                          UNITED STATES, Appellee


                                        v.


                         Warren L. DINGES, Captain
                        U. S. Air Force, Appellant


                                  No. 97-0597


                            Crim. App. No. 32122


       United States Court of Appeals for the Armed Forces

                        Argued December 6, 2000

                        Decided August 22, 2001

     CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. BAKER, J., filed a concurring
opinion. EFFRON, J., filed a dissenting opinion, in which
SULLIVAN, J., joined.

                                    Counsel

For Appellant: Charles W. Gittins (argued); Colonel James R.
Wise, Lieutenant Colonel Timothy W. Murphy, and Captain Karen L.
Hecker (on brief).

For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony
P. Dattilo and Major Lance B. Sigmon (on brief).


Military Judges:      Michael B. McShane and Gregory E. Pavlik




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Dinges, No. 97-0597/AF



        Chief Judge CRAWFORD delivered the opinion of the Court.

        After an oral argument on May 12, 1998, we ordered a DuBay1

hearing to determine whether the special court-martial convening

authority, who ordered the pretrial investigation and recommended

referral to a general court-martial, was disqualified because of

an “other-than-official interest in appellant’s prosecution.”

49 MJ 232, 235 (1998).         After the record of the DuBay hearing was

returned to this Court, we granted review of the following

issues:


              I. WHETHER THE SPECIAL COURT-MARTIAL CONVENING
              AUTHORITY WAS SO CLOSELY CONNECTED TO THE OFFENSE
              THAT A REASONABLE PERSON WOULD CONCLUDE THAT HE
              HAD A PERSONAL INTEREST IN THE MATTER WHERE THE
              CONVENING AUTHORITY WAS A DIRECTOR (AND THUS A
              FIDUCIARY) AND A DISTRICT CHAIRMAN IN THE VICTIMIZED
              ORGANIZATION, WHERE HE WAS PERSONALLY APPROACHED
              IN HIS CAPACITY AS DIRECTOR BY ANOTHER LEADER IN
              THE ORGANIZATION FOR ASSISTANCE IN HAVING APPELLANT
              INVESTIGATED FOR CONSENSUAL SEXUAL ACTIVITY, WHERE
              HE THEN INITIATED THE INVESTIGATION AND WHERE THE
              CONVENING AUTHORITY SUBSEQUENTLY OBTAINED COMMAND
              AND SPECIAL COURT-MARTIAL AUTHORITY OVER APPELLANT.

              II. WHETHER THE FINDINGS AND SENTENCE OF APPELLANT’S
              COURT-MARTIAL MUST BE SET ASIDE WHERE APPELLANT’S
              PLEA OF GUILTY WAS PROCURED BY FALSE AND FRAUDULENT
              STATEMENTS MADE BY AIR FORCE OFFICIALS TO THE
              DEPARTMENT OF JUSTICE IN ORDER TO OBTAIN A GRANT OF
              IMMUNITY FOR A VITAL GOVERNMENT WITNESS, WHERE THE
              GOVERNMENT FAILED TO PRODUCE THE DOCUMENTS CONTAINING
              THESE FALSE STATEMENTS TO APPELLANT DURING DISCOVERY
              AT THE TRIAL AND APPELLATE LEVEL AND WHERE THE STAFF
              JUDGE ADVOCATE WAS AWARE OF THE FALSE STATEMENTS
              DURING THE POST-TRIAL PROCESSING OF APPELLANT’S
              COURT-MARTIAL BUT FAILED TO ADDRESS THIS ERROR IN
              THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S
              RECOMMENDATION.
1
    United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
                                        2
United States v. Dinges, No. 97-0597/AF



     We hold contrary to appellant’s contentions for the reasons

set forth below.

                          FACTS - ISSUE I

     Colonel (Col) M, the special court-martial convening

authority,   testified at the DuBay hearing that he was stationed

at Tinker Air Force Base (AFB) from 1991 to 1996, first as the

Vice Commander, then as the Wing Commander.   As the Vice

Commander, he had little contact with the Boy Scouts.   When he

became Wing Commander, he was asked and accepted, like his

predecessor, to be the District Chairman of one of eight Boy

Scout districts in Oklahoma.

     The Wing Commander has a prominent position at Tinker AFB.

