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UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Captain KIRKLAND C. NETTLES

United States Air Force

ACM 38336

21 April 2014

Sentence adjudged 2 February 2013 by GCM convened at Maxwell Air 

Force Base, Alabama. Military Judge: Michael J. Coco.

Approved Sentence: Dismissal, confinement for 2 months, and a 

reprimand.

Appellate Counsel for the Appellant: Major Matthew T. King and 

Captain Jeffrey A. Davis.

Appellate Counsel for the United States: Colonel Don M. Christensen;

Lieutenant Colonel C. Taylor; Major Rhea A. Lagano; and Gerald R. Bruce, 

Esquire.

Before

HARNEY, SANTORO, and WEBER

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

PER CURIAM:

A general court-martial consisting of officer members convicted the appellant, 

contrary to his pleas, of two specifications of conspiracy to commit indecent acts, one 

specification of conduct unbecoming an officer by engaging in sexual intercourse in the 

presence of another, and a second specification of conduct unbecoming an officer by 

engaging in sexual intercourse and sodomy in the presence of another, in violation of 
2 ACM 38336

Articles 81 and 133, UCMJ, 10 U.S.C. §§ 881, 933.1The adjudged and approved 

sentence consisted of a dismissal, two months of confinement, and a reprimand. Before 

us, the appellant asserts: (1) The court-martial lacked personal jurisdiction over him;

(2) The acts upon which his conviction was based were private and consensual and 

therefore not punishable under Lawrence v. Texas, 539 U.S. 558 (2003);

2

and (3) His 

sentence is inappropriately severe.

Background

The appellant became friends with several Airmen while he was a captain 

stationed at Langley Air Force Base, Virginia, between approximately 2001 and 2005. 

Among them were Lieutenant Colonel (Lt Col) SC, Lt Col DA, WM (then an active duty 

captain), and Master Sergeant (MSgt) RC. During that time, WM dated both Lt Col SC 

and the appellant and had separate consensual sexual intercourse with each.

In May 2007, Lt Col DA was married in Florida. The appellant, Lt Col SC, WM, 

and MS (a former Air Force captain and friend of Lt Col DA) attended the wedding and 

stayed in the same hotel. Lt Col SC and the appellant shared a room. WM, MS, and 

MSgt RC had separate rooms on another floor of the hotel. 

When WM first arrived at the hotel, she went to MSgt RC’s room to talk with him. 

At some point later, the appellant called MSgt RC’s room and learned that WM was with 

MSgt RC. The appellant and Lt Col SC went to MSgt RC’s room with a bottle of vodka. 

The appellant, Lt Col SC, and WM were all drinking.

WM became tired and said she was going to return to her room. MSgt RC asked 

the appellant and Lt Col SC to leave so he could go to sleep. Instead of returning to their 

room, the appellant and Lt Col SC went to WM’s room. Over her protests, they carried 

WM back to their room and encouraged her to have sexual intercourse with them. She 

declined. When the men pressed her to explain why, she told them she was menstruating. 

Undeterred by her objection, the appellant went to WM’s room and searched 

through her suitcase and clothing. When he returned to his room, he announced to 

Lt Col SC (in the presence of WM) that she had no feminine hygiene products other than 

panty liners, so she was “good to go.” The appellant and Lt Col SC disrobed WM and 

each had vaginal and oral intercourse with her in the presence of the other. The appellant 

and Lt Col SC acted in concert to position WM’s body as each desired. When they were 

done, each man asked the other if he “was good,” meaning whether he had achieved 

orgasm.

 

1 The court-martial acquitted the appellant of conspiracy to commit rape, rape, assault consummated by a battery, 

and a third specification of conduct unbecoming an officer, in violation of Articles 80, 120, and 133, 10 U.S.C. 

§§ 880, 920, 933.

2 The first and second issues are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 ACM 38336

WM testified that although she did not want to have intercourse with them, after 

the appellant returned from his search of her belongings, she just gave in and let them 

have sex with her. She considered the activity consensual.

