The Coast Guard Court’s newest published opinion, United States v. Daly, __ M.J. __, No. 001-62-10 (C.G. Ct. Crim. App. June 14, 2010), arises from an Article 62 appeal. 

Boatswain’s Mate First Class Daly was charged under Article 134 with wrongfully engaging in romantic relationships with subordinate E-2s and E-3s to the prejudice of good order and discipline.  The Coast Guard Court’s opinion focuses on the Coast Guard Personnel Manual, and considers whether it precludes treating Petty Officer First Class Daly’s conduct as criminal.  Yes, holds the Coast Guard Court, the Coast Guard Personnel Manual “negates criminality” in this context.  Id., slip op. at 8.   Chief Judge McClelland wrote for a unanimous panel.  (The Coast Guard Court helpfully posted relevant parts of the Personnel Manual here.)

The Coast Guard Court explains that paragraph 8.H of the Personnel Manual, “entitled ‘Interpersonal Relationships within the Coast Guard,’ offers wide-ranging guidance on various kinds of relationships among personnel and their various effects, good and bad, on work environment, professional development, good order and discipline, and other matters. Relevant to this case, it creates three categories: acceptable relationships, unacceptable relationships and conduct, and prohibited relationships and conduct.”  Id., slip op. at 3.

The court continues:

PERSMAN paragraph 8.H.2.g sets forth three types of relationships or conduct and explicitly prohibits them, and goes on, “This provision is a punitive general regulation, applicable to all personnel subject to the Uniform Code of Military Justice without further implementation. A violation of this provision is punishable in accordance with the UCMJ.”

PERSMAN paragraph 8.H.2.f describes several circumstances of “romantic” relationshipsand calls them unacceptable, including where the parties “have a supervisor and subordinate relationship (including periodic supervision of duty section or watchstanding personnel)” and where they “are assigned to the same small shore unit (less than 60 members)”. Paragraph 8.H.2.d.3.c says that resolution of an unacceptable relationship is “normally administrative.” PERSMAN section 8.H.6, “Resolving Unacceptable Relationships,” discusses many administrative approaches to addressing unacceptable relationships, including “a direct order to terminate a relationship,” paragraph 8.H.6.c, and “direct[ion] to end a relationship,” paragraph 8.H.6.d. It concludes with paragraph 8.H.6.g, “Disciplinary Action”: “Non-judicial punishment or courts-martial may address fraternization or other unlawful or prohibited relationships or conduct.”

Id. (footnote omitted).  The court notes that “[a]lthough ‘romantic’ is not defined, it surely includes sexual activity.”  Id., slip op. at 3 n.5.

At trial, the defense ackowledged that Petty Officer First Class Daly’s “conduct was ‘unacceptable’ in that he and each of his sexual partners were assigned to the same small shore unit having less than sixty members.”  Id., slip op. at 3-4. But the defense argued, and the military judge agreed, “that PERSMAN 8.H. made it clear that this conduct was not prohibited, only unacceptable, and that he could not be prosecuted for the conduct, but could only suffer administrative consequences for it.” Id., slip op. at 4.

Upon the prosecution’s appeal, the Coast Guard Court affirms the military judge’s ruling dismissing the charge and its specifications.

The Coast Guard Court emphasizes the requirement that an accused be on fair notice that his conduct is unlawful and finds that the Personnel Manual precluded Petty Officer First Class Daly from being on notice that his conduct was criminal.  The court explains:

In this case, resort to custom is futile because custom has been supplanted by PERSMAN 8.H. 8.H. specifies “prohibited” relationships and conduct, which incur criminal liability. Other specified relationships and conduct, called “unacceptable,” are likely to lead to administrative sanctions. By negative inference, unacceptable relationships and conduct apparently do not incur criminal liability in themselves.  . . .  [I]n effect, 8.H. appears to give servicemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134.

Id., slip op. at 6 (footnote omitted).

The court finds that its interpretation is corroborated by paragraph 8.H.5.b of the Personnel Manual, which provides:

Personnel finding themselves involved in or contemplating unacceptable relationships should report the situation and seek early resolution from their supervisor, commanding officer, officer in charge, command enlisted advisor, or Coast Guard chaplain. Any potential conflict with Coast Guard policy should be addressed promptly. Commands are expected to assist members in understanding Coast Guard policy requirements and resolving conflicts. Bringing an unacceptable relationship to early Command attention will increase the opportunity for early, positive resolution.

The court explains:

The phrase “Personnel finding themselves involved in or contemplating unacceptable relationships” acknowledges the common human phenomenon of “falling in love,” which can happen regardless of a person’s professional intentions and often cannot be controlled at inception. The later material in section 8.H.6 offers various alternative resolutions of unacceptable relationships. The overall policy appears clearly to avoid criminalization in favor of practical solutions as far as possible. This is understandable, as criminalization, or even uncertainty, would create an enormous incentive to hide such relationships, allowing their many detriments to good order and discipline to blossom, as well as possibly incurring loss of productivity of the parties, who would have to divert some attention to keeping their secret. It would also risk the downfall of otherwise valuable servicemembers whose value to the service might have continued if a solution had been found. It seems eminently reasonable that 8.H. should create a noncriminal “safe harbor,” readily understandable to servicemembers, for persons “finding themselves involved in or contemplating unacceptable relationships.”

Id., slip op. at 6-7. 

The court concludes:  “we interpret PERSMAN 8.H. as giving servicemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134. If we did otherwise, we would destroy the ‘safe harbor.'”  Id., slip op. at 7.

The court adds that an inappropriate relationship under the Personnel Manual can become the subject of an Article 92 prosecution if an order is given to cease the relationship and that order is disobeyed.