He is the individual on base who interfaces with the community,

including the Chamber of Commerce, the Oklahoma City Neighborhood

Initiatives Program, and the Oklahoma Military Advisor Committee.

Col M also formed the Oklahoma City Bombing Disaster Control

Group.   He was deeply involved with that Control Group for nearly

24 hours a day from April 19, 1995, for 10 days, and 12 hours a

day for 6 weeks thereafter.

     Prior to becoming District Chairman, an unsalaried position,

Col M’s only contact with the Boy Scouts was as a Scout when he

was a child, and a parent of a Scout from 1986-91.   Personally,

he was not overly involved with the Boy Scouts as a youth.   He

reached the rank of Star (two levels below Eagle Scout) and was


                                 3
United States v. Dinges, No. 97-0597/AF


also a member of the Order of the Arrow.          The district

chairmanship did not consume a tremendous amount of time --

meeting less than once a quarter.

       Col M learned of the allegations against appellant from Mr.

Moore, a full-time paid Scout employee, at a district meeting.

Col M contacted the Staff Judge Advocate (SJA) and took actions

similar to any case reported to him, initiating an
investigation,2 appointing an Article 323 investigating officer,

nominating a slate of court members as per standard operating

procedure, and forwarding the charges to the general court-

martial convening authority.        Col M never told Mr. Moore what

actions he took; nor did Mr. Moore ask or pressure him in any

way.    Furthermore, Col M did not know any of the Scouts who had

made allegations against appellant, and was not contacted by any

family member.

       Appellant’s transfer to Tinker AFB from Wright Patterson

AFB, where he was administratively assigned but not physically

located while attending college, was solely to ease the

investigation and potential trial and not out of any personal

interest.    Since appellant was a Doctor of Philosophy candidate

in Chemistry at the University of Oklahoma, his transfer to the

Wing at Tinker AFB resulted in him being gainfully employed by

the Director of Environmental Management at the Air Logistics


2
  It was because of the “don’t ask don’t tell” policy that he called the
Office of Special Investigations and asked them to initiate the investigation.
3
  Uniform Code of Military Justice, 10 USC § 832.
                                      4
United States v. Dinges, No. 97-0597/AF


Center.    Prior to assigning appellant to the Environmental

Management Director, Col M met with appellant and told him that

he should take all the time necessary to work on his defense

because this would be a very stressful time in his life.    When

not working on his defense, Col M told appellant to work hard for

the Director because character evidence makes a difference at

trial.    He then personally drove appellant over to meet the

Director.

     At the DuBay hearing, the SJA described Col M’s Boy Scout

role as an “honorary and nominal position[] in his relations in

the community.”    He was merely a figurehead.   When asked by the

defense if being District Chairman was an appointment duty, he

responded:    “[I]t was like many of his other duties, an honorary

or a very nominal duty.”

     Col M was not even sure he told the SJA of his position

with the Boy Scouts.

                        DISCUSSION - ISSUE I

     Article 1(9), Uniform Code of Military Justice, 10 USC

§ 801(9), defines an “accuser” as

     a person who signs and swears to charges, any person
     who directs that charges nominally be signed and sworn
     to by another, and any other person who has an interest
     other than an official interest in the prosecution of
     the accused.

This provision was first enacted as an amendment to Article

of War 65.    This Article has been described as disqualifying

a person from convening a court-martial who, “by reason of

                                  5
United States v. Dinges, No. 97-0597/AF


having preferred the charge or undertaken personally to

pursue it, ... might be biased against the accused, if

indeed he had not already prejudged his case.”    William

Winthrop, Military Law and Precedents 62 (2d ed. 1920

Reprint); see Arts. 22(b) and 23(b), UCMJ, 10 USC §§ 822(b)

and 823(b).   Moreover, Professor Davis describes an accuser

as one who “initiates a charge out of a hostile animus

toward the accused or a personal interest adverse to

him....”   George B. Davis, A Treatise on the Military Law of

the United States 20 (3d ed. Revised 1913).

     Similarly, this Court has found that there is a personal

interest when the convening authority is the victim of the

accused’s attempted burglary, United States v. Gordon, 1 USCMA

255, 2 CMR 161 (1952); where the accused tries to blackmail the

convening authority by noting that his son was a drug abuser,

United States v. Jeter, 35 MJ 442 (CMA 1992); and where the

accused has potentially inappropriate personal contacts with the

convening authority’s fiancée, United States v. Nix, 40 MJ 6 (CMA

1994).   However, a convening authority is not disqualified

because of “misguided prosecutorial zeal,” United States v.