The next day, after the wedding, the guests went to a bar to continue the 

celebration. During the night, the appellant and Lt Col SC danced with MS. WM saw 

MS leaving with the appellant and Lt Col SC and said, “don’t let them run a train on 

you,” loud enough for everyone in the area to hear. The appellant and Lt Col SC 

transported MS back to their hotel. MS testified that she allowed them to take her back 

to the hotel because she knew they were Air Force officers and felt comfortable around 

them for that reason.

When they arrived at the hotel, they went to the appellant and Lt Col SC’s room. 

One of the men unhooked MS’s bra; she thought it was a joke and re-hooked it. When 

one of the men unhooked her bra again, she realized it was not a joke and got up to leave. 

As she walked toward the door, one of the men blocked her path and pushed her back 

into the room; the other man pulled her back toward the bed. The men undressed her and 

each had vaginal sex with her twice in the presence of the other. At trial, MS testified 

that she did not consent to having intercourse with either man.

Personal Jurisdiction

The appellant argues, as he did at trial, that the court-martial did not have personal 

jurisdiction over him because, by the time of his trial, he had been validly discharged. 

When personal jurisdiction is challenged on appeal, “we review that question of law de 

novo, accepting the military judge’s findings of historical facts unless they are clearly 

erroneous or unsupported by the record.” United States v. Melanson, 53 M.J. 1, 2 

(C.A.A.F. 2000) (citing United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999)).

The military judge made findings of fact which are amply supported by the record, 

are not clearly erroneous, and are not challenged before us, which we now adopt. 

Instead, the appellant challenges the military judge’s legal conclusions based on the 

procedural history.

Following service in the Alabama Air National Guard, the appellant was on active 

duty between September 2001 and August 2007. He then served in the ready reserve 

until March 2011 when he transferred to the inactive reserve. On 14 March 2012, the 

appellant was notified by the Air Reserve Personnel Center (ARPC) that he was going to 

be discharged from the inactive reserve on 1 October 2012 because he had twice been 

passed over for promotion to major. The ARPC notice cited 10 U.S.C. §14505 

(hereinafter “non-promotion discharge”) as the discharge authority and advised the 

appellant that he would receive his discharge certificate “when the action is taken.”
4 ACM 38336

Charges were preferred on 8 May 2012. The Secretary of the Air Force approved 

any recall of the appellant to active duty on 18 July 2012. The special court-martial 

convening authority’s staff judge advocate’s office contacted ARPC in an effort to place 

the appellant on administrative hold to prevent his discharge. Despite assurances from 

ARPC that the appellant’s status had been properly coded, an administrative oversight 

resulted in the code not being entered into the appellant’s record.

As a result of this oversight, the section at ARPC responsible for affecting the 

appellant’s non-promotion discharge continued processing and generated an order on 

25 September 2012 which purportedly discharged the appellant on 1 October 2012. The 

order was never delivered to the appellant – not because the administrative error had been 

caught, but rather because ARPC had run out of paper for the DD Form 256 (the 

discharge certificate) that was to have accompanied the discharge order.

On 7 or 8 November 2012, the special court-martial convening authority’s staff 

judge advocate learned of the existence of the non-promotion discharge order and 

contacted ARPC’s staff judge advocate. On 8 November 2012, ARPC created an Air 

Force IMT Form 973 which purported to rescind the non-promotion discharge order.

The appellant was ordered to active duty to attend his Article 32, UCMJ, 

10 U.S.C. § 832, hearing, for arraignment, and for trial. He was arraigned on 

19 October 2012; there is no evidence or indication that the appellant contested those 

orders at the time of his arraignment.

The conduct underlying the offenses for which the appellant was tried occurred 

while he was on active duty; however, by the time charges were preferred, he was a 

member of a reserve component. A member of a reserve component becomes subject to 

a court-martial’s jurisdiction when ordered onto active duty to answer for offenses 

committed while the member was on active duty. Articles 2(d)(1) and 2(d)(2)(A), 

UCMJ, 10 U.S.C. §§ 802 (d)(1), (d)(2)(A).

