IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Darrell R. Stirewalt, Health Services Technician Second Class 

U.S. Coast Guard, Appellant 

No. 03-0433 

Crim. App. No. 1098 

United States Court of Appeals for the Armed Forces 

Argued April 27, 2004 

Decided September 29, 2004 

ERDMANN, J., delivered the opinion of the Court, in which 

GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a 

separate opinion concurring in part and in the result. 

Counsel 

For Appellant: Lieutenant Commander Nancy J. Truax (argued); 

Lieutenant Laurina M. Spolidoro. 

For Appellee: Lieutenant Sandra J. Miracle (argued); Lieutenant 

Commander John S. Luce Jr.

Military Judge: W. J. Dunaway 

This opinion is subject to editorial correction before final publication. 
United States v. Stirewalt, 03-0433/CG 

2 

Judge ERDMANN delivered the opinion of the Court. 

 Health Services Technician Second Class (E-5) Darrell 

Stirewalt was convicted of a number of offenses involving his 

female shipmates. Before this Court Stirewalt argues that his 

prosecution was tainted with unlawful command influence, that 

the investigating officer had an impermissible conflict of 

interest and that his conviction for sodomy violated the Fifth 

Amendment. We affirm the decision of the Coast Guard Court of 

Criminal Appeals. 

PROCEDURAL BACKGROUND

As this case has a long and complex procedural history, a 

brief review of that procedure is helpful in providing a 

contextual basis for this decision. 

 A. The Initial Trial

Stirewalt was originally tried by a general court-martial 

and was convicted of four specifications of maltreatment by 

sexual harassment, one specification of rape, one specification 

of forcible sodomy, three specifications of assault consummated 

by a battery, four specifications of adultery and four 

specifications of indecent assault. Prior to sentencing, the 

military judge dismissed two specifications of maltreatment, two 

specifications of assault consummated by a battery and one 

specification of adultery. The members sentenced Stirewalt to a 

dishonorable discharge, ten years’ confinement, forfeiture of 
United States v. Stirewalt, 03-0433/CG 

3 

all pay and allowances and reduction to the lowest enlisted 

grade. 

B. The Initial Court of Criminal Appeals Appeal

 Stirewalt’s conviction and sentence were reviewed by the 

Coast Guard Court of Criminal Appeals under Article 66(c), 

Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 866(c) 

(2000). The Court of Criminal Appeals found that the military 

judge had erred in excluding certain testimony under the "rape 

shield" provisions of Military Rule of Evidence 412. See United 

States v. Stirewalt, 53 M.J. 582 (C.G. Ct. Crim. App. 2000). As 

a result of that ruling, the court set aside the guilty findings 

for the offenses involving Stirewalt's female department head, 

which included rape, forcible sodomy, assault and battery and 

indecent assault. The court affirmed the remaining guilty 

findings but set aside the sentence and authorized a rehearing. 

C. The Rehearing -- Motion to Dismiss

The case was returned to the convening authority for a 

rehearing on sentence and, if practicable, a rehearing on the 

charges that had been set aside. The convening authority 

ultimately referred all of the charges that the Court of 

Criminal Appeals had set aside to a general court-martial for 

rehearing. 

Based on evidence discovered after his first trial, 

Stirewalt moved to dismiss all of the charges referred for 
United States v. Stirewalt, 03-0433/CG 

4 

retrial on the grounds of unlawful command influence. Stirewalt 

contended that (1) the original decision to request an 

investigation of the charges pursuant to Article 32, UCMJ, 10 

U.S.C. § 832 (2000) was tainted by unlawful command influence; 

(2) witnesses had been discouraged from coming forward on his 

behalf; (3) actions of the command had tainted the member pool; 

and (4) the Article 32 investigating officer lacked independence 

and later improperly acted as the staff judge advocate in 

providing advice on the case. 

