This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Fernando M. BROWN, Chief Machinery Technician

United States Coast Guard, Appellant

No. 22-0249

Crim. App. No. 001-69-21

Argued January 24, 2023—Decided October 23, 2023

Military Judge: Ted R. Fowles

For Appellant: Scott Hockenberry, Esq. (argued); 

Lieutenant Commander Kristen R. Bradley (on 

brief).

For Appellee: Lieutenant Commander Daniel P. 

Halsig Jr. (argued); Lieutenant Elizabeth Ulan.

Chief Judge OHLSON announced the judgment of 

the Court, in which Judge SPARKS, Judge MAGGS, 

Judge HARDY, and Judge JOHNSON joined in part.

Judge SPARKS filed a separate opinion concurring

in part and dissenting in part, in which Judge 

JOHNSON joined. Judge HARDY filed a separate

opinion concurring in part and dissenting in part, in 

which Judge MAGGS joined in part.

_______________
United States v. Brown, No. 22-0249/CG

Judgment of the Court

2

Chief Judge OHLSON announced the judgment of the 

Court.

Sometimes a seemingly simple statute can be devilishly 

difficult to interpret. As reflected by the various opinions 

in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) 

(2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds 

that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs 

outside the physical presence of the victim. Importantly, 

that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be 

criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when 

the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that 

under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful 

language or behavior the victim was then in the execution 

of his or her office. The reasons for these conclusions are 

explained below.

I. Background

Appellant was stationed aboard the United States 

Coast Guard Cutter (USCGC) Polar Star. Senior Chief

Petty Officer (SCPO) K.B., the ship’s Command Senior 

Chief, created a text group consisting of the cutter’s eleven 

chief petty officers. This text group—colloquially referred 

to as the “Chief’s Mess”—was designed to pass along workrelated information because the crew was geographically 

separated while the cutter was in dry dock. There was no 

explicit order to participate in the text group. However, 

during his court-martial testimony SCPO K.B. agreed with 

the trial counsel that it would be inappropriate for a chief 

petty officer to ignore a “crew issue” even if it was raised

outside of work hours. All group members used their personal cell phones to access the texts. Although the text
United States v. Brown, No. 22-0249/CG

Judgment of the Court

3

group sometimes encompassed “some levity” and “friendly 

conversations,” it was otherwise “all work-related.”

The three instances of disrespect for which Appellant 

was convicted consisted of messages he sent to the text 

group which contained either modified pictures of, or specific references to, one of his three fellow chief petty officers: Chief Petty Officer (CPO) J.D., SCPO K.B., and CPO

S.C. The first instance occurred when CPO J.D., while 

working on the cutter, sent a picture of himself to the text

group. Appellant modified the photo by adding a crude 

drawing of male genitalia to CPO J.D.’s forehead and then 

resent the image to the group. CPO J.D. was “down in dry 

dock” when he received the message from Appellant. Upon 

seeing that he received the text, CPO J.D. checked his 

phone to “keep track of what was going on throughout the 

text message stream, [and to see] if there was anything . . . pertinent.” 

The second instance occurred after SCPO K.B. missed a 

chief’s call. Appellant sent a picture which depicted a scantily clad man along with a text stating: “Found out why 

[K.B.] missed chiefs [sic] call.” This text was sent at

7:39 p.m., outside of regular duty hours.

The third instance occurred when Appellant sent a picture of CPO S.C.’s high school yearbook photo with the 

added caption: “Voted most likely to steal your bitch.” CPO

S.C. identifies as lesbian, a fact which was known among 

the Chief’s Mess. At the time she received the disrespectful 

message she was on convalescent leave. CPO S.C. testified 

that she felt embarrassed when Appellant posted the photo 

to the group.

A special court-martial composed of a military judge sitting alone convicted Appellant, contrary to his pleas, of 

three specifications of disrespect towards a noncommissioned officer in violation of Article 91(3), and one specification of sexual harassment in violation of Article 92, 

UCMJ, 10 U.S.C. § 892 (2018). The military judge sentenced Appellant to reduction to E-4, a reprimand, and restriction for thirty days. The convening authority approved 
United States v. Brown, No. 22-0249/CG

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4

the sentence. Upon application of Appellant, the Judge Advocate General of the Coast Guard sent the case to the 

United States Coast Guard Court of Criminal Appeals 

(CCA) pursuant to Article 69(d), UCMJ, 10 U.S.C. § 869(d) 

(2018). The CCA set aside and dismissed the Article 92 

charge and its specification, affirmed the remaining findings, and reassessed the sentence, reducing Appellant to 

E-6 but otherwise affirming the sentence. We granted review of the following issue:

Are Appellant’s convictions under Article 91 legally insufficient where there is an absence of evidence that the charged conduct occurred in the 

sight, hearing, or presence of the alleged victims 

while they were in the execution of their office?

United States v. Brown, 83 M.J. 64 (C.A.A.F. 2022) (order 

granting review). We affirm in part and reverse in part the 

decision of the CCA.

II. Standard of Review

Questions of legal sufficiency are reviewed de novo. 

United States v. Wilson, 76 M.J. 4, 6 (C.A.A.F. 2017) (citing 

United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)). In 

reviewing for legal sufficiency, this Court considers 

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a 

reasonable doubt.” Id. (citation omitted) (internal quotation marks omitted).

Questions of statutory construction are also reviewed de 

novo. Wilson, 76 M.J. at 6 (citing United States v. Atchak, 

75 M.J. 193, 195 (C.A.A.F. 2016)). “[I]t is axiomatic that 

‘[i]n determining the scope of a statute, we look first to its 

language.’ ” United States v. Murphy, 74 M.J. 302, 305 

(C.A.A.F. 2015) (alterations in original) (quoting United 

States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014)). “The 

inquiry ceases if the statutory language is unambiguous 

and the statutory scheme is coherent and consistent.” 