Voorhees, 50 MJ 494 (1999), or where the convening authority

issues an order that the accused violates.    United States v.

Tittel, 53 MJ 313 (2000).

     Col M had no animus towards appellant and sought to ensure

his gainful employment at Tinker AFB while the investigation was

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United States v. Dinges, No. 97-0597/AF


ongoing.    Col M’s role with the Boy Scouts has been properly

described as titular and “an honorary and nominal” position.4

The initiation of charges was what any commander would do, and

this is demonstrated by the fact that there were no further

communications after the initial report made by Mr. Moore.

Certainly, Col M was not the victim, was not an individual being

blackmailed, and in fact, took less action than the commander in

Tittel.    For these reasons, we hold that Col M did not have “an

interest other than an official interest” in appellant’s case.

                             FACTS - ISSUE II

     Prior to appellant’s plea at his trial on November 14, 1995,

the defense was informed that the victim was given a grant of

immunity.    However, the victim continued in his refusal to

testify, despite the immunity.       Defense indicated after a session

under RCM 802, Manual for Courts-Martial, United States (2000

ed.),5 that they had no notice of the immunity given to the

Scout.    At the request of the judge, the Government gave the

defense a copy of the grant of immunity from the Department of

Justice, as well as the Tinker AFB Staff Judge Advocate’s letter

seeking the grant of immunity.       Those documents describe the

victim’s age as 16.     However, the defense was not given other


4
  Commanders and convening authorities, because of their military positions,
are often called upon to provide services to a host of civic organizations,
both on base and in the surrounding communities. While nothing herein should
discourage this practice, care should be taken to avoid potential
disqualification due to an appearance of personal interest in a matter.
5
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
                                     7
United States v. Dinges, No. 97-0597/AF


documents prepared by attorneys at Bolling AFB and transmitted to

the Department of Justice that misstated the victim’s age.

     The only motion made at that time was to dismiss the charges

on the basis that Article 125, Uniform Code of Military Justice,

10 USC § 925, is constitutionally defective.    The defense also

moved to dismiss on the grounds that the prosecution of the

accused was in violation of Equal Protection rights under the

Constitution; appellant had been singled out because of his

sexual preference that violated Department of Defense Directives.

The judge denied both motions, and they are not at issue in this

case.

                       DISCUSSION - ISSUE II

     Issue II raises questions of standing and mootness.

Assuming, without deciding, that the defense is correct in its

assertion that the Department of Justice gave the victim immunity

under the mistaken belief that he was under 16 years of age when

his sodomous relationship with appellant occurred, that issue is

now moot.   The Government never called the victim as a witness.

See United States v. Napoleon, 46 MJ 279, 281-82 (1997); United

States v. Loving, 41 MJ 213, 258 (1994)(applying mootness to the

question of misconduct of judge).    Secondly, the doctrine of

invited error precludes any relief.    The victim was called by the

defense during the sentencing portion of the trial.    Thus, any

error as to the admission of the testimony was invited by the

defense when they called the witness themselves.    See, e.g.,

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United States v. Dinges, No. 97-0597/AF


United States v. Reid, 46 MJ 236 (1997); United States v. Raya,

45 MJ 251 (1996); United States v. Schnitzer, 44 MJ 380 (1996).

     Thirdly, appellant does not have standing to raise the

violation of another’s Fifth Amendment rights.   United States v.

Johnson, 53 MJ 459, 461 (2000); United States v. Golston, 53 MJ

61, 64 (2000); United States v. Jones, 52 MJ 60, 63-64 (1999).

Additionally, the record is clear that appellant pled guilty to

prevent the victim from facing the consequences of refusing to

testify after receiving a grant of immunity.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                9
BAKER, Judge (concurring)

     A.     Meaning of Accuser

     This case is about the meaning of RCM 601, Manual for

Courts-Martial, United States (1995 ed.), as determined by

the plain language of the rule and this Court’s case law.