Although the military judge denied Stirewalt's motion to 

dismiss, he did order several remedial measures that he 

characterized as "necessary to ensure that the accused receives 

a fair trial and to restore the public confidence in the present 

case." The military judge found no unlawful command influence 

in terms of the initial referral of the charges or any "taint" 

of the member pool, but he did conclude that the Government had 

failed to demonstrate beyond a reasonable doubt that improper 

interference with witnesses had not occurred. He also found 

that the Article 32 investigating officer "was not aggressive 

enough in his attempts to shield himself from subsequent action 

on the same case that he served as the [investigating officer]." 

In light of those conclusions the military judge ordered 

that certain steps be taken to ensure full access to witnesses 

by the defense and that the convening authority designate a new 
United States v. Stirewalt, 03-0433/CG 

5 

place of trial. He also ordered that the Article 32 

investigating officer take no further steps with regard to the 

case and remove himself from the rating chain of the assistant 

trial counsel. 

D. Interlocutory Request for Extraordinary Relief

In response to the military judge's ruling, Stirewalt filed 

a petition for a writ of mandamus with the Court of Criminal 

Appeals. He asked the court for an order either directing the 

convening authority to withdraw and dismiss the charges on 

grounds of unlawful command influence or, alternatively, 

disqualifying the convening authority and appointing a 

substitute convening authority. The Court of Criminal Appeals 

denied Stirewalt's petition and "approve[d] the military judge's 

findings, his denial of the motion below, and the actions 

ordered by him to facilitate a fair rehearing and to restore 

public confidence in the case." See Stirewalt v. Pluta, 54 M.J. 

925, 927 (C.G. Ct. Crim. App. 2001). 

E. Rehearing and Disposition

The matter was returned for rehearing and Stirewalt elected 

a trial by military judge alone. In accordance with the terms 

of a pretrial agreement, Stirewalt pleaded guilty in March 2001 

to one specification of sodomy under Article 125, UCMJ, 10 

U.S.C. § 925 (2000). Pursuant to the pretrial agreement, the 
United States v. Stirewalt, 03-0433/CG 

6 

Government dismissed with prejudice the rape, forcible sodomy, 

assault and indecent assault charges. 

At that point, Stirewalt stood convicted of sexual 

harassment, adultery and indecent assault from his first trial 

and of sodomy from the rehearing. The military judge sentenced 

Stirewalt to 90 days’ confinement, reduction in pay grade to E4, and a reprimand. The convening authority approved the 

sentence. 

F. Second Court of Criminal Appeals Decision

The Court of Criminal Appeals again reviewed the matter 

under Article 66(c), UCMJ. Stirewalt raised seven assignments 

of error, six of which the court viewed as having already been 

addressed and disposed of in its earlier decisions in the case. 

See United States v. Stirewalt, 58 M.J. 552, 554 (C.G. Ct. Crim. 

App. 2003). The only "new" assignment of error involved a 

request by Stirewalt that credit for his "excess" confinement be 

applied against his adjudged reduction in rank. That claim was 

rejected on the basis of our decisions in United States v. 

Rosendahl, 53 M.J. 344 (C.A.A.F. 2000) and United States v. 

Josey, 58 M.J. 105 (C.A.A.F. 2003). 

Stirewalt then petitioned this Court for review of his case 

under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000). His 

defense counsel assigned six errors and he individually asserted 
United States v. Stirewalt, 03-0433/CG 

7 

seven errors pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). We granted review of the following issues: 

I. WHETHER A SUBORDINATE COMMANDER CAN BE SAID TO HAVE 

EXERCISED INDEPENDENT JUDGMENT WHEN THE COMMANDER'S THIRD 

LEVEL SUPERVISOR "FORCEFULLY" ADVISED THE COMMANDER THAT 

APPELLANT'S CHARGES WERE "TOO SERIOUS" TO BE HANDLED AT NJP 

OR SPECIAL COURT-MARTIAL AND "NEEDED TO BE HEARD . . . BY 

AN UNLIMITED TRIBUNAL." 