United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 

2014) (internal quotation marks omitted) (quoting Barnhart v. Sigmon Coal Co., Inc. 534 U.S. 438, 450 (2002)). Of 
United States v. Brown, No. 22-0249/CG

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5

note, “we are not bound by the President’s interpretation of 

the elements of substantive offenses.” Wilson, 76 M.J. at 6 

(citing United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 

1998)). Nonetheless, “when the President’s narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and we 

will not normally disturb that construction.” Id. (citing 

Murphy, 74 M.J. at 310).

III. Discussion

The relevant text of Article 91(3) states: “Any warrant 

officer or enlisted member who . . . treats with contempt or 

is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while 

that officer is in the execution of his [or her] office . . . shall 

be punished as a court-martial may direct.”

Appellant’s argument before this Court can largely be 

distilled into two prongs: (1) Do the provisions of Article 

91(3) encompass those instances where an accused remotely uses digital communication technology? And if so, 

(2) does the victim have to be “in the execution of . . . office” 

at the time the accused conveys the disrespectful language 

or behavior, or is it sufficient for the victim to be in the execution of office at the time the victim views or hears the 

disrespectful language or behavior? We address each of 

these prongs in turn.

A. Prong One: Within Sight, Hearing, or Presence1

As shown above, the language of Article 91(3) is quite 

broad. However, the elements supplied by the President 

narrow the scope of the offense. In pertinent part, the elements make it a crime for “a warrant or enlisted member”

to use disrespectful language or behavior “toward and 

1 Judge Sparks and Judge Johnson concur with this section. 

See United States v. Brown, 83 M.J. __, __ (1) (C.A.A.F. 2023) 

(Sparks, J., with whom Johnson, J., joins, concurring in part and 

dissenting in part). Judge Maggs and Judge Hardy dissent from 

this section. See Brown, 83 M.J. at __ (7-8) (Hardy, J., with whom

Maggs, J., joins in part, concurring in part and dissenting in 

part).
United States v. Brown, No. 22-0249/CG

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6

within sight or hearing of a [victim] warrant officer, noncommissioned, or petty officer.” Manual for Courts-Martial, United States pt. IV, para. 17.b.(3)(c) (2019 ed.) (MCM) 

(emphasis added); see also id. para. 17.c.(5) (explaining 

that the word “ ‘[t]oward,’ ” as used in subsection (c), “requires that the behavior and language be within the sight 

or hearing of the warrant, noncommissioned, or petty officer concerned” (emphasis added)). Because the President 

had the authority to constrict the scope of the statute in 

this manner, it is the President’s language contained 

within the elements of the MCM that guides our analysis.

Wilson, 76 M.J. at 6.

Appellant argues that an offense under Article 91(3)—

particularly in light of the elements supplied by the President—can occur only if the accused and the victim were in 

“physical proximity” at the time of the charged conduct. 

Thus, it would appear that Appellant’s position is that a 

servicemember can convey to a victim recipient a disrespectful and public message through any medium—text, 

telephone, email, video communication, social media, etc.—

yet avoid punishment if the offending sender was not physically proximate to the victim when the conduct occurred. 

It is essential to note, however, that language requiring

physical proximity between an accused and a victim is 

absent from both the statutory language of Article 91(3) 

and from the listed elements.2 Rather, all that is required 

2 The President has defined the elements of Article 91(3) as: 

 (a) That the accused was a warrant officer or 

enlisted member; 

 (b) That the accused did or omitted certain 

acts, or used certain language; 

 (c) That such behavior or language was used 

toward and within sight or hearing of a certain 

warrant, noncommissioned, or petty officer; 

 (d) That the accused then knew that the person 

toward whom the behavior or language was directed was a warrant, noncommissioned, or petty 

officer; 
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Judgment of the Court

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under element (c) is that the disrespectful language or 

behavior was within the sight or hearing of the victim. 

Indeed, we note that the explanation of Article 91 refers 

the reader back to the discussion of “disrespect” in Article 

89, UCMJ,3 which states that presence “is not essential.”4

MCM pt. IV, para. 15.c.(2)(c) (emphasis added). In other 

words, regardless of physical proximity, this element is met 

so long as an accused causes his or her disrespectful 

language or behavior to come within the sight or hearing of 

the victim.

Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely 

conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media.

 (e) That the victim was then in the execution of 

office; and

 (f) That under the circumstances the accused, 

by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer.

MCM pt. IV, para. 17.b.(3)(a)-(f). There are two additional elements if the victim was the superior noncommissioned or petty 

officer of the accused. Id. para. 17.b.(3)(g)-(h). These additional 

elements apply only to the specification regarding SCPO K.B. 

These additional elements are not at issue in this case.

3 Disrespect toward superior commissioned officer; assault of 

superior commissioned officer, Article 89, UCMJ, 10 U.S.C. § 889 

(2018).

4 The President’s explanatory text accompanying Article 91

states: “Article 91 has the same general objects with respect to 

warrant, noncommissioned, and petty officers as Articles 89 and 

90 have with respect to commissioned officers, namely, to ensure 

obedience to their lawful orders, and to protect them from violence, insult, or disrespect.” MCM pt. IV, para. 17.c.(1).
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B. Prong Two: In the Execution of Office5

In order for disrespectful conduct to be a chargeable offense, element (e) of Article 91(3) requires the following: 

“That the victim was then in the execution of office.”6 MCM

pt. IV, para. 17.b.(3)(e) (emphasis added). We conclude that 

this language requires the victim to be in the execution of 

his or her office at the time the accused engages in the disrespectful behavior. We come to this conclusion based on 

our textual analysis of two elements listed in the MCM. 

