Opinion
EVERETT, Senior Judge:
The Judge Advocate General certified this case to test whether the Air Force Court of Military Review erred in setting [471]*471aside parts of the findings entered by the military judge on Kroop’s pleas of guilty to three specifications alleging unbecoming conduct, in violation of Article 133 Uniform Code of Military Justice, 10 USC § 933. See 34 MJ 628, 633-36 (1992). In light of the allegations in the three specifications, we hold that the Court of Military Review reached a correct result.
A
Lieutenant Colonel Kroop, a married Air Force officer who commanded the base civil engineering squadron at Mountain Home Air Force Base, Idaho, became romantically involved with Staff Sergeant Rebecca Percy, who also was married but was not in Kroop’s squadron or under his supervision. As his relationship with Percy was coming to an end, Kroop bestowed his affections on Second Lieutenant Stephanie Clements, who was a design engineer detailed to duties in Kroop’s civil engineering squadron. Ultimately, those activities led to the preferral of a charge of conduct unbecoming an officer, which had these three specifications of misconduct alleging that Lieutenant Colonel Kroop
1: ... a married man, while in a position of command, did, ... wrongfully behave with undue familiarity, wrongfully engage in excessive social contacts, and wrongfully have sexual intercourse with [2Lt Clements], a married female, [and] a subordinate under [his] command____
2: ... [Kroop] while in a position of command, did, ... wrongfully make sexual advances and verbal comments of a sexual and intimate nature to [2Lt Clements], a married woman not his wife, a subordinate under [his] command, which conduct created an intimidating, hostile, and offensive environment____
3: ... [Kroop] a married man, did, ... wrongfully behave with undue familiarity, engage in excessive social contacts, and wrongfully have sexual intercourse with [SSgt Percy], an enlisted woman, ... not his wife____
Kroop pleaded guilty before a military judge sitting alone and entered into a detailed stipulation of fact. After questioning Kroop about the providence of his pleas and the stipulation of fact, the military judge found him guilty as charged and sentenced him to dismissal and a $5,000 fine. This sentence as adjudged was approved by the convening authority on March 11, 1990; but because that convening authority, a lieutenant general, was himself under investigation for similar acts of “predatory sexual misconduct,” CMR unpub. op. at 4, 1991 WL 85323 (April 18, 1991), the Court of Military Review returned the record for a new staff judge advocate’s recommendation and action by a different convening authority. The new convening authority approved the fine but not the dismissal on September 12, 1991.
Upon further review the Court of Military Review found improvident Kroop’s plea of guilty to the language of the second specification concerning the creation of “an intimidating, hostile, and offensive environment,” because during the providence inquiry, Kroop had never admitted that these allegations were accurate. Accordingly the conviction was set aside, and “in the interests of judicial economy” this specification was dismissed. 34 MJ at 635. The Judge Advocate General has not questioned this ruling.
The Court of Military Review also disapproved so much of the findings of guilty of specifications 1 and 3 as contained the “excessive social contacts” and “undue familiarity” language. 34 MJ at 634-35, 636. However, the court concluded that—despite the absence of a specific allegation that Clements was not Kroop’s wife—the remaining language of specification 1 (34 MJ at 634) (and the language of specification 3 containing that allegation—34 MJ at 636) was each sufficient to allege adultery as a violation of Article 133. The sentence as previously reduced to a $5,000 fine by the substitute convening authority was considered by the court below to be appropriate for the two adultery convictions. 34 MJ at 638. A petition for reconsideration en banc was denied by the Court of Military [472]*472Review on March 6, 1992 with one judge dissenting and three not participating.
The Judge Advocate General of the Air Force certified the following issues for review:
I
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT RULED THAT THE “UNDUE FAMILIARITY” AND “EXCESSIVE SOCIAL CONTACTS” LANGUAGE OF SPECIFICATIONS 1 AND 3 OF THE CHARGE FAILED TO STATE AN OFFENSE.
II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT APPLIED THE FRATERNIZATION ANALYSIS OF U.S. V. JOHANNS TO SPECIFICATIONS ALLEGING CONDUCT UNBECOMING AN OFFICER BY ENGAGING IN PUBLIC ACTS OF “UNDUE FAMILIARITY” AND “EXCESSIVE SOCIAL CONTACTS” WITH A SUBORDINATE OFFICER AND AN ENLISTED MEMBER.
B
By the wording of the second certified question the Judge Advocate General has attempted to divert the Court from consideration of the sufficiency of the pleadings to consideration of sufficiency of the facts stated in the stipulation which accompanied the guilty pleas. For example, the second issue refers to “specifications alleging conduct unbecoming an officer by engaging in public acts of ‘undue familiarity’ and ‘excessive social contacts.’ ” (Emphasis added.) Our examination of specifications 1 and 3—and even of specification 2 which the court below dismissed—reveals no allegation that any of Kroop’s activity occurred in public.