9 Responses to “New published CGCCA fraternization opinion”

  1. Ru Paul says:

    These regs are such a mess! And they will only get messier. Wait until “don’t ask don’t tell” is repealed. Just reading the new fraternization/unprofessional relationship regs should provide hours of entertainment!

  2. Mike "No Man" Navarre says:

    Appears the CG, Army and AF have left the dept of the Navy on an island in terms of fraternization. If a “supervisor and subordinate relationship” is only unacceptable, what is left to be separately punishable as fraternization? My AF friends frequently give me grief about the non-interaction between enlisted and officers. I can remember a party my friends command chief held at her house that was attended by officers and enlisted alike. As a new Navy officer I couldn’t have felt more like a fish oiut of water.

  3. Mike "No Man" Navarre says:

    I just read the prohibited class and stand by my prior comment. Beyond UCMJ frat, and to be perfectly honest the prohibiyed class may be narrower than the UCMJ, it only prohibits student-instructor dating and sex onboard-which probably doesn’t even belong in this instruction. The Dept of the Navy is an island on this issue.

  4. Mike "No Man" Navarre says:

    And just a tip to CGCCA, if you ask E-2s whether all sexual activity is “romantic” I am guessing you will be shocked by the answers. Having 20-something relatives, if I were on CGCCA and a frat appeal said ithe accused subjectively believed his/her sexual activity was not romantic, I would not deem that a frivolous argument.

  5. anonymous says:

    The charged crime of “wrongfully engaging in a romantic relationship” does seem to be covered by PERSMAN 8.H. 2.f. So probably the court is right in determining the regulation “acknowledges the common human phenomenon of falling in love”, by making certain romantic relationships “non-criminal.” However, what about noncriminalizing certain behaviors that come with the romantic relationship? Couldn’t prosecutors have charged the underlying behavior? Surely it is still against the customs of the Coast Guard to have sex with your subordinates? Then again maybe not… Or perhaps the prosecution had a problem proving a specific sex act?

  6. DC Steve says:

    Anyone else surprised that the court did not discuss the difference between “general” regulations, and other regulations? General regulations are punitive, and say so explicitly (e.g. this paragraph is punitive, and violation of it may be punishable under Art 92…etc).

    Most regulations, however, are not punitive. However, that does not mean they cannot result in Art 92 violations. Art 92(2) prohibits the violation of other orders, and states that this “includes the violation
    of written regulations which are not general regulations.”

    The difference between the two is whether the government must prove the accused’s knowledge of the regulation’s terms. For a general regulation, the government does not need to proove the accused was aware of the regulations. For a non-general regulation, the government must proove that the accused had knowledge of the regulation.

    I would have thought that this discussion would have been central to the CG court’s analysis.

    Also, anyone else think that the court gave a very generous definition of “unacceptable.” To me, if a regulation says a certain behavior is unacceptable, this means it is not acceptable, and is something I cannot do.

    But, apparently in the CG, unacceptable behavior is only, actually, unacceptable, if my superior orders me to cease the behavior. Without such an order, my unacceptable behavior, is well, accepted.

  7. Bridget says:

    The frat battles have only fairly recently become primarily about dating and sex. The Army, for example, did not issue a fraternization regulation until 1978. Prior to that time, the service had relied upon custom to prosecute frat. Of course, the watermark event for the Army in 1978 was the disbanding of the Women’s Army Corps and formal integration of women into the “Regular Army”. Frat became a fear of dating issue.

    Of course, the inconsistencies in regulations continue(d) to obscure the landscape. Prior to the All Volunteer Force and the introduction of larger numbers of women into the forces, frat was not simply a “dating and sex” focused matter. It was designed to address the centuries old concerns about unduly familiar relationships and favoritism.

    When I was young and enlisted (and yes, once upon a time I was both enlisted and young), the Army enlisted women in San Antonio cured the problem by dating Air Force personnel. Then you could be wined and dined at the AF “O” club where the food was much better anyway. Considering that the purpose of the regulations was to avoid prejudice to good order and discipline, it may be that it is time to refocus on those circumstances where PGOD is an issue. Dating someone not in your service, let alone your chain of command seems rather unlikely to result in PGOD. However, the current regs bar those relationships. One must wonder what purpose that serves.

    BTW, below is the intro to the Army frat policy. Note that it applies to both same and opposite sex relationships. So, the potential repeal (but still not likely) of DADT has no effect on frat issues.

    From AR 600-20 Army Command Policy

    4–14. Relationships between Soldiers of different rank
    a. The term “officer,” as used in this paragraph, includes both commissioned and warrant officers unless otherwise stated. The provisions of this paragraph apply to both relationships between Army personnel (to include dual-status military technicians in the Army Reserve and the Army National Guard) and between Army personnel and personnel of other military services. This policy is effective immediately, except where noted below, and applies to different-gender relationships and same-gender relationships

  8. Anonymous says:

    Ok, I admit to being without my MCM and thus not entirely sure of the answer to this, but was the Government’s appeal even timely? I thought the government got 72 hours to decide to appeal a MJ’s ruling. Here, the case says the judge dismissed on 5 March, the government then sought reconsideration 12 days later on 17 March, the MJ denied on 26 March and the government submitted it’s notice of appeal on 29 March. Am I missing something? Shouldn’t the government have acted within 3 days of the MJ’s 5 March order, either asking for reconsideration or filing notice of appeal?

  9. Seattle Stephen says:

    You are absolutely correct. The case apparently will now be tossed on jurisdictional grounds. Frankly, I was wishing CAAF addressed its merits, as I handled it at the trial court level.