United States v. Dowlat

28 M.J. 958, 1989 CMR LEXIS 559, 1989 WL 73454
CourtU S Air Force Court of Military Review
DecidedJune 5, 1989
DocketACM 27459
StatusPublished
Cited by2 cases

This text of 28 M.J. 958 (United States v. Dowlat) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dowlat, 28 M.J. 958, 1989 CMR LEXIS 559, 1989 WL 73454 (usafctmilrev 1989).

Opinion

DECISION

KASTL, Senior Judge:

Technical Sergeant Dowlat was a 29 year old military training instructor assigned to Lackland Air Force Base, Texas. He was tried by a military judge sitting alone as a general court-martial for several offenses involving basic trainees, violations of Arti[959]*959cles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934. He was convicted of dereliction of duty by threatening to recycle two male airmen into further training, soliciting seven trainees to breach regulations and attend an off-base party, obstructing justice, and developing personal relationships with two female trainees in violation of a lawful general regulation. His approved sentence is a bad conduct discharge, confinement for 18 months, forfeiture of $200.00 per month for 18 months, and reduction to airman basic.

Relationship With Airman Basic W

In August 1988, Sergeant Dowlat began inviting Airman Basic (AB) W and AB G, both female trainees, into his office in the male dormitory after duty hours. W’s duties for Sergeant Dowlat were those of a “house mouse” — cleaning the office and performing various clerical work. AB G assisted AB W in these tasks. Sergeant Dowlat provided ^ the two trainees candy, soft drinks, cigarettes, and on two occasions, food from fast food establishments. According to testimony of W and G, trainees are only allowed sodas and candy in a specified area and they are not allowed to smoke or enjoy fast food items. When W flunked a military test, Sergeant Dowlat gave her a two-hour pass to go off base. He also assembled a group of troops to sing “Happy Birthday” to her and had a photograph taken of himself with his arms around the waists of G and W.

Meanwhile, Sergeant Dowlat had become romantically involved with AB G. Eventually, they engaged in sexual intercourse at the appellant’s off-base townhouse.

Just before graduation, Sergeant Dowlat hosted a party for three male and four female basic trainees — including W and G. He drove them to his off-base townhouse, where the group consumed alcohol, watched television, and paired off in separate rooms. Trainees are prohibited from going off base or travelling in private vehicles without proper authorization.

As a result of his conduct with AB W and G, the appellant was tried for violating a lawful general directive, Air Training Command Regulation 30-4; it prohibits staff members from attempting to develop a personal relationship with a student.1

The appellant pleaded guilty to violating this regulation by his conduct with AB G; however, he pleaded not guilty to any such violation with AB W. The military judge found him guilty of both specifications. In regard to AB W, however, the military judge excepted the operative words of the pertinent provision — “Paragraph 4b5(a)”— and substituted therefore the words “Paragraph 4b(5)” to particularize the standard violated by the appellant. The appellant challenges his conviction for his relationship with AB W, mounting a sweeping Constitutional attack on the regulation as failing for vagueness and overbreadth.

We elect not to reach the Constitutional issue broached by the defense since this matter can be resolved on the more basic ground that appellant’s conduct did not violate Air Training Command Regulation 30-4 as written.

Proper relationships between instructors and subordinate students are indispensable to military discipline. As the Court of Military Appeals articulated it in United States v. Adames, 21 M.J. 465, 467-468 (C.M.A. 1986):

Where the subordinates are trainees, the [armed forces have] an enhanced in[960]*960terest because trainees, who usually have limited military experience and are subject to very intensive supervision and control by their superiors, are vulnerable to the taking of unfair advantage by those superiors. In turn, such conduct by the superiors diminishes the respect with which they are viewed by the trainees — a respect essential for inculcating discipline. To avoid the consequences, almost every training command has directives which prohibit various types of social relations between trainees and the officers and noncommissioned officers who constitute the command’s permanent party or cadre.

Premised on this view of military good order, we have no hesitation in condemning the appellant’s conduct as to AB G; however, we find the picture distinctly different with regard to AB W.

We hold that the appellant did not violate the regulation by his conduct toward AB W. There is a basic rule of statutory construction applicable in this situation: When a particular form of conduct is prohibited, there is an inference that all omissions should be understood as exclusions. This is the ancient Latin maxim expressio unius est exclusio alterius. See 2A Sutherland Statutory Construction (Singer ed. 1984) Sec. 47.23 and United States v. May, 27 C.M.R. 570, 573 (A.B.R. 1958). As Professor Singer explains it, there is nothing legalistic or esoteric about the concept — it is simply a matter of common experience that when people say one thing they do not mean something else. Sutherland at See. 47.24.

Paragraph 4b5(a) regulates sexual activities between instructors and students; the single focus of subparagraphs (a), (b), and (c) is on dating and sexual contacts. Applying well-recognized rules of statutory construction, we hold that providing sweets, cigarettes, a two-hour pass, or the like are not rationally prohibited by the pertinent paragraph. Thus, given these three subparagraphs enumerating forms of forbidden sexual conduct, we will not permit a conviction to stand based on a completely different form of non-sexual mischief. See generally United States v. Adames, supra, and United States v. Mabazza, 3 M.J. 973 (A.F.C.M.R.1977), vacated on other grounds, 4 M.J. 79 (C.M.A.1977), aff'd on further review, 5 M.J. 660 (A.F.C.M.R.1978), pet. denied, 6 M.J. 6 (C.M.A.1978).2

The military judge found the appellant guilty — by substitutions and exceptions— of merely the stem of paragraph 4b(5). The judge thus attempted to transform a prohibition on sexual contacts into a vague, generalized ban on various “personal” relationships. We are unwilling to permit such a change of legal horses midstream. Paragraph 4b(5)(a) attacks sexual misconduct— and only that. It may be laudable for the authors of the regulation to ban various instructor-student associations. That is theirs to say. However, they must accomplish it in a more straightforward manner than the current wording of the regulation.

Obstruction of Justice

Sergeant Dowlat was also convicted of obstruction of justice in that he contacted AB G, a potential witness against him, asking that the seven airmen he had taken to an off base party meet to “get the story straight.” He now asserts that he cannot be found guilty of obstruction of justice under Article 134. He premises his argument on the opinion of this Court in United States v. Chasteen, 17 M.J. 580, 581 (A.F.C.M.R.1983) aff'd in part and rev’d in part, 24 M.J. 62 (C.M.A.1987).

In Chasteen, two specifications of obstruction of justice in violation of 18 United States Code Section 1510 were charged under Article 134.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Medina
71 M.J. 652 (U S Coast Guard Court of Criminal Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 958, 1989 CMR LEXIS 559, 1989 WL 73454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dowlat-usafctmilrev-1989.