Elements (d) and (e) list two further conditions that are 

necessary to find a servicemember criminally liable under 

Article 91(3). These two elements require the government 

to show that “the accused then knew that the person toward whom the behavior or language was directed was a 

warrant, noncommissioned, or petty officer” and that “the 

victim was then in the execution of office.” MCM pt. IV, 

para. 17.b.(3)(d)-(e) (emphasis added). It is clear that under 

element (d), the word “then” imposes a requirement that 

the accused knew the military status of the victim at the 

time the accused engaged in the disrespectful behavior. See

id. para. 17.c.(2) (“All of the offenses prohibited by Article 

91 require that the accused have actual knowledge that the 

victim was a warrant, noncommissioned, or petty officer.”); 

cf. United States v. Biggs, 22 C.M.A. 16, 18, 46 C.M.R. 16, 

18 (1972) (concluding there was sufficient evidence “to support the court’s determination that, at the time of the 

5 Judge Maggs and Judge Hardy concur with this section. See 

Brown, 83 M.J. at __ (7-8) (Hardy, J., with whom Maggs, J., joins

in part, concurring in part and dissenting in part). Judge Sparks 

and Judge Johnson dissent from this section. See Brown, 83 M.J. 

at __ (1-4) (Sparks, J., with whom Johnson, J., joins, concurring 

in part and dissenting in part).

6 Paragraph 17 of Part IV of the MCM refers the reader to 

Paragraph 15 for a discussion of the phrase “ ‘in the execution of 

his office.’ ” MCM pt. IV, para. 17.c.(5). “An officer is in the execution of office when engaged in any act or service required or 

authorized by treaty, statute, regulation, the order of a superior, 

or military usage.” Id. para. 15.c.(3)(f).
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Judgment of the Court

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offenses . . . the accused knew the military identity” of his 

victims (emphasis added)).

Element (e) also uses the word “then.” It requires that 

“the victim was then in the execution of office.” MCM pt. 

IV, para. 17.b.(3)(e) (emphasis added). Because of the repeated use of the same word “then” in consecutive MCM 

elements, we conclude this word must have the same 

meaning and effect. See Azar v. Allina Health Servs., 139 

S. Ct. 1804, 1812 (2019) (“This Court does not lightly assume that Congress silently attaches different meanings to 

the same term in the same or related statutes.”). Therefore, 

reading these elements together demonstrates that the victim must be “in the execution of office” at the time the accused engaged in the disrespectful behavior.

This interpretation of element (e) is bolstered by examining the statutory language upon which it is predicated. 

The relevant portion of Article 91(3) prohibits an enlisted 

member from engaging in disrespectful language or behavior towards a petty officer “while that officer is in the execution of his office.” (Emphasis added.) The word “while,” 

when used as a conjunction, means “during the time that.”7

See also Leighton Techs. LLC v. Oberthur Card Sys., S.A., 

358 F. Supp. 2d 361, 386 (S.D.N.Y. 2005) (defining “while” 

to mean “simultaneously or concurrently”). The best interpretation of this language within Article 91(3) is that it imposes a “concurrency requirement” regarding the conduct 

of the accused on the one hand and the official status of the 

victim on the other. Therefore, Appellant’s convictions under Article 91 can stand only if the evidence shows that 

SCPO K.B., CPO J.D., and CPO S.C. were in the execution 

of their office during the time that Appellant conveyed his 

disrespectful language or behavior.8

7 While, Merriam-Webster Unabridged Online Dictionary, 

https://unabridged.merriam-webster.com/unabridged/while

(last visited Oct. 13, 2023).

 8 We acknowledge that our reading of the elements creates 

situations in which a warrant officer or enlisted member cannot

be held criminally liable under Article 91(3) despite using 
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C. Application of the Second Prong to this Case

Having resolved the meaning of Article 91(3), we now 

must determine its application to the facts of Appellant’s

case. 

“Unlike the civilian criminal justice system, the Courts 

of Criminal Appeals have unique fact finding authority . . . .” Diaz v. Judge Advoc. Gen. of the Navy, 59 M.J. 34, 

39 (C.A.A.F. 2003). Exercising its unique factfinding authority here, the lower court determined that the victim officers were “in the execution of their office” anytime they 

opened the Chief’s Mess group text to read a message. See

United States v. Brown, 82 M.J. 702, 708 (C.G. Ct. Crim. 

App. 2022) (“Thus, when the victim chief petty officers 

viewed the messages that Appellant placed within their 

sight, whether they were at home or aboard the cutter, they 

were in the execution of their office.”). It cannot be said that 

this factual finding of the CCA was clearly erroneous. See

United States v. Harris, 61 M.J. 391, 396 (C.A.A.F. 2005) 

(emphasizing that “unlike the lower courts, because we 

have no fact-finding authority, we are prohibited from 

weighing evidence”). Accordingly, the CCA’s determination 

that whenever the officer victims opened the Chief’s Mess 

group text they were “in the execution of their office” is controlling. It is an altogether different question, however, 

blatantly disrespectful language or behavior towards a warrant, 

noncommissioned, or petty officer if the putative victim was not 

in the execution of his or her office at the time of the disrespectful act. Nevertheless, it is not the role of this Court to expand 

the reach of either statutory language passed by Congress or elements of the articles promulgated by the President in order to 

avoid anomalous or undesirable results. Cf. Bostock v. Clayton 

Cnty., Georgia, 140 S. Ct. 1731, 1749 (2020) (“[W]hen the meaning of the statute’s terms is plain, our job is at an end. The people 

are entitled to rely on the law as written, without fearing that 

courts might disregard its plain terms based on some extratextual consideration.”). However, Congress or the President may, 

of course, revise the current language of Article 91(3) and/or its 

elements in order to more comprehensively address disrespectful conduct if they deem it appropriate to do so.
United States v. Brown, No. 22-0249/CG

Judgment of the Court

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whether at the time Appellant sent the texts the victims 

were in the execution of their office.