II. WHETHER APPELLANT WAS PREJUDICED WHEN THE 

INVESTIGATING OFFICER VIOLATED UCMJ ARTICLE 6(c) AND R.C.M. 

405(d)(1) BY PROVIDING EX PARTE ADVICE TO BOTH THE 

CONVENING AUTHORITY AND THE STAFF JUDGE ADVOCATE UPON 

REMAND FROM THE LOWER COURT. 

III. WHETHER APPELLANT'S CONVICTION FOR ADULT, CONSENSUAL 

SODOMY VIOLATES HIS VITAL INTEREST IN LIBERTY AND PRIVACY 

PROTECTED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

We find that Stirewalt’s commander exercised independent 

discretion in requesting an Article 32 investigation, that 

Stirewalt was not prejudiced by the subsequent involvement of 

the investigating officer in his case and that his conviction of 

sodomy did not infringe on his liberty interest under the Due 

Process Clause of the Fifth Amendment. 

DISCUSSION

 A. The Initial Investigation and Referral of Charges

 Stirewalt served as the health services technician on the 

USCGS SWEETGUM, a Coast Guard cutter under the command of 

Lieutenant Commander Crawley. Stirewalt argues that Lieutenant 

Commander Crawley's decision to request an Article 32 

investigation of the allegations and his subsequent decision to 
United States v. Stirewalt, 03-0433/CG 

8 

recommend referral of the charges to a general court-martial 

were improperly influenced by the Chief of Staff for the Eighth 

Coast Guard District, Captain Prokop. 

 This contention was one of several claims of unlawful 

command influence that were litigated before the military judge 

at the rehearing and was addressed in the judge’s "Essential 

Findings of Fact and Conclusions of Law." Where the issue of 

unlawful command influence has been litigated on the record, we 

review the military judge's findings of fact under a clearly 

erroneous standard. United States v. Johnson, 54 M.J. 32, 34 

(C.A.A.F. 2000). The question of command influence flowing from 

those facts, however, is a question of law that we review de 

novo. Id. 

The military judge found that the initial allegations of 

misconduct against Stirewalt were brought forward by three 

crewmembers. Upon learning of the allegations, Lieutenant 

Commander Crawley notified the Coast Guard Investigative Service 

(CGIS). An agent from CGIS was dispatched to the SWEETGUM 

within a day and had briefed Lieutenant Commander Crawley with 

his preliminary results within the week. Lieutenant Commander 

Crawley then contacted Captain Bohner, his immediate supervisor, 

who in turn contacted his supervisor, Captain Gerfin, the Eighth 

District Chief of Operations. These two officers ultimately 
United States v. Stirewalt, 03-0433/CG 

9 

briefed Captain Prokop, the Eighth Coast Guard District Chief of 

Staff. 

The military judge found that all four officers then 

participated in two telephone conferences concerning the 

allegations against Stirewalt. Lieutenant Commander Crawley 

told the other officers that he had informed CGIS of the 

allegations, that an investigation was ongoing and that he was 

considering his options for handling the situation. 

The military judge found that Captain Prokop "very clearly 

and forcefully made his opinion known during the phone calls 

that the allegations were too serious to go to captain's mast 

and that they warranted an airing at an Article 32." He also 

found, however, that Captain Gerfin made it clear to Lieutenant 

Commander Crawley that the decision as to the disposition of the 

case was his to make. 

The factual basis for Stirewalt's claim is the military 

judge's finding that Captain Prokop "very clearly and 

forcefully" expressed his opinion concerning the seriousness of 

the charges and the need for an Article 32 investigation. As 

recognized by the military judge, the legal significance of that 

statement must be assessed against the broader context in which 

it occurred. 

The statement was made during discussions that were 

initiated by Lieutenant Commander Crawley, the subordinate 
United States v. Stirewalt, 03-0433/CG 

10 

commander. There is nothing inherently suspect about an officer 

in Lieutenant Commander Crawley's position electing to consult 

with his chain of command concerning potential investigative and 

procedural options when faced with allegations of serious 

misconduct. Without Captain Prokop's statement, Crawley’s 

actions would not have been considered irregular. 

