              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39001
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                          David R. ALLEN
            Master Sergeant (E-7), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 11 August 2017
                          ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge, confinement for 1 year, re-
duction to E-3, and a reprimand. Sentence adjudged 17 October 2015
by GCM convened at Ramstein Air Base, Germany.
For Appellant: Major Annie W. Morgan, USAF; Brian L. Mizer, Es-
quire.
For Appellee: Lieutenant Colonel Lance R. Smith, USAF; Major Collin
F. Delaney, USAF; Major Mary Ellen Payne, USAF; Captain Matthew
L. Tusing, USAF; Gerald R. Bruce, Esquire.
Before DREW, HARDING, and MINK, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge HARDING and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

DREW, Chief Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of two specifications of dereliction of duty by willfully
                      United States v. Allen, No. ACM 39001


failing to refrain from pursuing an unprofessional sexual relationship with
two junior Airmen, including Airman First Class (A1C) CG, in violation of
Article 92(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892(3);
two specifications of dereliction of duty by willfully failing to refrain from
pursuing an unprofessional dating relationship with two other junior Airmen,
also in violation of Article 92(3); and one specification of sexual assault of
A1C CG, in violation of Article 120, UCMJ, 10 U.S.C. § 920. 1 The court-
martial sentenced Appellant to a bad-conduct discharge, confinement for one
year, reduction to E-3, and a reprimand. The convening authority approved
the adjudged sentence.
    Appellant raises several assignments of error on appeal: (1) whether the
unprofessional relationship specifications are void for vagueness; (2) whether
the evidence is factually and legally sufficient to prove Appellant was derelict
in his duties by pursuing unprofessional relationships; (3) whether the evi-
dence is factually and legally sufficient to prove Appellant sexually assaulted
A1C CG; (4) whether the military judge abused his discretion in denying a
Defense request to reopen sentencing based on newly discovered evidence; 2
(5) whether the military judge abused his discretion in denying a Defense re-




1 After arraignment but before the members were sworn, the convening authority
withdrew and dismissed a specification of rape, in violation of the version of Article
120, UCMJ, applicable on or before 30 September 2007. At the close of findings, the
military judge granted a motion for a finding of not guilty, in accordance with Rule
for Courts-Martial (R.C.M.) 917, as to a specification of abusive sexual contact of A1C
CG, in violation of Article 120, but permitted the Prosecution to proceed with the
lesser included offense of attempted abusive sexual contact, in violation of Article 80,
UCMJ, 10 U.S.C. § 880. The court-martial acquitted Appellant of the attempted abu-
sive sexual contact offense and of an additional specification of dereliction of duty by
willfully failing to refrain from pursuing an unprofessional dating relationship with
yet another junior Airman.
2 The evidence Appellant asserts was newly discovered was a text message sent by
A1C CG to a staff sergeant in her unit after she was granted an expedited transfer
and early release from active duty. Appellant contends that the text message is evi-
dence of A1C CG’s manipulative character to “work the system.” The text message
came into the custody of the Defense during the sentencing hearing. We leave for an-
other day the question of whether, in a litigated members case, evidence discovered
after the members have announced their findings in open court but before the ad-
journment of the court-martial is discovered “after the trial.” See R.C.M.
1210(f)(2)(A); see also Manual for Courts-Martial, United States (2012 ed.) (MCM),
App. 21, at A21–98 (“Article 73 authorizes a petition for new trial of the facts when
there has been a trial. When there is a guilty plea, there is no trial.”).