1. SCPO K.B. and CPO S.C.

It is true that when conducting a legal sufficiency review, “the relevant question an appellate court must answer is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Herrmann, 76 

M.J. 304, 307 (C.A.A.F. 2017) (citation omitted) (internal 

quotation marks omitted). But despite this generous standard, it must be noted that in the instant case the Government failed to introduce evidence demonstrating that two 

of the victims—SCPO K.B. and CPO S.C.—were on duty 

when Appellant sent the texts. For example, the Government did not elicit testimony from SCPO K.B. and CPO

S.C. that they opened the texts concurrent with Appellant

sending them. Therefore, these two convictions cannot 

withstand appellate scrutiny. Accordingly, we set aside the 

findings pertaining to SCPO K.B. and CPO S.C.

2. CPO J.D.

Regarding the remaining victim, CPO J.D. testified he 

was “down in dry dock” when he “received a message” in 

the Chief’s Mess group text. His testimony further reflects 

that he checked his phone when he received this message 

to “keep track of what was going on throughout the text 

message stream, [to see] if there was anything . . . pertinent.” And upon opening the group text, CPO J.D. discovered Appellant’s disrespectful text. Thus, when drawing 

“every reasonable inference from the evidence of record in 

favor of the prosecution,” United States v. Robinson, 77 

M.J. 294, 298 (C.A.A.F. 2018) (citation omitted) (internal 

quotation marks omitted), we conclude there is sufficient 

evidence that CPO J.D. was in the execution of his office at 

the time Appellant engaged in the disrespectful conduct. 

Specifically, because CPO J.D. opened the text concurrent 

with Appellant’s transmission, and because at that point 

CPO J.D. was in the execution of his office by virtue of 
United States v. Brown, No. 22-0249/CG

Judgment of the Court

12

(a) opening the Chief’s Mess group text and (b) being down

at the dry dock, the requirements of the elements of Article 

91(3) are met. Accordingly, we affirm Appellant’s conviction pertaining to CPO J.D.

IV. Judgment9

The decision of the United States Coast Guard Court of 

Criminal Appeals is affirmed as to Charge I and Specification 1 thereunder, but reversed as to Specifications 2 and 4 

of Charge I and as to the sentence. The findings of guilty 

with respect to the latter two specifications are set aside 

and dismissed. The record is returned to the Judge Advocate General of the United States Coast Guard for remand 

to the Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence 

rehearing.

9 Judge Maggs and Judge Hardy join with respect to setting 

aside the offenses involving SCPO K.B. and CPO S.C. but would 

also set aside the offense involving CPO J.D. See Brown, 83 M.J. 

at __ (9 & n.5) (Hardy, J., with whom Maggs, J., joins in part,

concurring in part and dissenting in part). Judge Sparks and 

Judge Johnson join with respect to affirming the offense involving CPO J.D. but would also affirm the offense regarding SCPO

K.B. See Brown, 83 M.J. at __ (4-5) (Sparks, J., with whom Johnson, J., joins, concurring in part and dissenting in part). Therefore, the judgment expressed here is supported by a majority of 

the Court. Cf. Marks v. United States, 430 U.S. 188, 193 (1977) 

(articulating that when a fragmented Court decides a case and 

no single rationale commands the majority, “ ‘the holding of the 

Court may be viewed as that position taken by those Members 

who concurred in the judgment[] on the narrowest grounds’ ”

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion 

of Stewart, Powell, and Stevens, JJ.))).
United States v. Brown, No. 22-0249/CG

Judge SPARKS, concurring in part and dissenting in part

Judge SPARKS, with whom Judge Johnson joins,

concurring in part and dissenting in part.

As noted by the lead opinion, Appellant’s argument 

before this Court can be condensed into two prongs: (1) Do 

the provisions of Article 91(3), Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 891(3) (2018), encompass 

those instances where an accused remotely uses digital 

communication technology? And if so, (2) does the victim 

have to be “in the execution of office” at the time the 

accused conveys the disrespectful language or behavior, or 

is it sufficient for the victim to be in the execution of office 

at the time the victim views or hears the disrespectful 

language or behavior?

First, I agree with the lead opinion that an accused 

servicemember can be convicted under Article 91(3), 

UCMJ, even if his or her disrespectful conduct occurs 

outside the physical presence of the victim. Under 

Appellant’s interpretation of the elements, a 

servicemember could convey a disrespectful message 

through any medium to the victim recipient—text, 

telephone, mail, video communication, etc., yet avoid 

punishment simply because the offending sender was not 

physically proximate to the victim when the disrespectful 

conduct or language was committed or communicated. This 

result would plainly conflict with the article’s intent and 

the overall statutory scheme: promoting good order and 

discipline via punishment of disrespect to 

noncommissioned officers. See Manual for Courts-Martial, 

United States, pt. IV, para 17.c.(1) (2019 ed.) (MCM). 

My disagreement is with the lead’s holding that under 

Article 91(3), UCMJ, the victim must be in execution of his 

or her office at the time the accused engages in the 

disrespectful conduct. For the reasons discussed below, in 

my view, the victim must be in the execution of his or her 

office at the time the victim views or hears the disrespectful 

conduct.

I. In the Execution of Office

In order for disrespectful conduct to be a chargeable 

offense, element (e) of Article 91(3), UCMJ, requires: “That 

the victim was then in the execution of office.” MCM, pt. 
United States v. Brown, No. 22-0249/CG

Judge SPARKS, concurring in part and dissenting in part

2

IV, para. 17.b.(3)(e). From Appellant’s perspective there 

are two parts to the “execution of office” analysis: (1) does 

the language of the specification focus on when Appellant 

sent the texts, or when the texts were read or received; and 

(2) is there evidence that the victims were in “ ‘execution of 

[their] office’ ” at the appropriate time, or at all? (Alteration 

in original.)