Neither Lieutenant Commander Crawley nor Captain Prokop had 

any specific recollection of the telephone conversation at 

issue. The only clear recollection of either the phone 

conversation or Captain Prokop’s comment came from Captain 

Gerfin, an intermediate commander, who knew both Crawley and 

Prokop. Captain Gerfin did not view Captain Prokop’s statement 

as constituting any constraint on Lieutenant Commander Crawley’s 

discretion and testified that Crawley was “obviously” the 

decision maker in regard to the necessity of an Article 32 

investigation. 

The military judge recognized that Captain Prokop's 

statement, "viewed in a void" could be seen as unlawful command 

influence. That void was filled, however, with extensive factfinding regarding the context in which it was made and a 

thorough legal analysis which resulted in the military judge’s 

findings and conclusions that unlawful command influence had not 

occurred. We do not view the military judge's findings of fact 

on this issue as "clearly erroneous," nor do we view those facts 
United States v. Stirewalt, 03-0433/CG 

11 

as supporting a de novo conclusion on our part that unlawful 

command influence flowed from those facts. Johnson, 54 M.J. at 

34. 

B. The Role of the Investigating Officer

 Stirewalt asserts that he was prejudiced by the subsequent 

involvement of the original investigating officer in his courtmartial rehearing process. As with the first issue, this claim 

was litigated before the military judge at the rehearing and was 

addressed in his "Essential Findings of Fact and Conclusions of 

Law." 

 The facts underlying this claim are not disputed. After 

Lieutenant Commander Crawley decided to proceed with an Article 

32 investigation, the Eighth Coast Guard District identified 

Commander Baumgartner as a prospective investigating officer. 

Commander Baumgartner did not serve in the Eighth District and, 

once identified, was properly appointed by Lieutenant Commander 

Crawley. He subsequently presided over the Article 32 hearing 

process, completed a report of the investigation and forwarded 

it to Lieutenant Commander Crawley with a recommendation that 

the matter proceed to a general court-martial. 

 Unfortunately that was not the end of Commander 

Baumgartner's involvement in Stirewalt's court-martial. He was 

subsequently transferred to the Eighth District legal office 

and was serving as the acting staff judge advocate (SJA) when 
United States v. Stirewalt, 03-0433/CG 

12 

the Coast Guard Court of Criminal Appeals issued its initial 

decision reversing portions of Stirewalt’s original conviction. 

The military judge made the following findings of fact 

concerning the nature of Commander Baumgartner’s subsequent 

involvement in Stirewalt's case: 

• He attended and participated in a meeting with the 

Commander of the Eighth District where decisions were 

made concerning the case. He was present at the 

meeting because he, as the Article 32 investigating 

officer, knew the facts of the case. 

• He was the acting SJA when asked to provide an opinion 

on whether the SJA should appeal the decision to CAAF. 

• Several e-mails sent to and from Commander Baumgartner 

indicate that he served as the Eighth District legal 

office's point of contact for Stirewalt's case. 

• He routinely held himself out as part of the Eighth 

District legal team in matters pertaining to 

Stirewalt's case by using the word "we." 

• He supervised the assistant trial counsel and the law 

clerk who worked on Stirewalt's case. 

• He had been responsible for some of the logistics in 

Stirewalt's case, including budget, assignment of 

counsel and docketing matters. 
United States v. Stirewalt, 03-0433/CG 

13 

• He shared advice and information about the Stirewalt 

case with the senior legal officer at the Eighth 

District. 

 The military judge ultimately determined that "Commander 

Baumgartner was not aggressive enough in his attempts to shield 

himself from subsequent action on the same case that he served 

as the IO." He went on to order that Commander Baumgartner take 

no further action regarding the case and that he remove himself 

from the rating chain for the assistant trial counsel. 

