three specifications, all of which stemmed from alleged misconduct 

against other victims. 

“In a court-martial proceeding for a sexual offense, the 

military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.” Military Rule of 

Evidence (M.R.E.) 413(a); see M.R.E. 414(a) (providing for 

similar admission of evidence of child molestation). “This includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused 

has a propensity to commit sexual assault.” Hills, 75 M.J. at 

354 (citing United States v. James, 63 M.J. 217, 220–22 

(C.A.A.F. 2006)). The rules do not extend to instances of 

charged conduct, however, for “[i]t is antithetical to the presumption of innocence to suggest that conduct of which an 

accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.” Id. at 356. Accordingly, in Hills, we held 

that using charged misconduct as M.R.E. 413 evidence was 

an abuse of discretion and that the military judge’s attendant instructions “constituted constitutional error that 

was not harmless beyond a reasonable doubt.” Id. at 353. 

Since Hills, we have clarified that the prohibition against 

using charged conduct as “propensity evidence for other 

charged conduct in the same case is error, regardless of the 

forum, the number of victims, or whether the events are 

connected.” United States v. Hukill, 76 M.J. 219, 222 

(C.A.A.F. 2017). 

In this case, it is indisputable that the military judge 

gave an instruction that violated our holding in Hills. While 

we do not fault the military judge for issuing this instruction, for Hills was decided after Appellant’s court-martial, 

we test those unobjected-to instructions for plain error based 

on the law at the time of appeal. United States v. Girouard, 

70 M.J. 5, 11 (C.A.A.F. 2011). Given our holdings in Hills

and Hukill, the military judge’s M.R.E. 413/414 instruction 

constituted clear or obvious error under the law as it exists 

today. The question we must answer is whether this instruc-
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

6 

tional error materially prejudiced Appellant’s substantial 

rights. 

Here, the Government argues that no prejudice ensued 

as Appellant was acquitted of three of the four specifications 

for which the military judge allowed propensity evidence. 

The CCA, reasoning that “[i]f the panel did not believe the 

other offenses happened, there is little danger they would 

rely on an impermissible propensity inference,” agreed and 

concluded that Appellant suffered no prejudice as to 

Specification 1 of Charge I. Guardado, 75 M.J. at 898–99. 

We disagree. 

We are not convinced that any harm that resulted from 

allowing propensity evidence from one specification was necessarily extinguished by an acquittal of that same specification. It simply does not follow that because an individual 

was acquitted of a specification that evidence of that specification was not used as improper propensity evidence and 

therefore had no effect on the verdict. It is conceivable that 

the panel found that Appellant committed the other three 

charged offenses by a preponderance of the evidence but not 

beyond a reasonable doubt. While not persuaded of Appellant’s guilt to the point of convicting him, members could 

still have believed that it was more likely than not that Appellant sexually assaulted SW and CH and used that evidence for propensity purposes, thus violating Appellant’s 

presumption of innocence. Such an outcome is exactly the 

type of result we sought to guard against in Hills. 

Furthermore, we cannot escape the conclusion that Appellant suffered prejudice from the confusing nature of the 

military judge’s instructions. As in Hills, the military judge 

instructed the members as to two different standards of 

proof that they were required to apply to the same evidence. 

First, the military judge instructed the members that they 

could consider evidence of charged offenses for propensity 

purposes if they determined by a preponderance of the evidence that the alleged offenses occurred. Next, she attempted to clarify the Government’s burden of proof and reminded 

the panel that Appellant enjoyed a presumption of innocence. However, although she reiterated several times that 

proof of one sexual assault creates no inference of guilt as to 

the other sexual assaults, her spillover instruction was qual-
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

7 

ified and still allowed members to consider Appellant’s “propensity to commit that type of offense.” As in Hills: 

[t]he instructions in this case provided the members with directly contradictory statements about 

the bearing that one charged offense could have on 

another, one of which required the members to discard the accused’s presumption of innocence, and 

with two different burdens of proof—preponderance 

of the evidence and beyond a reasonable doubt.” 

75 M.J. at 357. These “muddled ... instructions implicate 

‘fundamental conceptions of justice’ under the Due Process 

Clause” and raise “the risk that the members would apply 

an impermissibly low standard of proof.” Id. As “[t]he juxtaposition of the preponderance of the evidence standard with 

the proof beyond a reasonable doubt standard with respect 

to the elements of the same offenses would tax the brain of 

even a trained lawyer,” Id. at 358, we cannot deny that the 

potential for confusion among members was high. We simply 

cannot say “that Appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable 

doubt was not seriously muddled and compromised by the 

instructions as a whole.” Id. at 357. 

This is especially true given the nature of the Government’s case. In reviewing the factual sufficiency of the case, 

the CCA found itself “entirely convinced” of Appellant’s guilt 

and concluded that the result of the trial would have been 

the same even in the absence of the erroneous propensity 

instruction. We do not share the CCA’s confidence. 

There are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by “tipp[ing] 

the balance in the members’ ultimate determination.” Hills, 

75 M.J. at 358. 

This is not such a case. While we will not disturb the 

CCA’s finding that KG’s testimony was credible, the lack of 

supporting evidence makes it difficult to be certain that Appellant was convicted of Specification 1 of Charge I on the 

strength of the evidence alone. Although it is certainly possible that the members convicted Appellant based solely on 

the testimony of his accusers, we are not convinced that the 

erroneous propensity instruction played no role in Appel-
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

8 

lant’s conviction. Accordingly, under the circumstances of 

this case, we are unable to conclude that the military judge’s 

M.R.E. 413/414 instruction was harmless.1 

B. Novel Charge under Article 134, UCMJ 

Next, we address Appellant’s contention that the general 

disorder offenses of which he was convicted were, in fact, 

preempted. Specifically, Appellant claims that the President’s articulation of an Article 134, UCMJ, offense of indecent language precludes the Government from charging him 

with a novel Article 134, UCMJ, general disorder offense 

arising from sexually charged comments he made to teenage 

girls while coaching soccer. 