As for the first part, I conclude that the language of 

Article 91, UCMJ, and the specifications in this case apply 

to when the victims read or received the texts. The 

language of the statute and the elements compel me to 

reject the notion that the operative focus is centered on 

when Appellant sends the text messages. The relevant 

elements state that “the accused did . . . or used certain 

language;” “[t]hat such behavior or language was used 

toward and within the sight or hearing of a certain . . . petty 

officer;” “[t]hat the accused then knew that the person 

toward whom the behavior or language was directed was 

a . . . petty officer;” and “[t]hat the victim was then in the 

execution of office.” MCM pt. IV, para. 17.b.(3)(b)-(e). The 

important point here is that when Appellant engaged in 

the disrespectful conduct, he “then knew” that the victim 

was a noncommissioned officer and that the victim “was 

then” in the execution of office.1 Id. It is tempting to read 

these provisions in the context of the classic situation 

where the target of the conduct or language instantly 

becomes aware of it because the offender and the victim are 

physically within each other’s presence. However, 

Appellant was charged with either sending or distributing 

the images, and neither sending nor distributing are 

necessarily isolated or discrete acts occurring at one 

instantaneous point in time. Here, the act of sending or 

distributing was complete when the communications were 

in the possession of the recipients, i.e., when they were 

delivered. See e.g., Distribute, Black’s Law Dictionary 508

(8th ed. 2004) (“[t]o deliver”). Thus, it is not necessary that 

the record reflect whether the victims were in execution of 

office when Appellant pressed send because it sufficiently 

1 Appellant does not challenge that he “knew” the victims 

were petty officers.
United States v. Brown, No. 22-0249/CG

Judge SPARKS, concurring in part and dissenting in part

3

demonstrates that Appellant knew the victims would 

receive and read the texts, and that they would “then” be 

in execution of office when doing so. See MCM pt. IV, para.

17.b.(3)(b-e).

As to the second part, this Court has held that a 

servicemember may be in “ ‘execution of his office when 

engaged in any act or service required or authorized to be 

done by him, by statute, regulation, the order of a superior, 

or military usage.’ ” United States v. Glaze, 3 C.M.A 168, 

172, 11 C.M.R. 168, 172 (1953) (quoting William Winthrop,

Military Law and Precedents 571 (2d ed., Government 

Printing Office 1920) (1895)). Given that whether one is in 

“execution of office” is a factual inquiry, from a legal 

sufficiency standpoint, we are bound by the military 

judge’s finding as a rational trier of fact. Although there 

was some joking in the group text, the record indicates that 

the primary purpose of the group text was for official work 

reasons. Accordingly, when the chief petty officers 

participated in the group chat, they were in effect working. 

See e.g., Glaze, 3 C.M.A. at 172, 11 C.M.R. at 172 (finding 

that the victim noncommissioned officer was in “execution 

of his office” when in charge of a supply tent despite 

simultaneously fraternizing and drinking alcohol with 

other noncommissioned officers); see generally United 

States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000) 

(supporting the notion that a servicemember need not be 

explicitly on duty in order to be in “execution of his office”); 

United States v. Nelson, 17 C.M.A. 620, 622-23, 38 C.M.R. 

418, 420-21 (1968) (concluding an officer “in execution of 

his office” despite being off-duty and wearing civilian 

clothes when stopping two drunk soldiers from causing a 

scene in public). 

Appellant is correct, however, that there is a temporal 

requirement relating to the disrespectful conduct or 

language occurring “within sight or hearing” of the victim 

and whether the victim is in “ ‘execution of [their] office,’ ” 

as those two conditions must occur contemporaneously. 

The question here is whether the military judge, could have 
United States v. Brown, No. 22-0249/CG

Judge SPARKS, concurring in part and dissenting in part

4

reasonably inferred that the victims read the text messages 

within a reasonable time after Appellant pressed “send.”2

II. Application

a. Senior Chief Petty Officer (SCPO) K.B.

Prosecution Exhibit 9 indicates that Appellant sent the 

image to SCPO K.B. at 7:39 PM. The exhibit displays SCPO

K.B.’s comments regarding his having missed a previous 

chiefs’ meeting. Beneath his comment is the offending 

image sent by Appellant at 7:39 PM. SCPO K.B. confirmed 

that he received the text after working hours but did not 

respond to the sent image. However, SCPO K.B. testified 

that he found the image funny at the time he received it, 

presumably shortly after 7:39 PM. Given the importance 

he and the others placed on checking their phones 

regarding the group texts, his testimony supports the 

conclusion that he checked his phone a relatively short 

time after the text was sent. Thus, after viewing the 

evidence in the light most favorable to the Government, a 

rational trier of fact could have found SCPO K.B. was in 

the execution of his office at the time he saw the text 

message. See Wilson, 76 M.J.at 6. Accordingly, I dissent 

from the lead’s holding to the contrary and would affirm

Appellant’s conviction for this offense. 

b. Chief Petty Officer (CPO) J.D.

I agree with the lead opinion that CPO J.D. was in the 

execution of his office, albeit based on a different 

interpretation, when he opened the group text while being 

down at the dry dock. Accordingly, I concur that we should 

affirm Appellant’s conviction pertaining to CPO J.D. 

2 Consider the following example. A servicemember leaves a 

disrespectful picture on a noncommissioned officer’s desk early 

in the morning before the victim is at work, but the offender 

knows the victim will be there shortly as it is the victim’s 

appointed place of duty. The offender caused the disrespectful 

picture to be within sight of the victim despite not being 

physically or temporally proximate. However, the victim saw the 

picture upon coming to the desk and was thus in the “execution 

of office” at that time. This scenario is no different than the case 

at hand, despite the technological differences.
United States v. Brown, No. 22-0249/CG

Judge SPARKS, concurring in part and dissenting in part

5

c. CPO S.C.