Before us, the appellant does not challenge whether the Article 2, UCMJ,

procedural requirements were followed. Rather, he argues that he was discharged as of 

1 October 2012 and therefore was no longer a member of any military component or 

subject to the UCMJ.

A valid discharge ordinarily requires delivery of a valid discharge certificate, a 

final accounting of pay, and out-processing.3 United States v. Hart, 66 M.J. 273, 280 

(C.A.A.F. 2008); United States v. King, 27 M.J. 327, 329 (C.M.A. 1989). The passage of 

 

3 At trial, the parties agreed that no final accounting of pay or out-processing was necessary due to the appellant’s 

reserve status.
5 ACM 38336

an established separation date alone does not act as a discharge. United States v. 

Fitzpatrick, 14 M.J. 394, 397 (C.M.A. 1983).

The appellant argues that ARPC’s 25 September 2012 order was self-executing, or 

to put it differently, that ARPC issued a prospective discharge certificate. To satisfy the 

first prong of discharge case law (that the discharge certificate must be delivered to be 

effective), he argues that ARPC’s 14 March 2012 notice that a discharge would occur in 

the future was in effect the “delivery” of the discharge certificate that would not be 

generated for another six months.

We conclude, as did the military judge, there was never delivery of a valid 

discharge certificate. The appellant never actually received a valid discharge certificate, 

and the mere fact that ARPC prepared an order that purported to discharge the appellant 

does not change the fact that no certificate was ever delivered. Therefore, the appellant 

remained subject to court-martial jurisdiction.

Constitutional Challenge

The appellant next argues that his convictions must be set aside in light of the 

Supreme Court’s holding in Lawrence v. Texas, as applied to the military in United States 

v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). He asserts the conduct that resulted in his 

conviction was private, consensual conduct that was protected by Lawrence and Marcum. 

At trial, the military judge denied the appellant’s motion to dismiss these specifications 

because he found that the alleged conduct did not fall within a protected liberty interest.

We review Constitutional questions de novo. Marcum, 60 M.J. at 202. As the 

appellant attacks the statute “as applied,” we conduct a de novo fact-specific analysis. 

United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013) (citing United States v. Ali, 

71 M.J. 256, 265 (C.A.A.F. 2012)). We apply a three-pronged analysis:

First, 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? Second, did the conduct encompass any behavior or factors 

identified by the Supreme Court as outside the analysis in Lawrence?

Third, are there additional factors relevant solely in the military 

environment that affect the nature and reach of the Lawrence liberty 

interest? 

Marcum, 60 M.J. at 206-07 (internal citation omitted).

At the outset, we note that “[t]here is no question that Appellant’s rights as a 

member of the military are not coextensive with those enjoyed by civilians” and that “no 
6 ACM 38336

one asserts that the interest recognized in Lawrence is somehow exempt from adaptation 

to the military environment.” Goings, 72 M.J. at 205, 206.

Our superior court has held that even post-Marcum, “The commission of sexual 

acts in the presence of a third party has been held to be sufficiently ‘open and notorious’

to constitute an indecent act, punishable under Article 134, UCMJ.” Id. at 206; see also

United States v. Izquierdo, 51 M.J. 421, 422-23 (C.A.A.F. 1999). In Goings, a third party 

was present during consensual sexual activity and recorded the activity. Our superior 

court upheld Goings’ conviction for engaging in an indecent act, concluding that the 

presence of the third party, even though voluntarily present and with the knowledge and 

consent of the parties engaged in the sexual activity, was sufficiently open and notorious 

to take it outside of the liberty interest identified in Lawrence.

4

 Going, 72 M.J. at 206.

As it relates to the facts of this case, our superior court pointed out in Goings:

When the conduct being charged does not fall directly within the focal 

point of Lawrence—sexual conduct between two individuals in a wholly 

private setting that was criminal for no other reason than the act of the 

sexual conduct itself—and where, as here, the predicate sexual conduct is 

criminal because of some additional factor (in this case, the violation of 

clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that 

such conduct should nonetheless be constitutionally protected rests with the 

defense at trial.