RCM 601(c) states: “An accuser may not refer charges to a

general or special court-martial.”    “The term ‘accuser’

means a person who signs and swears to charges, any person

who directs that charges nominally be signed and sworn to

by another, and any other person who has an interest other

than an official interest in the prosecution of the

accused.”    Art. 1(9), Uniform Code of Military Justice, 10

USC § 801(9)(emphasis added).    This Court’s case law puts

further flesh on the meaning of the phrase “other than an

official interest in the prosecution of the accused.”

     Personal interests relate to matters affecting the

convening authority’s ego, family, and personal property.

A convening authority’s dramatic expression of anger

towards an accused might also disqualify the commander if

it demonstrates personal animosity.    United States v.

Voorhees, 50 MJ 494, 498 (1999).    However, an officer need

not act with animus or anger to become an accuser.    United

States v. Allen, 31 MJ 572, 589 (NMCMR 1990).    In applying

RCM 601, this Court has said that we “cannot peer into the
United States v. Dinges, 97-0597/AF


mind of a convening authority to determine his mental

condition, but we can determine from the facts whether

there is a reasonable probability that his being the victim

of an offense tended to influence a delicate selection.”

United States v. Gordon, 1 USCMA 255, 261, 2 CMR 161, 167

(1952).

      Since its inception, this Court has consistently

applied a contextual RCM 601 test:         “[W]hether, under the

particular facts and circumstances . . . a reasonable

person would impute to [the convening authority] a personal

feeling or interest in the outcome of the litigation.”

United States v. Jeter, 35 MJ 442, 445 (quoting United

States v. Gordon, supra at 260, 2 CMR at 166).           In

Voorhees, for example, the Court looked to the record and

found that it “contain[ed] no evidence of personal interest

on the part of the officer acting in appellant’s case[.]”

50 MJ at 499.     Congress has not chosen to legislate a

different, more stringent test, such as those familiar in

other contexts based on the possibility of a conflict, or

the appearance of a conflict.*


*
  There are a number of inherent and facial tensions within the military
justice system and the chain of command which arguably create the
appearance of a conflict of interest. The convening authority, for
example, not only decides whether to prosecute charges at court-
martial, but is also responsible for selecting the members of the
court. Nonetheless, Congress has not chosen to disqualify the
convening authority from selecting members of the jury.


                                   2
United States v. Dinges, 97-0597/AF


     In United States v. Nix, 40 MJ 6 (CMA 1994), the Court

determined that the appellant was entitled to a factual

review as to whether the convening authority had a personal

interest in the outcome of litigation, where the appellant

was charged, inter alia, with inappropriate contacts with

the convening authority’s girlfriend (and subsequently

wife).    As is clear from Nix, this Court has eschewed a per

se rule, or appearance-of-conflict rule, when it comes to

the meaning of the term “accuser.”    If the appearance or

possibility of a conflict was the test, I cannot imagine a

clearer exemplar than Nix, and yet, the case was remanded

to allow the appellant an opportunity to present evidence

on the issue of the convening authority’s “possible bias

against him” and, presuming the truth of the appellant’s

assertions, to determine prejudice.    Id. at 7 (emphasis

added).

     Moreover, the role of an accuser is judged on a

factual continuum rather than with absolute thresholds.      In

Allen, the court reiterated that “[t]he basic test for

determining whether the convening authority is an accuser

is whether he is ‘so closely connected to the offense that

a reasonable person would conclude that he has a personal

interest in the matter.’…    Thus, when a convening authority

directs an action or bases his decision on a personal


                               3
United States v. Dinges, 97-0597/AF


rather than an official interest, he is statutorily

disqualified from acting as a convening authority.”       31 MJ

at 585 (quoting Gordon, supra at 261, 2 CMR at 167).

        This Court has already recognized the applicability of

the contextual Gordon test to this case, stating on remand:

“At the heart of the granted issue is the following

question:     Was Col. M so closely connected with this

offense that a reasonable person would conclude that he had

a personal interest in this case?”     49 MJ at 234 (emphasis

added).     How closely connected was Col M?   The record

reflects the following:

    • Col M was affiliated with the Boy Scouts of America (BSA)

     because he was in a position of community interface as

     Wing Commander and previously as Vice Commander.

•    He was not affiliated with the BSA as an adult before or

     after he held these official positions.

•    There is no indication in the record that appellant’s

     troop was within Col M's district; Col M testified that,

     to his knowledge, it was not.

•    Col M had never met appellant before his transfer to

     Tinker AFB.

•    He did not know any of the alleged victims.




