Last month the Air Force Court of Criminal Appeals issued its decision in United States v. Henderson. TSgt Henderson was a technical trainer for entry-level trainees from 2016-2020. TSgt Henderson made several comments to and about two female trainees within his 12-person class. He made sexualized comments about the two trainees in front of the entire class and specific comments soliciting sex to the trainees individually. After transferring in 2020, allegations concerning this behavior emerged. He was eventually charged with several specifications of violating AFI 36-2909 Air Force Professional Relationships and Conduct. Paragraph 4.2.1.1 states that trainers who provide entry-level training will not develop, attempt to develop, or conduct a sexual relationship with a trainee. Paragraph 4.2.1.3 states that trainers will not make sexual advances towards a trainee.
At trial, TSgt Henderson was convicted of two specifications of violating the general regulation by wrongfully attempting to develop a sexual relationship with one of the trainees and by wrongfully making sexual advances towards the other. TSgt Henderson was sentenced to reduction to E-4, 30 days hard labor without confinement, forfeiture of $1000 pay per month for two months, and a reprimand.
On appeal, TSgt Henderson challenged the legal and factual sufficiency of his convictions. The issue came down to the timing of the comments that were found to violate the order. The offenses were charged as having occurred between 1 October 2019 and 31 December 2019. The two trainees testified that the comments were made during the second phase of their training, but never gave definitive dates. The only discussion of timeline was that Phase I had ended sometime in October and that the comments were made between that date and Thanksgiving. However, the Government only admitted the version of AFI-36-2909 that was effective 14 November 2019 into evidence. The version that was in effect from 1 October 2019 to 13 November 2019 also included the same prohibitions, but that version was never introduced at trial.
The Air Force appellate court found that they could not determine from the record that the comments made by TSgt Henderson happened after the 14 November 2019 version was in effect, and therefore found the convictions to be factually insufficient. The Court set aside the guilty findings and the sentence and dismissed the charges with prejudice.
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