United States v. Alis

47 M.J. 817, 1998 CCA LEXIS 88, 1998 WL 47105
CourtUnited States Air Force Court of Criminal Appeals
DecidedJanuary 30, 1998
DocketACM 32179
StatusPublished
Cited by15 cases

This text of 47 M.J. 817 (United States v. Alis) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alis, 47 M.J. 817, 1998 CCA LEXIS 88, 1998 WL 47105 (afcca 1998).

Opinion

OPINION OF THE COURT

GAMBOA, Judge:

The appellant was convicted by general court-martial, pursuant to his pleas, of fraternization, sodomy, and conduct unbecoming an officer, in violation of Articles 134, 125, and 133, Uniform Code of Military Justice, 10 U.S.C. §§ 934, 925, and 933 (1988), respectively. He was sentenced by members to a dismissal, six months confinement, and forfeiture of all pay and allowances. However, the confinement portion of his sentence was reduced, pursuant to a pretrial agreement, to 30 days. The appellant has assigned seven errors for our consideration. We find no error and affirm.

I. BACKGROUND

The appellant served as the Staff Judge Advocate (S JA) at Mountain Home Air Force Base (Mt. Home AFB), Idaho, from August 1992 until relieved of his duties in January 1995. Staff Sergeant DM was assigned to the legal office as the administrative discharge clerk. Although the appellant was not Sergeant DM’s immediate supervisor, he was in her supervisory chain-of-command and indorsed her enlisted performance reports (EPRs). Sergeant DM sometimes received taskings directly from the appellant and had daily contact with him in the office.

The appellant and Sergeant DM jumped to a new level of familiarity in April 1994 when the appellant asked and Sergeant DM agreed to type some Air War College papers for him. This arrangement often brought the two together during their off-duty hours. The appellant invited Sergeant DM to accompany him to look at a puppy he was interested in buying, and the following weekend he invited Sergeant DM to accompany him to pick up the puppy he had chosen. After-wards, they stopped for lunch and the appellant bought some items for the puppy. When they returned to the appellant’s home, Sergeant DM played with the puppy while the appellant set up its cage. The appellant began to rub Sergeant DM’s foot because she [821]*821had complained it was hurting. The appellant asked Sergeant DM to stay and play with the puppy, which she did. Later, Sergeant DM was sitting on the floor with the puppy asleep on her lap. The appellant, who was also sitting on the floor, slid across, laid his head on Sergeant DM’s lap, and asked, “If I were a puppy, would you pet me?” The appellant kissed Sergeant DM and asked her what she thought about the kiss. She replied that she enjoyed the kiss, but was shocked and surprised that someone like him was interested in her. After talking for several hours, the appellant performed oral sex on Sergeant DM, and they had sexual intercourse. This was the first of several intimate encounters between the appellant and Sergeant DM. The locations for their trysts varied. They had sexual intercourse at the appellant’s house, in Sergeant DM’s on-base dormitory room, in the appellant’s office, and the office library. They also went shopping together at various Idaho locations and took a weekend trip to Sun Valley Idaho Resort as the relationship intensified.

Their flirtatious interaction was noticed by others in the office. Sergeant DM would openly play with the appellant’s uniform, remove his battle-dress uniform (BDU) patch and then put it back on again, or touch the back of his neck after haircuts. The two also engaged in an ongoing water pistol fight. Members of the office started talking amongst themselves, and one enlisted member went as far as to confront the appellant with the office gossip and ask if it were true. The appellant denied any personal involvement with Sergeant DM.

Early in their affair, Sergeant DM asked the appellant if their relationship would have any effect on their office. The appellant told Sergeant DM that as long as she didn’t allow people to believe that he was giving her favors or treating her better than others in the office, there was nothing wrong with their relationship. In reality, the relationship, which was not well-concealed, had a deleterious effect on the office. Rumors also began circulating as the relationship progressed, and commanders at Mt. Home and even from other bases began to ask questions about the relationship. According to one judge advocate who worked in the office, the tension was “palpable” — a situation that did not “inspire confidence” in the Mt. Home legal office.

By June 1994, the relationship between the appellant and Sergeant DM began to deteriorate when Sergeant DM discovered that the appellant was living with a female officer, Captain DW. The appellant told Sergeant DM that he was living with the captain for financial convenience and that Sergeant DM was placing more emphasis on it than she should. However, Sergeant DM also found intimate letters from another woman in the appellant’s desk. Although they subsequently had sexual intercourse on two other occasions, Sergeant DM maintained that following these discoveries, in her mind, she did not resume a dating relationship with him.

Sergeant DM testified that she found it increasingly difficult to be around the appellant. She claimed they would often argue in his office over their breakup and that he made things “bad” for her at the office. Sometime in early autumn of 1994, Sergeant DM was having a discussion (during which the appellant was present) with an assistant SJA in the office regarding her lack of upper body strength. Sergeant DM said she was unable to do a single push-up. The appellant told her “sure you can,” and directed Sergeant DM to do 10 push-ups. Although the conversation began in a joking manner, he persisted when she told him that she was embarrassed and did not want to do the push-ups. Finally, Sergeant DM gave in and asked appellant if she could do them in his office so no one else would see. He agreed. When the two were alone, she again tried to talk him out of making her do the exercise. He insisted and told her she could not leave until she did the push-ups. Eventually, she complied.

Sergeant DM finally reported appellant to authorities a few months later because “he was hurting a lot of people in the office, other people on base [and] there was so much stress, everybody was unhappy.” Around that time, Captain DW became pregnant by the appellant and the two were married.

[822]*822II. CHALLENGE FOR CAUSE

The appellant argues that the military judge abused his discretion in denying a challenge for cause against a- court member, Lieutenant Colonel B, Chief of Environmental Activities at Beale AFB. The appellant contends that Colonel B’s prior status as a policeman “coupled with his actions as a commander in sex related eases, clearly raise ‘substantial doubt’ as to the ‘legality, fairness, and impartiality’ of the proceeding.”

During voir dire, Colonel B revealed that he had been an enlisted security policeman from 1965 until 1969 and a civilian police officer from 1970 until 1973. Colonel B related that, as a policeman, he worked in investigations for a year and a half, would “sometimes” encounter false accusations, and had limited experience with sex-crime cases. He reentered the Air Force and spent 16 years as a B-52 pilot. He served as a squadron commander for a year and a half and Deputy Support Group Commander for 3 years. “[Fjor six months last year” he served as the Air Force’s component commander at Guantanamo Naval Base.

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Cite This Page — Counsel Stack

Bluebook (online)
47 M.J. 817, 1998 CCA LEXIS 88, 1998 WL 47105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alis-afcca-1998.