                                4
United States v. Dinges, 97-0597/AF


•   He viewed his affiliation with the BSA as irrelevant to

    appellant’s case.

•   He never responded or advised the BSA as to the status of

    the case.

      For these reasons, the lower court found “no evidence

of personal involvement by Col M in either the

investigation of the charges or the appellant’s transfer to

Tinker AFB.”    Unpub. op. at 3.   This factual finding was

not clearly erroneous.   Based on these “particular facts

and circumstances” and the law as reviewed above, I concur

in the judgment of this Court that Col M was not an accuser

for the purposes of Article 1(9).    To paraphrase the

analysis in United States v. Tittel, 53 MJ 313 (2000), I

find it unlikely, given the nature of the allegation

against appellant, that any competent authority would not

have referred this case to the Office of Special

Investigations (OSI) for appropriate investigation.

Moreover, the record reflects that Col M did not act out of

a sense of loyalty, duty, or legal obligation to the BSA;

after the matter was brought to his attention by Mr. Moore,

he did not have any contact with the BSA regarding this

matter.   Indeed, he never responded to Mr. Moore, as to the

disposition of his inquiry.




                               5
United States v. Dinges, 97-0597/AF


     In hindsight, with all the benefit of retrospect, Col

M might have avoided this issue by stepping out of the

process.     However, he was not required legally to do so.

     B.    Waiver

     Appellant is not well situated to complain.     During

discovery, appellant’s counsel received the statement of

Paul Moore, the BSA executive who asked Col M to look into

this matter.    This four-page statement includes the

following reference to Col M:

     6/3/95 – I talked with Big Teepe [Sic] District
     Chairman, Col [M]. He indicated the Air Force would
     look into the case.

     The DuBay record indicates that Moore’s statement

would have been provided to appellant sometime after his

discovery request of October 12, 1995, but prior to October

24, 1995, on which date a subsequent Government response to

discovery states that the Government previously provided

the OSI report of investigation to appellant      During this

same time period, appellant would have known that Col M was

taking official actions regarding his case.      Among other

things, Col M signed the appointing order for an Article 32

investigation.      A copy of this appointing order would have

been disseminated to defense counsel prior to the

investigation and would have been included with the Article

32 investigation report provided to counsel.      Appellant


                                 6
United States v. Dinges, 97-0597/AF


would have had 5 days to submit objections to this report.

RCM 405(j)(4).

     On October 25, 1995, one day after we can be certain

appellant was in possession of Mr. Moore’s statement, Col M

transmitted to the convening authority a recommendation for

a general court-martial.   Presumably, appellant and counsel

would have been in receipt of a copy of this document

before trial as well.   Nonetheless, appellant did not raise

his concerns regarding Col M's possible position as an

“accuser” until his appeal to the Court of Criminal

Appeals.

     Appellant might have tested whether Col M was an

“accuser” for the purposes of RCM 601(c) prior to the

appellate process.   However, because the CCA has not erred

in applying RCM 601 to this case, we need not decide

whether the one sentence in Mr. Moore’s statement provided

a sufficient foundation to find that appellant waived his

RCM 601 claim.




                              7
United States v. Dinges, No. 97-0597/AF




EFFRON, Judge, with whom SULLIVAN, Judge, joins (dissenting):

       The majority opinion concludes that it was permissible for

Col M to act as the special court-martial convening authority in

the present case.    Col M, however, was subject to conflicting

interests which precluded him from exercising the prosecutorial

discretion of a special court-martial convening authority under

applicable statutes, rules, and case law.    See Arts. 1(9),

22(b), and 23(b), UCMJ, 10 USC §§ 801(9), 822(b), and 823(b);

RCM 401(c)(2)(A), Manual for Courts-Martial, United States (2000

ed.); United States v. Gordon, 1 USCMA 255, 261, 2 CMR 161, 167

(1952); United States v. Nix, 40 MJ 6 (CMA 1994).    I

respectfully dissent.



                            I. BACKGROUND

  A.    The exercise of prosecutorial discretion by court-martial
                        convening authorities

       The special court-martial convening authority plays a

pivotal role in the military justice system, with broad

discretion over the disposition of allegations and charges.

