Last month, the Court of Appeals for the Armed Forces, the highest military appellate court, issued its opinion in United States v. Gonzalez. In August 2021, LTC Gonzalez was out with friends at a bar in San Antonio. LTC Gonzalez was celebrating his upcoming retirement. A group of Navy junior enlisted Sailors were also at the bar and LTC Gonzalez struck up a conversation with one of them. He told her that he was a Lieutenant Colonel and showed her his Common Access Card with his rank on it. She told him that she was an enlisted Sailor in training to be a hospital corpsman. When LTC Gonzalez said that she must be “at least a Lieutenant” she told him that no, she was an E-1, Seaman Recruit.
Eventually, LTC Gonzalez and his friends invited the Seaman Recruit and one of the other Sailors to come with them to another bar. On the way to the other bar, the group encountered a photographer who accompanied them to the second bar and took photographs of the group. In one of the photographs, LTC Gonzalez is pictured kissing the Seaman Recruit on the lips. The Army became aware of the events of this evening and LTC Gonzalez was charged with two specifications of conduct unbecoming an officer and a gentleman, a violation of Article 133 of the UCMJ. (This Article was updated to remove the word “gentleman” in 2023.)
Article 133 prohibits conduct unbecoming an officer by any commissioned officer, cadet or midshipman. Conduct that is unbecoming an officer is conduct that disgraces the officer personally or brings dishonor to the military profession in a way that affects the officer’s fitness to command subordinates. All of the circumstances of the conduct are taken into consideration when determining whether it is considered unbecoming of an officer.
At trial, LTC Gonzalez was found not guilty of Specification 1, which involved alleged conduct with the other Sailor. He was, however, convicted of Specification 2, which alleged that LTC Gonzalez, “a married man,” engaged in conduct unbecoming an officer and gentleman by kissing the Seaman Recruit on the lips while knowing that she was a junior enlisted Sailor and a woman who was not his wife. He was sentenced to a reprimand.
On appeal, LTC Gonzalez argued that he did not have fair notice that the conduct could be punished as conduct unbecoming an officer and a gentleman. Each person’s constitutional right to due process includes fair notice that an act is forbidden and subject to criminal sanction before they can be prosecuted for the act. A criminal statute must provide a person of ordinary intelligence fair notice of what is prohibited. That notice does not just have to come from the wording of the statute though. It can also come from other federal or state law, military case law, military customs, and military regulations.
LTC Gonzalez’s argument was that he was essentially convicted of a form of adultery and that no UCMJ articles, military regulations, or military customs would give him fair notice that a kiss could constitute adultery. Indeed, the Article 134 offense of adultery, now known as “extramarital sexual conduct” requires actual sexual intercourse as an element of the offense.
Contrary to this argument, the Army Court of Criminal Appeals found that LTC Gonzalez did have fair notice and upheld his conviction. LTC Gonzalez then appealed to the Court of Appeals for the Armed Forces.
The Court of Appeals for the Armed Forces determined that, despite the inclusion of the terms “a married man” and “a woman who was not his wife” in the specification, the specification really alleged fraternization and not adultery. This was borne out by several discussions at trial between the military judge and the trial counsel. The trial counsel told the military judge both before trial and before sentencing that the offenses charged were based upon LTC Gonzalez’s rank and the status of the Sailors as junior enlisted and not on his marital status.
Having determined that the criminal conduct was fraternization and not adultery, the Court then found that LTC Gonzalez had plenty of fair notice that fraternization was prohibited conduct. First, fraternization is also an offense under Article 134 of the UCMJ. Second, Army regulations describe prohibited acts and relationships and clarify that the prohibition against undue familiarity between officers and enlisted extends to personnel of other military services. Finally, the social separation between officers and enlisted personnel has been the custom in this country since its inception. With all of these sources, the Court concluded than any officer would be on notice that this type of behavior was punishable. The Court affirmed the Army Court’s decision.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.