As for CPO S.C., she testified that her light duty status 

prevented her from joining the crew while the ship was in 

dry dock. Nonetheless, she still felt obligated to carry out 

her duties as a chief petty officer. That included checking 

her phone when it notified her that a text from the chiefs’ 

group had been received. However, even under my view 

and considering her response (Defense Exhibit A) to the 

image from her high school yearbook (Prosecution 

Exhibit 5) posted by Appellant, it is difficult to conclude the 

evidence is sufficient with respect to the allegation 

pertaining to her. Here, unlike with SCPO K.B., it is 

unknown when CPO S.C. opened the text message in 

question. Accordingly, I concur with the lead opinion that 

we should set aside and dismiss this specification.
United States v. Brown, No. 22-0249/CG

Judge HARDY, with whom Judge MAGGS joins with 

respect to Part II, concurring in part and dissenting in part.

As relevant here, Congress has broadly criminalized 

any conduct by an enlisted servicemember that “treats 

with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or 

petty officer, while that officer is in the execution of his office.” Article 91, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 891 (2018). Absent any narrowing construction 

by the President, this broad language likely would proscribe Appellant’s actions in this case. Nevertheless, the elements and explanation of Article 91, UCMJ, promulgated 

by the President in the Manual for Courts-Martial, United 

States (2019 ed.) (Manual or MCM), require that the accused perform his disrespectful act within the sight or 

hearing of the victim for the conduct to be criminal. MCM

pt. IV, para. 17.b.(3)(c). Because the record contains no evidence that Appellant’s disrespectful behavior occurred 

within the sight or hearing of the alleged victims, I would 

hold that the United States Coast Guard Court of Criminal 

Appeals (CGCCA) should be reversed as to Specifications 1, 

2, and 4 of Charge I, and that the findings of guilty with 

respect to those three specifications should be set aside and 

dismissed.1

I. The President’s Elements to Article 91(3), UCMJ,

Control the Analysis

The granted issue in this case asks whether Appellant’s 

convictions under Article 91(3), UCMJ, were legally 

1 Putting aside the question whether an accused’s conduct 

must be performed in the sight or hearing of the victims, I also 

agree with Chief Judge Ohlson that the elements and explanation of Article 91(3), UCMJ, impose a concurrency requirement 

on the offense, such that the conduct of an accused must occur 

when the target of his contempt or disrespect was in the execution of his office. United States v. Brown, __ M.J. __ , __ (9)

(C.A.A.F. 2023). Because the Government introduced no evidence establishing whether the targeted petty officers in Specifications 2 and 4 of Charge I were in the execution of office when 

Appellant acted, I agree with Chief Judge Ohlson that the 

CGCCA should be reversed with respect to those two Specifications for this additional reason. Id. at __ (11).
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

2

insufficient because there is no evidence that his disrespectful behavior occurred “within the sight or hearing” of 

the victims. MCM pt. IV, para. 17.b.(3)(c). This so-called 

“presence” requirement does not appear in the text of Article 91(3), UCMJ, but rather is an element of the offense 

that the President has specified in the Manual. This raises 

the interesting question—briefed extensively by the parties—whether the President has the authority to narrow a 

statutory offense by adding elements that must be proven 

beyond a reasonable doubt beyond those requirements expressly stated by Congress in the text of the article.

In its briefs, the Government argues that we need only 

consider the text of Article 91(3), UCMJ, to determine the 

legal sufficiency of Appellant’s convictions without any consideration of the President’s elements presented in the 

Manual. The Government contends that the President’s 

guidance—issued pursuant to an express delegation of authority from Congress in Article 36, UCMJ, 10 U.S.C. § 836

(2018), and through the President’s inherent constitutional 

authority as commander-in-chief, U.S. Const. art. II, § 2, 

cl. 1—can be ignored unless it unambiguously narrows the 

scope of the offense’s statutory language. The Government 

abandoned this line of reasoning at oral argument conceding that it must prove every element enumerated by the 

President in the Manual to convict a servicemember of an 

offense under the UCMJ.2 In light of the Government’s concession, it is no longer strictly necessary to answer this 

question to decide this case. Nevertheless, given the importance of this threshold question and the extensive briefing already presented in this case, I think it is worth considering whether the President’s elements are relevant to 

the legal sufficiency of Appellant’s challenged offenses.

Possibly the best support for the Government’s 

argument comes from an opinion from our predecessor 

Court stating that “the President’s rule-making authority 

does not extend to matters of substantive military criminal 

law.” Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988). 

Twenty years earlier, our predecessor had similarly 

2 Oral Argument at 30:06-32:34, United States v. Brown

(C.A.A.F. Jan. 24, 2023) (No. 22-0249).
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

3

suggested that the President’s elements may “be 

disregarded if they are ‘no more than an attempted 

addition to the statute of something which is not there.’ ”

United States v. Margelony, 14 C.M.A. 55, 57-58, 33 C.M.R. 

267, 269-70 (1963) (quoting United States v. Calamaro, 354 

U.S. 351, 359 (1957)). Although the language in those 

precedents might be interpreted as suggesting that the 

President lacks any authority to promulgate elements 

narrowing the scope of a statutory criminal offense 

(because doing so exceeds the scope of the delegation of 

authority made to the President by Congress in Article 36, 

UCMJ), I do not believe that that is the best reading of 

those cases.