Under RCM 306 and RCM 404, Manual, supra, Col M had virtually

unfettered authority to choose among a variety of options,

including: (1) follow the lead of civilian authorities and take

no action; (2) dismiss any charges that may have been preferred;
United States v. Dinges, No. 97-0597/AF


(3) take administrative action; (4) institute nonjudicial

punishment proceedings; (5) refer the charges to a summary

court-martial; (6) refer the charges to a special court-martial;

or (7) order an investigation under Article 32, UCMJ, 10 USC

§ 832.   After receiving the report of the Article 32

investigating officer, Col M had the authority to take any of

the actions available to him prior to the investigation, as well

as the option -- which he exercised -- of forwarding the matter

to a superior commander for consideration of referral to a

general court-martial.   See RCM 404(c).   Although a

servicemember’s fate ultimately rests with the forum in which a

case is considered, the exercise of prosecutorial discretion by

the special court-martial convening authority is a critical

decision point, particularly in terms of the severity of

possible punishment.

     To ensure that court-martial convening authorities exercise

their considerable discretion with objectivity and without

influence of personal interest, Articles 22(b) and 23(b)

prohibit a commanding officer from convening a general or

special court-martial when that officer is an “accuser.”    The

definition of “accuser” under the Code includes a “person who

has an interest other than an official interest in the

prosecution of the accused.” Art. 1(9); see also RCM 401(c)(2).

A commanding officer who is disqualified from functioning as a


                                 2
United States v. Dinges, No. 97-0597/AF


convening authority because he or she is an accuser must forward

the charges for disposition by a superior convening authority.

See Arts. 22(b) and 23(b); RCM 504(c)(3), Manual, supra.


      B. The relationship between Col M’s interests and the
                    investigation of appellant

     As we noted in our initial review of this case, “At the

heart of the granted issue is the following question:   Was Col M

so closely connected with this offense that a reasonable person

would conclude that he had a personal interest in this case?”

49 MJ at 234.   The factual background concerning Col M’s

interest is detailed in the record of the proceedings we ordered

under United States v. Dubay, 17 USCMA 147, 37 CMR 411 (1967).

When Col M assumed command of the 72nd Air Base Wing at Tinker

Air Force Base (AFB) in July 1994, local Boy Scout officials

asked him to be Chairman of the Big Teepee District of the Boy

Scouts, one of eight districts in Oklahoma.   Col M initially

declined the request, but he reconsidered and decided to serve

as Chairman because “he thought he could get good people to pay

attention to them [the Boy Scouts organization] and to help them

raise money[.]”   The Council held 6 bimonthly meetings each

year, and Col M attended “approximately 4” of the 6 meetings.

     As Chairman of the Big Teepee District, Col M “was

automatically also a member of the Board of Directors for the

Last Frontier Council . . . a separately incorporated local Boy


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United States v. Dinges, No. 97-0597/AF


Scout council serving central, western, and southwestern

portions of the State of Oklahoma.”    The Board of Directors

exercised responsibility over the annual fundraising campaign.

As a member of the Board, Col M “was responsible for contacting

10 to 12 fairly prominent people in the community and giv[ing]

each of them a list of names to call and ask for money on behalf

of the Boy Scouts.”

     Mr. Paul Moore, a central figure in the events that led to

appellant’s court-martial, was the Executive Director of the

Last Frontier Council.   As a salaried employee of the Boy

Scouts, he was responsible for the day-to-day operations of the

Council and accountable to the Council’s Board of Directors.     In

November 1994, Mr. Moore heard of alleged sexual relationships

between appellant, who then was an assistant scoutmaster of a

troop, and several Boy Scouts.   After “verif[ying] the

information in his own mind,” Mr. Moore confronted appellant,

who confirmed one such relationship.    Mr. Moore thereupon

suspended appellant’s involvement in the Boy Scouts.

     After this meeting, Mr. Moore contacted civilian “local law

enforcement officials to explore possible investigation

concerning Captain Dinges’ conduct.”    The civilian officials

advised Mr. Moore that because appellant’s alleged relationship

involved an individual who was older than 16 years of age, the




                                 4
United States v. Dinges, No. 97-0597/AF


age of consent in Oklahoma, the civilians “were not interested

in prosecuting” appellant.∗

      On June 3, Col M attended the Last Frontier Council meeting

at the Scout Service Center in Oklahoma City.           Mr. Moore

approached Col M, who was wearing his Air Force uniform, and

“indicated that he had received information about an improper

relationship between Captain Dinges and a Boy Scout.”             Mr. Moore

asked “if this was something that the Air Force should be aware

of,” and Col M responded that “he was not sure, but that it was

something the Air Force should look into and an investigator

would contact Mr. Moore.”