We realize that, especially when there is a guilty plea, the fair intendment of a specification may be clear enough to remedy a technical omission. See, e.g., United States v. Sell, 3 USCMA 202, 11 CMR 202 (1953). Indeed, in this very case the Court of Military Review properly concluded that specification I was sufficient to allege adultery even though this specification only alleged that Kroop was married and failed specifically to assert that Lt. Clements was not his wife. 34 MJ at 634. However, we do not believe that the “public” nature of the sexual relationships with these two women can be inferred with similar ease from the allegations of specifications 1 and 3; or that the presence of the word “wrongfully” supplies the omissions. Likewise, even though the stipulation of fact which accompanied the guilty pleas makes clear that some of the “undue familiarity” and “excessive social contacts” was public, an accused’s entering into a stipulation of facts or his making of testimonial admissions during a guilty-plea inquiry does not suffice to add new allegations to a specification.
With respect to the first certified question, it must be recalled that the Court of Military Review held that specifications 1 and 3 each stated an offense—namely, adultery. Thus, the language to which the certificate directs our attention was in some respects surplusage. If, however, there had been no allegations as to the marital status of Kroop, Clements, or Percy, what effect should be given allegations of “undue familiarity” and “excessive social contacts” in specifications 1 and 3? In the absence of further allegations as to the details of the conduct involved or the service custom violated, we are concerned about the imprecision of this language.
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Opinion
EVERETT, Senior Judge:
The Judge Advocate General certified this case to test whether the Air Force Court of Military Review erred in setting [471]*471aside parts of the findings entered by the military judge on Kroop’s pleas of guilty to three specifications alleging unbecoming conduct, in violation of Article 133 Uniform Code of Military Justice, 10 USC § 933. See 34 MJ 628, 633-36 (1992). In light of the allegations in the three specifications, we hold that the Court of Military Review reached a correct result.
A
Lieutenant Colonel Kroop, a married Air Force officer who commanded the base civil engineering squadron at Mountain Home Air Force Base, Idaho, became romantically involved with Staff Sergeant Rebecca Percy, who also was married but was not in Kroop’s squadron or under his supervision. As his relationship with Percy was coming to an end, Kroop bestowed his affections on Second Lieutenant Stephanie Clements, who was a design engineer detailed to duties in Kroop’s civil engineering squadron. Ultimately, those activities led to the preferral of a charge of conduct unbecoming an officer, which had these three specifications of misconduct alleging that Lieutenant Colonel Kroop
1: ... a married man, while in a position of command, did, ... wrongfully behave with undue familiarity, wrongfully engage in excessive social contacts, and wrongfully have sexual intercourse with [2Lt Clements], a married female, [and] a subordinate under [his] command____
2: ... [Kroop] while in a position of command, did, ... wrongfully make sexual advances and verbal comments of a sexual and intimate nature to [2Lt Clements], a married woman not his wife, a subordinate under [his] command, which conduct created an intimidating, hostile, and offensive environment____
3: ... [Kroop] a married man, did, ... wrongfully behave with undue familiarity, engage in excessive social contacts, and wrongfully have sexual intercourse with [SSgt Percy], an enlisted woman, ... not his wife____
Kroop pleaded guilty before a military judge sitting alone and entered into a detailed stipulation of fact. After questioning Kroop about the providence of his pleas and the stipulation of fact, the military judge found him guilty as charged and sentenced him to dismissal and a $5,000 fine. This sentence as adjudged was approved by the convening authority on March 11, 1990; but because that convening authority, a lieutenant general, was himself under investigation for similar acts of “predatory sexual misconduct,” CMR unpub. op. at 4, 1991 WL 85323 (April 18, 1991), the Court of Military Review returned the record for a new staff judge advocate’s recommendation and action by a different convening authority. The new convening authority approved the fine but not the dismissal on September 12, 1991.
Upon further review the Court of Military Review found improvident Kroop’s plea of guilty to the language of the second specification concerning the creation of “an intimidating, hostile, and offensive environment,” because during the providence inquiry, Kroop had never admitted that these allegations were accurate. Accordingly the conviction was set aside, and “in the interests of judicial economy” this specification was dismissed. 34 MJ at 635. The Judge Advocate General has not questioned this ruling.
The Court of Military Review also disapproved so much of the findings of guilty of specifications 1 and 3 as contained the “excessive social contacts” and “undue familiarity” language. 34 MJ at 634-35, 636. However, the court concluded that—despite the absence of a specific allegation that Clements was not Kroop’s wife—the remaining language of specification 1 (34 MJ at 634) (and the language of specification 3 containing that allegation—34 MJ at 636) was each sufficient to allege adultery as a violation of Article 133. The sentence as previously reduced to a $5,000 fine by the substitute convening authority was considered by the court below to be appropriate for the two adultery convictions. 34 MJ at 638. A petition for reconsideration en banc was denied by the Court of Military [472]*472Review on March 6, 1992 with one judge dissenting and three not participating.