Id. at 207 (emphasis added). The appellant “must develop facts at trial that show why his 

interest should overcome the determination of Congress and the President that the 

conduct be proscribed.” Id.

In each of the specifications alleging conduct unbecoming an officer, the military 

judge instructed the members that to find the appellant guilty, they must be convinced 

beyond a reasonable doubt that (1) He engaged in wrongful act (sexual intercourse with 

MS or sexual intercourse and oral sodomy with WM); (2) The act was indecent; and 

(3) Under the circumstances, his conduct was unbecoming an officer and a gentleman. 

The military judge further instructed the members:

Article 133, UCMJ, is not intended to regulate the wholly private 

consensual sexual activities of individuals. In the absence of aggravating 

circumstances, private consensual sexual activity including sexual 

intercourse and/or oral sodomy is not punishable as an indecent act. 

 

4 The third party in United States v. Goings, 72 M.J. 202, 204 (C.A.A.F. 2013), also participated in the sexual 

activity, but his participation was not alleged in the indecent act specification at issue.
7 ACM 38336

Among possible aggravating circumstances is that the sexual activity was 

open and notorious. Sexual activity may be open and notorious when the 

participants know that someone else is present. This presence of someone 

else may include a person who is present and witnesses the sexual activity.

The military judge gave a similar instruction with respect to the specifications 

alleging conspiracy to commit indecent acts.

The Supreme Court’s analysis in Lawrence addresses private, consensual sexual 

activity between two adults. The Lawrence court neither considered nor addressed 

whether the liberty interest it identified extended to activities involving more than two 

people, whether simultaneously or consecutively. Cognizant of Lawrence, our superior 

court’s holding in Goings cited with approval existing military law defining an indecent 

act as one that was “open and notorious” when the participants know that another was 

present to witness the sexual activity. 72 M.J. at 206. On these facts, we conclude that 

the appellant’s acts were not “private.” They are therefore outside the privacy interest 

identified by the Supreme Court in Lawrence. As such, the appellant’s Constitutional 

challenge must fail.

Sentence Severity

Lastly, the appellant argues that his sentence to a dismissal was inappropriately 

severe. In support of his argument, the appellant asserts that the Government charged 

him with the offenses of which he was ultimately convicted simply as “tack on” offenses 

to the more serious crimes of rape and assault. He further argues that had the 

Government believed that the activity was consensual, as he asserts the members 

concluded, he would not have faced trial. Finally, he argues that the offenses of conduct 

unbecoming an officer and conspiracy to commit indecent acts constitute “minor 

offenses” warranting little to no punishment. Alternatively, the appellant invites our 

attention to the sentence of his coactor, Lt Col SC, which was “no punishment.”

This Court reviews sentence appropriateness de novo. United States v. Lane, 

64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the 

sentence or such part or amount of the sentence, as [we find] correct in law and fact and 

determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 

10 U.S.C. § 866(c). We assess sentence appropriateness by considering the appellant, the 

nature and seriousness of the offenses, the appellant’s record of service, and all matters 

contained in the record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 

1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006). 

While we have a great deal of discretion in determining whether a particular 

sentence is appropriate, we are not authorized to engage in exercises of clemency. 

United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). Moreover, while we are 
8 ACM 38336

required to examine sentence disparities in closely related cases, we are not required to 

do so in other cases. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); 

United States v. Christian, 63 M.J. 714, 717 (A.F. Ct. Crim. App. 2006).

We are unpersuaded by the appellant’s assertion that his offenses are minor and 

should not be punished. The very existence of the Article 133, UCMJ, offense signifies 

the higher standard to which officers must be held. The court-martial concluded beyond 

a reasonable doubt that the appellant’s conduct dishonored or disgraced him as an officer, 

seriously compromised his character, or compromised his standing as an officer. We 

fully agree.

Closely related cases include those which pertain to “coactors involved in a 

common crime, servicemembers involved in a common or parallel scheme, or some other 

direct nexus between the servicemembers whose sentences are sought to be compared.” 