 While the Court of Criminal Appeals recognized that 

Commander Baumgartner's actions "may constitute a departure from 

the requirements of Article 6(c), UCMJ, and [Rule for CourtsMartial 405 [R.C.M.]]," it found no prejudicial error. Based on 

the record before us, we agree with the Court of Criminal 

Appeals that Stirewalt has not established that he was 

prejudiced by the subsequent involvement of Commander 

Baumgartner. 

 There is no question that Commander Baumgartner's actions 

violated R.C.M. 405(d)(1). That rule unambiguously states that 

"[an] investigating officer is disqualified to act later in the 

same case in any other capacity." A violation of R.C.M. 

405(d)(1), however, must be measured for prejudice and since 

Stirewalt has not established that he was prejudiced, he cannot 

prevail on this issue. United States v. Holt, 52 M.J. 173, 183-
United States v. Stirewalt, 03-0433/CG 

14 

84 (C.A.A.F. 1999)(actions of investigating officer inconsistent 

with R.C.M. 405(d)(1) measured for prejudice). 

The question as to whether Commander Baumgartner's actions 

violated Article 6(c), UCMJ, is not quite as clear. That 

provision states that no person who acts as a member, judge, 

counsel or investigating officer "may later act as a staff judge 

advocate or legal officer to any reviewing authority upon the 

same case." Id. Stirewalt goes on to argue that prejudice can 

be "presumed" in the case of an Article 6(c) violation and 

relies on several older decisions from this Court. See, e.g., 

United States v. Jolliff, 22 C.M.A. 95, 46 C.M.R. 95 

(1973)(Article 32 investigating officer involved in preparing 

post-trial advice); United States v. Coulter, 3 C.M.A. 657, 659, 

14 C.M.R. 75, 78 (1954)(trial counsel later serving as staff 

judge advocate for post-trial review). 

In order to prevail under Article 6(c) Stirewalt must 

convince us that Article 6(c) is applicable to this factual 

situation and further, that where an Article 6(c) violation has 

been established, prejudice can be presumed. 

As recognized by Stirewalt, this Court has not clearly 

determined whether the term "reviewing authority" in Article 

6(c) applies to the activities of a convening authority 

throughout all stages of the court-martial process, or simply to 

the latter stages of the process where the convening authority 
United States v. Stirewalt, 03-0433/CG 

15 

is engaged in "reviewing" the results of the court-martial. In 

United States v. Dodge, 13 C.M.A. 525, 527 n.1, 33 C.M.R. 57, 59 

n.1 (1963) we noted that the term "reviewing authority" was used 

interchangeably with the term "convening authority" and assumed, 

for purposes of that case, that Article 6(c) would prohibit an 

investigating officer from subsequently acting as a staff judge 

advocate in preparing a pretrial advice. 

Just two weeks later, however, we characterized a similar 

argument concerning the scope of the Article 6(c) prohibition as 

"pure speculation." United States v. Smith, 13 C.M.A. 553, 558, 

33 C.M.R. 85, 90 (1963). We later characterized Article 6(c) as 

"on its face" applying to a staff judge advocate "acting for a 

reviewing authority" and rejected an argument that its 

application extended to a staff judge advocate preparing a 

pretrial advice for "a referring authority." United States v. 

Hardin, 7 M.J. 399, 403 n.3 (C.M.A. 1979). 

 We believe that the rationale in Hardin correctly reflects 

the intent of Article 6(c). The plain language of the provision 

states that it applies to a staff judge advocate acting for a 

reviewing authority. All of the instances where we have found 

violations of Article 6(c) involve subsequent actions for a 

reviewing authority. See, e.g., United States v. Edwards, 45 

M.J. 114, 116 (C.A.A.F. 1996); Jolliff, 22 C.M.A. 95, 46 C.M.R. 