The Judge Advocate General of the Air Force certified the following issues for review:
I
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT RULED THAT THE “UNDUE FAMILIARITY” AND “EXCESSIVE SOCIAL CONTACTS” LANGUAGE OF SPECIFICATIONS 1 AND 3 OF THE CHARGE FAILED TO STATE AN OFFENSE.
II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT APPLIED THE FRATERNIZATION ANALYSIS OF U.S. V. JOHANNS TO SPECIFICATIONS ALLEGING CONDUCT UNBECOMING AN OFFICER BY ENGAGING IN PUBLIC ACTS OF “UNDUE FAMILIARITY” AND “EXCESSIVE SOCIAL CONTACTS” WITH A SUBORDINATE OFFICER AND AN ENLISTED MEMBER.
B
By the wording of the second certified question the Judge Advocate General has attempted to divert the Court from consideration of the sufficiency of the pleadings to consideration of sufficiency of the facts stated in the stipulation which accompanied the guilty pleas. For example, the second issue refers to “specifications alleging conduct unbecoming an officer by engaging in public acts of ‘undue familiarity’ and ‘excessive social contacts.’ ” (Emphasis added.) Our examination of specifications 1 and 3—and even of specification 2 which the court below dismissed—reveals no allegation that any of Kroop’s activity occurred in public.
We realize that, especially when there is a guilty plea, the fair intendment of a specification may be clear enough to remedy a technical omission. See, e.g., United States v. Sell, 3 USCMA 202, 11 CMR 202 (1953). Indeed, in this very case the Court of Military Review properly concluded that specification I was sufficient to allege adultery even though this specification only alleged that Kroop was married and failed specifically to assert that Lt. Clements was not his wife. 34 MJ at 634. However, we do not believe that the “public” nature of the sexual relationships with these two women can be inferred with similar ease from the allegations of specifications 1 and 3; or that the presence of the word “wrongfully” supplies the omissions. Likewise, even though the stipulation of fact which accompanied the guilty pleas makes clear that some of the “undue familiarity” and “excessive social contacts” was public, an accused’s entering into a stipulation of facts or his making of testimonial admissions during a guilty-plea inquiry does not suffice to add new allegations to a specification.
With respect to the first certified question, it must be recalled that the Court of Military Review held that specifications 1 and 3 each stated an offense—namely, adultery. Thus, the language to which the certificate directs our attention was in some respects surplusage. If, however, there had been no allegations as to the marital status of Kroop, Clements, or Percy, what effect should be given allegations of “undue familiarity” and “excessive social contacts” in specifications 1 and 3? In the absence of further allegations as to the details of the conduct involved or the service custom violated, we are concerned about the imprecision of this language. It could be intended to allege mistreatment of subordinates of the type apparently contemplated by specification 2 but not established in the providence inquiry1; or it [473]*473could be directed towards some type of fraternization.
Although the certified issues do not make this clear, the sufficiency of specifications 1 and 3 to allege offenses other than adultery hinges on whether it is conduct unbecoming an officer for an officer to have sexual intercourse (a) with an enlisted member not alleged to be his subordinate or under his command (Staff Sergeant Percy) or (b) with a subordinate officer (Lt. Clements).
The Air Force Court of Military Review held in United States v. Johanns, 17 MJ 862 (1983), aff'd 20 MJ 155 (CMA), cert. denied, 474 U.S. 850, 106 S.Ct. 147 88 L.Ed.2d 122 (1985), that no custom of that service forbade sexual intercourse between an officer and an enlisted person not under the officer’s command or supervision. Moreover, in 1989 when the conduct which is the subject of this appeal occurred, no Air Force Regulation prohibited such conduct or even dealt specifically therewith. Accordingly, we conclude that, apart from adultery, specification 3 fails to allege a violation of Article 133.
With respect to private sexual intercourse between an officer and his or her superior, unaccompanied by any element of harassment or coercion on the part of the superior and any allegation of violation of an applicable custom or regulation, we are also unconvinced that Articles 133 or 134 is violated. Admittedly, such facts may very well justify a denial of promotion or even an administrative separation; but here we are discussing a criminal conviction and sentence. For example, if the superior officer were seduced into sexual intercourse by the subordinate officer, would that, of itself, constitute a crime in the Air Force? At least in the absence of an Air Force custom or regulation to the contrary— which has neither been alleged nor proved (and which we doubt exists)—we believe the answer must be in the negative.2 Thus, if the crime of adultery were disregarded, we believe that specifications 1 and 3 in their present form and without any additional allegations would inadequately allege a crime.
C
The decision of the United States Air Force Court of Military Review is affirmed.
Judge WISS concurs.
Judge GIERKE dissents and will file an opinion at a later date. [See 38 MJ at 474.]
Judge CRAWFORD did not participate.