I read those precedents as only holding that the President lacks the authority to create new criminal offenses or 

to expand the scope of the statutory offenses enacted by 

Congress. This reading has two benefits. First, it does not 

call into question the past seven decades of military justice 

practice during which the President’s elements have defined how the government establishes guilt for crimes prosecuted under the UMCJ. And second, this reading is consistent with our precedent, where we have permitted the 

President to narrow—but not to expand—the applicable 

scope of the statutory UCMJ offenses. See, e.g., United 

States v. Jenkins, 7 C.M.A. 261, 262, 22 C.M.R. 51, 52 

(1956) (refusing to enforce the President’s expansion of Article 83, UCMJ, to include inductees); United States v. 

Rushlow, 2 C.M.A. 641, 644, 10 C.M.R. 139, 142 (1953) (refusing to enforce the President’s guidance that a contingent 

purpose to return qualifies as an intent to remain away 

permanently for the purpose of Article 85, UCMJ). But 

whether or not Article 36, UCMJ—or possibly the commander-in-chief clause of the Constitution—grants the

President authority to promulgate additional elements to 

statutory UCMJ offenses, I believe that there is a greater 

constitutional concern that would prevent this Court from 

disregarding the President’s guidance in the Manual.

This Court has long held that “[w]here the President’s 

narrowing construction is favorable to an accused and is 

not inconsistent with the language of a statute, ‘we will not 

disturb the President’s narrowing construction, which is an 
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

4

appropriate [e]xecutive branch limitation on the conduct 

subject to prosecution.’ ” United States v. Guess, 48 M.J. 69, 

71 (C.A.A.F. 1998) (quoting United States v. Davis, 47 M.J. 

484, 486-87 (C.A.A.F. 1998)). In my view, the deference the 

Court gives the President in these matters is not simply a 

courtesy but is also necessary to uphold fundamental principles of notice and due process. 

The Supreme Court has explained that “[t]he essence of 

due process is the requirement that a person in jeopardy of 

serious loss [be given] notice of the case against him and 

opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 

348-49 (1976) (second alteration in original) (internal quotation marks omitted) (citation omitted). Accordingly, our 

predecessor Court recognized that “[a]n accused must be on 

notice that his conduct is unlawful and that the article 

fairly informs ‘that particular conduct which he engaged in 

was punishable.’ ” United States v. Guerrero, 33 M.J. 295, 

297 (C.M.A. 1991)) (quoting Parker v. Levy, 417 U.S. 733, 

755 (1974)). Requiring the government to prove every element as enumerated and explained by the President is necessary to protect servicemembers’ due process rights by ensuring that they bear no criminal liability for conduct that 

the President has publicly and officially deemed noncriminal in the Manual.

Servicemembers are justified in relying on the President’s guidance for fair notice of what conduct is criminal 

under the UCMJ for two reasons. First, the President issued and updates the Manual via executive order pursuant 

to express statutory authority under Article 36, UCMJ.3

When the President issues an executive order “pursuant to 

a mandate or a delegation of authority from Congress” that 

order has “the force and effect of laws.” Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 7 (3d Cir. 1964); see also Maryland Casualty Co. v. United States, 251 U.S. 342, 349 

3 See 2023 Amendments to the Manual for Courts-Martial, 

United States, Exec. Order No. 14,103, 88 Fed. Reg. 50,535 (July

28, 2023) (updating the current version of the 1984 Manual); 

Manual for Courts-Martial, United States, 1984, Exec. Order No. 

12,473, 49 Fed. Reg. 17,152 (Apr. 13, 1984) (prescribing the 1984 

Manual and rescinding all previous editions).
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

5

(1920) (noting that it is a settled principle of law that “a 

regulation by a department of government, addressed to 

and reasonably adapted to the enforcement of an act of 

Congress . . . has the force and effect of law if it be not in 

conflict with express statutory provision”). Because Congress has delegated to the President the authority to prescribe regulations for courts-martial, and because all the 

actors in the military justice system are members of the 

executive branch to whom the President’s executive order 

lawfully applies, the President’s guidance is legally binding 

on the military justice system.4

Second, when the President enumerates elements in 

the Manual, he is informing the military community what 

conduct is criminal under the UCMJ pursuant to his inherent constitutional authority as commander-in-chief. The 

President’s enumeration of criminal elements is an exercise of prosecutorial discretion that functions as a lawful 

order to commanders and trial counsel, that they must 

prove every element before an accused can be convicted of 

an offense by courts-martial. As the Government conceded 

at oral argument, see supra note 2 and accompanying text,

it has no authority to deviate from the President’s elements 

when charging servicemembers with crimes under the 

UCMJ. Servicemembers are thus fully justified, for notice 

and due process purposes, in relying on the President’s 

4 One notable exception to this rule, of course, are the judges 

of this Court, who enjoy the constitutionally curious status of 

executive branch officers who are empowered to act independently of the President because they have statutory tenure 

protection. See Humphrey’s Ex’r v. United States, 295 U.S. 602,

632 (1935) (holding that Congress may create executive branch 

agencies led by a group of principal officers removable by the 

President only for good cause); Article 142(c), UCMJ, 10 U.S.C. 

§ 942(c) (2018). Although the scope of Congress’s authority under Humphrey’s Ex’r to create independent executive branch officers has recently come under increased scrutiny, this Court’s 

constitutional status as a multimember panel of principal officers that performs a judicial function seems secure. See Seila L. 

LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2199 (2020) 

(describing the limits of Congress’s power to create independent 

executive branch entities).
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

6

lawful order to describe the scope of conduct considered 

criminal under the UCMJ.

The President’s guidance in the Manual puts all servicemembers on notice of what conduct is proscribed and 

what must be proven to put their personal liberty in jeopardy. Even if this Court were eventually to decide that Article 36, UCMJ, does not authorize the President to promulgate elements for the UCMJ offenses, convicting a 

servicemember for conduct that fell outside the scope of 

conduct described by the President in the Manual would 

still violate the servicemember’s fundamental due process 

rights because under the current state of the law, servicemembers are entitled to rely on the President’s orders—as 

published in the Manual—until and unless those orders 

are declared to be unlawful.

