Appellant asserts the evidence is legally insufficient to support his convictions for disrespect in two ways: (1) Article 91, UCMJ, does not cover disrespect by remote means of communication, such as a text message; and (2) because the Government specifically alleged he was disrespectful in deportment, as opposed to in language, it was required, but failed, to prove that the acts were done “in the presence” of the victims. We disagree and hold that Article 91 is broad enough to encompass disrespectful text messages sent directly to the victim, whether they are disrespectful in language or in deportment.

Similarly, going all the way back to 1917—when the MCM was issued under the authority of the Secretary of War, not the President—it explained:

     “The phrase ‘while in the execution of his office’ limits the application of this part of the article to language and behavior within sight or hearing of the noncommissioned officer toward whom it is used; the word ‘toward’ not being used in the same sense as in [Article of War 63, disrespect toward a commissioned officer].

​MCM (1917 ed.), para. 415.

​Prior to trial, Appellant challenged the sufficiency of the specification on the basis that it was impossible that Appellant created a hostile work environment at PO3 C.L.’s “A” school because he had no connection to it. During argument on the motion to dismiss the specification, the military judge asked trial defense counsel whether there would be any issue if he simply struck that language. Trial defense counsel responded that would leave an insufficient specification because the language is necessary to allege a violation of the sexual harassment order. The Government did not dispute that an effect on the working environment needed to be alleged and proved. Rather, it argued that the entire Coast Guard was the working environment and that it was therefore possible for Appellant to affect it.

Following the close of evidence, the military judge reversed course. He found Appellant guilty of the specification except the words, “while she was attending ‘A’ school which created an offensive work environment.” He issued special findings where he now stated that “ACN 085/18 defines sexual harassment as ‘other verbal or physical conduct of a sexual nature . . .’ and ‘encompasses unwelcome display or communication of sexually offensive materials.’” App. Ex. XXVIII at 9 (ellipsis in original). He found that Appellant “was on notice that, as part of the specification, he had sexually harassed the named victim by communicating sexually offensive materials” and that while the Government had proved beyond a reasonable doubt that Appellant sent an unwelcome video, it had not proven that it created an offensive working environment. Id. In short, upon reconsideration, the military judge interpreted ACN 085/18 as not requiring the Government to prove that Appellant’s conduct created an offensive working environment.

​We conclude that an impact on the workplace, as alleged in the specification, was required to prove a violation of ACN 085/18. By finding Appellant not guilty of that portion of the specification alleging the required workplace impact, the military judge effectively acquitted Appellant of the specification. 

Cheers, Phil Cave.

We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process.

[W]e apply a presumption of unreasonable delay triggering a full due-process analysis when: (1) the record of trial is not docketed with this Court within a total of 150 days of the completion of trial; or (2) we do not complete appellate review and render a decision within eighteen months of docketing. Tucker, slip op. at 26.