95; United States v. Marsh, 20 C.M.A. 42, 42 C.M.R. 234 (1970); 
United States v. Stirewalt, 03-0433/CG 

16 

United States v. Crunk, 4 C.M.A. 290, 15 C.M.R. 290 (1954); 

Coulter, 3 C.M.A. 657, 14 C.M.R. 75. 

When this matter was remanded, the options for the 

convening authority were limited by the appellate court to 

ordering a rehearing on findings and sentence, or a rehearing on 

sentence alone. 53 M.J. at 592. The convening authority did 

not have the option of reassessing the sentence or any option 

which would trigger the type of "reviewing authority" functions 

referenced in Article 6(c). By the very nature of the remand, 

Commander Baumgartner's subsequent involvement was limited to 

providing pre-trial advice rather than advice to a reviewing 

authority. 

While we can envision situations where a case has been 

remanded to a convening authority with no such limitations, 

which may trigger the consideration of “reviewing authority” 

functions, that is not the situation here. As Commander 

Baumgartner’s subsequent participation in this case did not 

involve a “reviewing authority,” Article 6(c) is not applicable 

to this factual situation and we need not address the issue as 

to whether prejudice is presumed under Article 6(c). 

C. Constitutionality of Sodomy Conviction

 At his rehearing, Stirewalt entered a guilty plea and was 

convicted of one specification of sodomy under Article 125, 

UCMJ, 10 U.S.C. § 925 (2000). He now contends that his guilty 
United States v. Stirewalt, 03-0433/CG 

17 

plea and conviction should be set aside in light of the United 

States Supreme Court's decision in Lawrence v. Texas, 539 U.S. 

558 (2003). 

 The specification that Stirewalt stands convicted under 

originally alleged that he “did, at or near Mobile, Alabama, on 

or about 8 December 1996, commit sodomy with [LTJG B], by force 

and without the consent of [LTJG B].” He entered a guilty plea 

to this specification, with the words “by force and without the 

consent of [LTJG B]" excepted and withdrawn. The stipulation of 

fact underlying his guilty plea indicates that 

[o]n the late evening of 07 December 1996, HS2 Stirewalt 

and [LTJG B] spoke by phone. Near midnight of that 

evening, HS2 Stirewalt proceeded to her apartment complex . 

. . . After knocking on the front door, HS2 Stirewalt was 

allowed inside by [LTJG B], who at the time of entry, was 

on the telephone with a fellow Coast Guard officer, LTJG 

Heidi Rumazza. After entering the apartment, HS2 Stirewalt 

spoke to Ms. Rumazza for approximately one minute before 

handing the telephone back to [LTJG B]. [LTJG B] then hung 

the phone up, sat down on a chair in her living room and 

began conversing with HS2 Stirewalt. After approximately 

20 minutes of conversation, [LTJG B] moved into her 

bedroom. HS2 Stirewalt followed her into her bedroom. HS2 

Stirewalt climbed into bed with [LTJG B] and the two 

engaged in "sodomy." 

We recently concluded in United States v. Marcum, 60 M.J. 

198 (C.A.A.F. 2004), that constitutional challenges to Article 

125 based on the Supreme Court’s decision in Lawrence must be 

addressed on an as applied, case-by-case basis. We identified a 

tripartite framework for addressing Lawrence challenges within 

the military context: 
United States v. Stirewalt, 03-0433/CG 

18 

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? 539 

U.S. at 578. 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. 

In regard to the first two prongs of this tripartite 

framework, we will assume without deciding that Stirewalt’s 

conduct falls within the liberty interest identified by the 

Supreme Court and does not encompass behavior or factors outside 

the Lawrence analysis. Stirewalt’s conduct, however, squarely 

implicates the third prong of the framework. That question asks 

whether there are “additional factors relevant solely in the 

military environment,” not addressed by the Supreme Court, that 

“affect the reach and nature of the Lawrence liberty interest” 

in the context presented. Id. at 207. It is clear that such 

factors exist here. 

