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.