      Later that day, Col M contacted his Staff Judge Advocate,

who confirmed that the matter fell “within the scope of matters

for investigation.”      The following day, Col M provided the Air

Force Office of Special Investigations (OSI) with the

information he received from Mr. Moore.          The OSI, in turn,

obtained permission to open an investigation from appellant’s

commander at the Air Force Institute of Technology (AFIT).


          C. Col M’s exercise of prosecutorial discretion

      In August, appellant’s commander was advised that the




∗
  The record also indicates that in May 1995, Mr. Moore heard of contact
between appellant and two 15-year old Boy Scouts, but it does not provide any
details, and this information was not reflected in the charges against
appellant.


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United States v. Dinges, No. 97-0597/AF


investigation was complete, that there was “sufficient

information to disenroll Captain Dinges” from the PhD program in

which he was a full-time student, and that the “recommended

approach” was to transfer control of appellant from the AFIT to

Tinker AFB.   The commander agreed and called Col M to determine

whether it was possible to transfer appellant to an organization

at Tinker AFB “while the court process was being facilitated.”

Col M agreed to the reassignment of appellant.       Appellant was

designated as a “special assistant” to Col M, and he was

assigned to work in the Environmental Management Directorate.

     Col M directed an Article 32 investigation into the

allegations, and the investigating officer recommended that

charges be referred to trial by a general court-martial.       Col M

forwarded this recommendation to the general court-martial

convening authority with his concurrence and recommended the

names of possible court-members.       Col M did not disclose his

affiliation with the Boy Scouts of America when he forwarded his

recommendation to the general court-martial convening authority.



                          II.   DISCUSSION


     Col M held high-level positions of responsibility in the

Boy Scout organization.   He was a District Chairman and, in that

capacity, served as a member of the Council’s Board of



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United States v. Dinges, No. 97-0597/AF


Directors.    As such, he owed a fiduciary duty of loyalty to the

Boy Scouts.   See Okla. Stat. Ann. tit. 18, § 1006B.7.a;

Resolution Trust Corp. v. Greer, 911 P.2d 257, 261 n.9 (Okla.

1995); Wilson v. Harlow, 860 P.2d 793, 798 (Okla. 1993).     This

was more than a nominal position.     An important element of his

responsibilities involved using his influence to persuade

persons of means to financially support the Boy Scouts.

     The subject of homosexuality is a highly charged matter for

both the Boy Scouts, see Boy Scouts of America v. Dale, 530 U.S.

640, 644 (2000) (sustaining the Boy Scouts’ First Amendment

right to eject an admitted homosexual assistant scoutmaster from

adult membership), and for the armed forces, see 10 USC § 654

(policy concerning homosexuality in the armed forces).     With

respect to the allegations against appellant, the impact on each

entity was not necessarily the same.     Because the impact could

vary, there was a reasonable possibility that each

organization's assessment of the proper disposition of the

charges, and the factors considered in that process, would

differ.

     The potential conflict between Col M’s personal interest in

the impact the allegations might have on his fundraising and

other activities with the Boy Scouts, on the one hand, and his

role as appellant’s Air Force commander, on the other, is

precisely the type of situation that Congress sought to avoid


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United States v. Dinges, No. 97-0597/AF


when it disqualified an accuser from serving as a special or

general court-martial convening authority.    We need not question

Col M’s good faith, self-assessment of impartiality to find that

his personal interest disqualified him from serving as a special

court-martial convening authority.    The majority finds it

noteworthy that Col M was not the victim of appellant’s conduct,

and that he was not blackmailed by appellant.    The test,

however, is not whether a commander exhibited bias or prejudice,

but simply whether the commander had “an interest other than an

official interest in the prosecution of the accused.” Art. 1(9).

Because Col M had such an interest, he was disqualified from

exercising authority over appellant’s case and should have

notified the general court-martial convening authority under RCM

401(c)(2).    Under these circumstances, the findings and sentence

should be set aside and the case should be returned to the Judge

Advocate General with authority to order a rehearing.        See Nix,

40 MJ at 8.




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