Stirewalt’s conduct with [LTJG B] was more than a personal 

consensual relationship in the privacy of an off-base apartment. 

At the time of this relationship, [LTJG B] was one of seven 

officers on the USCGC SWEETGUM, a cutter with a crew of only 42. 

The conduct in question occurred between a commissioned 

department head and her subordinate enlisted crew member: 

Romantic relationships between members are unacceptable 

when: (1) Members have a supervisor and subordinate 
United States v. Stirewalt, 03-0433/CG 

19 

relationship . . ., or (2) Members are assigned to the same 

small shore unit (less than 60 members), or (3) Members are 

assigned to the same cutter . . . The nature of operations 

and personnel interactions on cutters and small shore units 

makes romantic relationships between members assigned to 

such units the equivalent of relationships in the chain of 

command and, therefore, unacceptable. This policy applies 

regardless of rank, grade, or position. 

Coast Guard Personnel Manual, para. 8.H.2.f. (change 26, 1988) 

(Unacceptable Romantic Relationships). 

“Coast Guard policy prohibits the following relationships 

or conduct, regardless of rank, grade, or position of the 

persons involved . . . Romantic relationships outside of 

marriage between commissioned officers and enlisted personnel.” 

Id. at para. 8.H.2.g. (Prohibited Relationships). 

“Interpersonal relationships which raise even a perception of 

unfairness undermine good leadership and military discipline.” 

Id. at para. 8.H.1.c. (Leadership and Military Discipline). 

In Marcum, we noted that due to concern for military 

mission accomplishment, "servicemembers, as a general matter, do 

not share the same autonomy as civilians." Marcum, 60 M.J. at 

206. We consider Stirewalt's zone of autonomy and liberty 

interest in light of the established Coast Guard regulations and 

the clear military interests of discipline and order that they 

reflect. Based on this analysis, we conclude that Stirewalt's 

conduct fell outside any protected liberty interest recognized 

in Lawrence and was appropriately regulated as a matter of 
United States v. Stirewalt, 03-0433/CG 

20 

military discipline under Article 125. The fact that Stirewalt 

as the subordinate enlisted crew member was charged does not 

alter the nature of the liberty interest at stake. As a result, 

Article 125 is constitutional as applied in the present case. 

DECISION

 The decision of the United States Coast Guard Court of 

Criminal Appeals is affirmed. 
United States v. Stirewalt, No. 03-0433/CG 

 CRAWFORD, Chief Judge (concurring in part and in the 

result): 

 I agree with the result in this case but I “would reserve 

for another day the questions of whether and how Lawrence [v.

Texas, 539 U.S. 558 (2003)] applies to the military.”1 Like 

United States v. Marcum, “the factual differences between 

Lawrence and Appellant’s case are striking” for the reasons 

mentioned by the majority as well as the circumstances 

surrounding the charges themselves.2

 “Unlike the petitioners in 

Lawrence, who were both charged with, and convicted of, 

consensual sodomy without any evidence of force,” there was 

“probable cause that Appellant committed the general offense 

described in Article 125 with the added element of force,”3

notwithstanding the reversal of his first conviction. Thus, 

this is not a case where there was no evidence of force 

whatsoever. And as the majority notes, this case is one of the 

exceptions to Lawrence.4

 

 

1

 60 M.J. 198, 212 (C.A.A.F. 2004)(Crawford, C.J. (dissenting on 

Issue I and concurring in the result on Issue III). 

2

 Id.

 

3

 Id. at 214. 

4

 The present case does not “involve minors, it does not involve 

persons who might be injured or coerced who are situated in 

relationships where consent might not easily be refused.” 

Lawrence, 539 U.S. at 578. 
United States v. Stirewalt, No. 03-0433/CG 

2

 If the facts and circumstances of Appellant’s case fit into 

one of the enumerated Lawrence exceptions, then it only 

logically follows that it is not necessary even to assume that 

the Lawrence constitutional analysis applies. 

 Thus, I concur in part and in the result.