The President has unequivocally stated that “[t]he 

preemption doctrine prohibits application of Article 134 to 

conduct covered by Articles 80 through 132.” Manual for 

Courts-Martial, United States (MCM) pt. IV, ¶ 60.c.(5)(a) 

(2012 ed.). In other words, the preemption doctrine only 

“prohibits the government from using Article 134, UCMJ, to 

charge offenses that are listed in the UCMJ outside of Article 134.” United States v. Reese, 76 M.J. 297, 302 (C.A.A.F. 

2017). The Government took no such action in this case. 

While the doctrine of preemption is inapplicable to this 

situation, the President has constrained the Government’s 

charging strategy: “[i]f conduct by an accused does not fall 

under any of the listed offenses for violations of Article 134 

in this Manual (paragraphs 61 through 113 of this Part), a 

specification not listed in this Manual may be used to allege 

the offense.” MCM pt. IV, ¶ 60.c.(6)(c). Relying on the plain 

language of the President’s guidance, this Court has held 

that the government may not charge a “novel” offense if the 

offense is otherwise listed as an Article 134, UCMJ, offense. 

Reese, 76 M.J. at 302. In other words, if an offense is “already listed inside [Article 134’s] framework,” it may not be 

charged as a “novel” general disorder offense. Id. 

 1 Appellant also argues that the military judge issued a 

M.R.E. 404(b) instruction that violated our holding in Hills. This 

argument falls outside the scope of the granted issues, and we decline to address it. See United States v. Phillips, 64 M.J. 410, 414 

n.* (C.A.A.F. 2007). 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

9 

In the instant case, the Government referred several 

“novel” Article 134, UCMJ, specifications against Appellant, 

two of which remain. Specification 1 of Charge III alleged in 

pertinent part that: 

[Appellant] wrongfully ask[ed] Ms. SW ... about her 

sexual experiences, what sexual acts she had done, 

told her she had a nice body, and ma[d]e other sexual comments to her, making her uncomfortable, 

which conduct, under the circumstances, was to the 

prejudice of good order and discipline in the armed 

forces and was of a nature to bring discredit upon 

the armed forces. 

Similarly, Specification 5 of Charge III alleged that 

Appellant: 

[told] MM[,] while she was assisting him with his 

soccer team, while she was under 18 years of age, 

that he and his wife were swingers, meaning [Appellant] and his wife were conducting sexual acts 

with others at the same time, which conduct, under 

the circumstances, was to the prejudice of good order and discipline in the armed forces and was of a 

nature to bring discredit upon the armed forces. 

Part IV, para. 89 of the MCM already contains an offense 

of “Indecent language” which lists three elements. The elements of an indecent language offense are: 

(1) That the accused orally or in writing communicated to another person certain language; 

(2) That such language was indecent; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

MCM pt. IV, ¶ 89.b. Notably, this offense encompasses language or communications that are sexual in nature. See 

United States v. French, 31 M.J. 57, 60 (C.M.A. 1990) (holding that language is indecent where “the particular language 

is calculated to corrupt morals or excite libidinous thoughts,” 

so that the appellant’s indecent language specification adequately stated an offense where the appellant asked his 

stepdaughter, who was under the age of sixteen, “if he could 

climb into bed with her.” (internal quotation marks omitted) 

(citation omitted)). Here, the gravamen of Appellant’s Article 
United States v. Guardado, No. 17-0183/AR 

Opinion of the Court 

10 

134 general disorder specifications was the “sexual” nature 

of his comments. Despite the clear applicability of the President’s listed Article 134 offense, the Government elected not 

to charge his conduct as such, instead choosing to charge 

him with two “novel” Article 134 offenses. 

Not only is such action barred under pt. IV, ¶ 60.c.(6)(c), 

but it raises important due process concerns. By using 

“novel” specifications, the Government relieved itself of the 

responsibility of proving the second, and arguably most 

important, element of indecent language—that Appellant’s 

language rose to the level of indecency. In deleting a vital 

element, the Government, in effect, improperly reduced its 

burden of proof. Such an outcome illustrates the reason for 

the limits of pt. IV, ¶ 60.c.(6)(c), and cannot be 

countenanced. 

As Appellant was charged with “novel” Article 134 offenses that could have been charged as Article 134 indecent 

language offenses, we hold that the “novel” offenses arising 

from Appellant’s indecent language were barred by 

¶ 60.c.(6)(c) and, therefore, fail to state an offense under the 

UCMJ. See Reese, 76 M.J. at 302–03. 

IV. Judgment 

The judgment of the United States Army Court of Criminal Appeals is affirmed in part and reversed in part. We affirm the findings as to Specifications 2, 3, and 5 of Charge I, 

Specification 1 of Charge II, Specification 3 of Charge III, 

and Specification 2 of Additional Charge II. The finding as to 

Specification 1 of Charge I is set aside. The findings as to 

Specifications 1 and 5 of Charge III are likewise set aside 

and those specifications are dismissed. The sentence is set 

aside. The record is returned to the Judge Advocate General 

of the Army with a rehearing on Specification 1 of Charge I 

and on the sentence authorized.