II. Legal Sufficiency of Appellant’s

Convictions Under Article 91(3)

I turn now to the granted question in this case, whether 

Appellant’s challenged convictions under Article 91, 

UCMJ, were legally insufficient. Specification 1 alleged 

that Appellant engaged in disrespectful conduct “by modifying a digital photograph of Chief Petty Officer [J.D.] to 

include a depiction of male genitalia on his head and distributing it to the POLAR STAR Chief’s Mess.” (Emphasis 

added.) Specification 2 alleged that Appellant engaged in 

disrespectful conduct “by modifying a digital image of Chief 

Petty Officer [S.C.]’s high school yearbook photograph to 

include the phrase ‘[v]oted most likely to steal your bitch’ 

and distributing it to the POLAR STAR Chief’s Mess.” (Second alteration in original.) (Emphasis added.) Specification 

4 alleged that Appellant engaged in disrespectful conduct 

“by sending a digital image of a scantily clad male to the 

POLAR STAR Chief’s Mess and alleging that the scantily 

clad male was the reason Senior Chief Petty Officer [K.B.] 

was unable to attend a Chief’s Call, or words to that effect.” 

(Emphasis added.) Applying the President’s elements, the 

question presented can be broken down into two components. First, whether Appellant’s disrespectful behavior 

was “used toward and within sight or hearing” of the 

named petty officers.’ MCM pt. IV, para. 17.b.(3)(c). And 

second, whether those petty officers were “then in the 
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

7

execution of office” when Appellant committed the disrespectful acts. MCM pt. IV, para. 17.b.(3)(e).

A. The Elements of Article 91(3) Must

Be Satisfied Simultaneously

I agree with Chief Judge Ohlson that the language of 

Article 91(3)’s elements mandates that those elements be 

satisfied simultaneously for the accused’s conduct to be 

criminal, and therefore agree that Appellant’s convictions 

as to Specifications 2 and 4 of Charge I should be reversed. 

Brown, __ M.J. at __ (9-11). I believe, however, that there 

is a more straightforward means of resolving this case under which Appellant’s convictions as to Specifications 1, 2, 

and 4 of Charge I should be reversed.

B. Appellant’s Disrespectful Behavior Was Not

Performed Within the Sight or Hearing

of the Named Petty Officers

As applicable here, to convict Appellant of the charged 

Article 91(3) offenses, the Government was required to 

prove, inter alia: “[t]hat the accused did . . . certain acts” 

and “[t]hat such behavior . . . was used toward and within 

sight or hearing” of the named petty officers. MCM pt. IV, 

para. 17.b.(3)(b)-(c). The most straightforward meaning of 

the requirement that the disrespectful behavior must occur

“within the sight or hearing” of a certain petty officer is 

that the accused must have committed disrespectful acts at 

a time when, and in a place where, the petty officer could 

see or hear the accused commit the disrespectful acts. In 

this case, the Government did not prove that Appellant 

committed the charged disrespectful acts—“modifying,” 

“distributing,” and “sending” photos and messages—at 

times when, and in places where, the named petty officers 

could see or hear Appellant commit these disrespectful 

acts. Therefore, the evidence did not show that these disrespectful acts occurred “within the sight or hearing” of the 

named petty officers.

To be sure, the disrespectful messages that Appellant 

sent did reach and were eventually viewed by the chief 

petty officers. But those disrespectful messages were the 

product of Appellant’s disrespectful acts, not the acts of 

“modifying,” “distributing,” or “sending” with which 
United States v. Brown, No. 22-0249/CG

Judge HARDY, concurring in part and dissenting in part

8

Appellant was charged. For these reasons, I find the 

evidence to be legally insufficient to prove Appellant guilty 

of disrespectful deportment in violation of Article 91(3), 

UCMJ, under the elements specified by the President.

This interpretation of Article 91(3), UCMJ’s elements 

may seem overly strict, but I am unaware of any case before 

today in which this Court affirmed a finding that an accused was guilty of an offense under Article 91(3), UCMJ, 

where the accused engaged in disrespectful behavior at a 

time when, or in a place where, the disrespected warrant, 

noncommissioned, or petty officer could not see or hear that 

behavior. Moreover, as noted by Chief Judge Ohlson, “it is 

not the role of this Court to expand the reach of either statutory language passed by Congress or elements of the articles promulgated by the President in order to avoid anomalous or undesirable results.” Brown, __ M.J. at __ n.8 (9

n.8). Nor do I mean to suggest that I believe—as Appellant 

argues—that the elements of Article 91(3), UCMJ, impose 

a physical presence requirement. Modern communications 

technology might bring an accused’s conduct “within the 

sight or hearing” of the accused’s intended victim. Nevertheless, when the government charges an accused with 

committing disrespectful acts—as it did in this case—the 

government must prove that those acts were committed 

“within sight or hearing” of the victim. MCM pt. IV, 

para. 17.b.(3)(b). Because the Government failed to do so in 

this case, the findings of guilty with respect to Specifications 1, 2, and 4 of Charge I are not legally sufficient.

III. Conclusion

Because the record indicates that Appellant did not create or send the disrespectful text messages within the sight 

or hearing of any of the alleged victims, I would hold that 

his Article 91(3) convictions are not legally sufficient and 

reverse the decision of the CGCCA with respect to Specifications 1, 2, and 4 of Charge I.5

5 In the alternative, I agree with Chief Judge Ohlson that 

Appellant’s Article 91(3) convictions with respect to 

Specifications 2 and 4 of Charge I were not legally sufficient, and 

I would reverse the CGCCA with respect to those two 

specifications.