Lacy, 50 M.J. at 288. “At [this Court], an appellant bears the burden of demonstrating 

that any cited cases are ‘closely related’ to his or her case and that the sentences are 

‘highly disparate.’ If the appellant meets that burden . . . then the Government must show 

that there is a rational basis for the disparity.” Id.

In support of his argument, the appellant submitted an Air Force Form 1359 

(“Report of Result of Trial”) from Lt Col SC’s case. The Report of Result of Trial 

indicates that Lt Col SC was convicted, contrary to his pleas, of two specifications of 

conduct unbecoming an officer for “engaging in contemporaneous sexual conduct” with 

the appellant and WM and MS. Lt Col SC was acquitted of raping and assaulting MS.

As Lt Col SC was the appellant’s coactor with respect to each offense, we 

conclude that the cases are “closely related.” We next turn to whether the sentences were 

highly disparate. Again, we conclude that they were: the appellant was sentenced both 

to a punitive discharge and confinement, whereas his coactor received no punishment. 

Accordingly, the Government bears the burden of showing that there is a rational basis 

for the disparity.5

Unlike the appellant, Lt Col SC was not charged with conspiracy to commit any 

offenses. Moreover, the nature of the conduct unbecoming allegations, while similar, is 

distinguishable. The appellant was charged with conduct unbecoming an officer for 

“wrongfully committing an indecent act” with each of the women by engaging in sexual 

acts in the presence of another. In contrast, Lt Col SC was charged with conduct 

unbecoming an officer for “engaging in contemporaneous sexual conduct” with each 

woman and with the appellant. There was no allegation of indecency in Lt Col SC’s 

 

5

In its brief before us, the Government twice argues that because the appellant failed to submit evidence concerning 

Lieutenant Colonel SC’s sentencing case, we must “solely look at Appellant” to determine whether there is a 

rational basis for his sentence. Our review of this case, however, applies the proper legal standard to determine 

whether the Government has met its burden to establish a rational basis for the sentence disparity.
9 ACM 38336

conduct beyond that inherent in the definition of unbecoming conduct. The appellant was 

charged with, and found guilty of, more egregious offenses than his coactor.

There is no evidence that either charging decision was unreasonable or 

impermissible. “Just as ‘disparity in sentencing among codefendants is not, by itself, a 

sufficient ground for attacking an otherwise proper sentence under the [federal 

sentencing] guidelines,’ the military system must be prepared to accept some disparity in 

the sentencing of codefendants, provided each military accused is sentenced as an 

individual.” United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001) (alteration in 

original). “[C]harging decisions by commanders in consultation with their trial counsel, 

as well as referral decisions by convening authorities after advice from their Staff Judge 

Advocates, can certainly lead to differences in sentencing.” Id. at 261.

We have no evidence before us of matters considered by Lt Col SC’s 

court-martial. However, we conclude that the evidence presented during the appellant’s 

case supports the appellant’s sentence. The appellant’s officer performance reports –

particularly those in the years immediately preceding his trial – were mediocre at best, 

including a referral performance report for violating testing procedures while an 

instructor at Air University. The appellant had twice been passed over for promotion and 

was facing involuntary separation. In contrast, Lt Col SC was a major at the time of the 

offenses and had since been promoted to lieutenant colonel.

Taking all of these matters into account, we conclude there is a rational basis for 

the disparity in sentences between the appellant and Lt Col SC. Lt Col SC’s unusually 

good fortune in receiving a sentence of “no punishment” after being convicted of two 

specifications of conduct unbecoming an officer should not result in an undeserved 

windfall for the appellant. See Lacy, 50 M.J. at 288 (noting that judges on the Courts of 

Criminal Appeals “‘have a solid feel for the range of punishments typically meted out’” 

(quoting United States v. Ballard, 20 M.J. 282, 286 (C.M.A. 1985))).

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 
10 ACM 38336

Accordingly, the findings and the sentence are 

AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court