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                     United States v. Allen, No. ACM 39001


quest to reopen findings based on newly discovered evidence; 3 and
(6) whether the military judge abused his discretion in giving a false exculpa-
tory statement instruction to the members. In addition, Appellant personally
filed a very lengthy document, pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). However, to the degree Appellant’s personal filing
raises issues appropriate for our consideration that were not already ad-
dressed by his appellate counsel in their brief and assignments of error, they
do not require further discussion or warrant relief. See United States v. Mati-
as, 25 M.J. 356, 361 (C.M.A. 1987).
    Appellant also petitioned The Judge Advocate General of the Air Force for
a new trial based on the newly discovered evidence Appellant raises in issues
(4) and (5) above. That request was forwarded to this court. See Rule for
Courts-Martial 1210(e). In light of our decision below finding the evidence
factually insufficient to prove Appellant sexually assaulted A1C CG, Appel-
lant’s petition for a new trial 4 and issues (4) through (6) are moot. We also
find that the specification alleging an unprofessional relationship with
A1C CG is factually insufficient. We affirm the remaining dereliction of duty



3 We note that Appellant never requested to reopen findings. This is not surprising as
the military judge had no authority to allow it. Both Appellant’s and the Govern-
ment’s briefs now cite to United States v. Fisiorek, 43 M.J. 244 (C.A.A.F. 1995). In
particular, Appellant quotes: “It is now beyond doubt in military jurisprudence that a
military judge is empowered to reopen a case even after findings have been an-
nounced.” 43 M.J. at 247. A1C Fisiorek’s court-martial occurred in December 1989.
At that time, R.C.M. 924(a), Manual for Courts-Martial, United States (1984 ed.),
which was based on longstanding military jurisprudence and the Manual for Courts-
Martial, United States, ¶ 74d(3) (1969 rev. ed.), read “Time for reconsideration.
Members may reconsider any finding reached by them before such finding is an-
nounced in open session. Members may reconsider any finding of guilty reached by
them at any time before announcement of sentence.” However, in 1995, several years
after A1C Fisiorek’s trial, the President deleted the second sentence of R.C.M. 924(a),
removing the authority for court members to reconsider a finding of guilty after it
has been announced in open session. Thus, without the ability of court members to
reconsider their guilty findings, the military judge could not have reopened the find-
ings case once the court members announced their findings in open session. See Unit-
ed States v. Thompson, 59 M.J. 432, 440 (C.A.A.F. 2004) (“When the panel announced
its findings in open court, those findings were final and were not subject to reconsid-
eration by the members.”); see also United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001) (“The version of RCM 924(a) in effect at the time of appellant’s trial
did not permit court members to reconsider findings after they are announced.”).
4See Allen v. United States, Misc. Dkt. No. 2017-02, slip op. (A.F. Ct. Crim. App. 11
Aug. 2017) (unpub. op.).




                                          3
                    United States v. Allen, No. ACM 39001


specifications, set aside the sentence, and remand the case for a rehearing on
sentence.

                                I. BACKGROUND
    Appellant, an unmarried male master sergeant (E-7), was the Unit Train-
ing Monitor for the 24th Intelligence Squadron (24 IS) at Ramstein Air Base,
Germany. Each of the junior Airmen listed in the dereliction specifications
was an unmarried female who held the rank of A1C (E-3) at the time of the
offenses and was also assigned to 24 IS, except for A1C CG, who was an un-
married female assigned to another squadron. As part of his official duties,
Appellant in-processed the 24 IS Airmen, provided them counseling on their
upgrade training in the intelligence career field, and had on-going official re-
sponsibilities to monitor their training in the squadron. While A1C CG was
not assigned to 24 IS, she did work in the same building as Appellant and
first met him when she was in-processing into her own squadron. 5 Appellant
was not A1C CG’s Unit Training Monitor or supervisor. Other than being a
superior noncommissioned officer in the same military service as A1C CG,
Appellant and A1C CG had no official duty relationship. Unlike Appellant’s
relationships with the 24 IS Airmen, he had no direct or indirect organiza-
tional influence over A1C CG’s duties or career.
    Numerous witnesses testified that Appellant paid special attention to at-
tractive young female Airmen during in-processing, on occasions to the det-
riment of male Airmen, whom he would direct to come back later to in-
process with him. His favoritism was noticed not only by the junior Airmen,
but also by the squadron commander’s civilian executive assistant and by
several noncommissioned officers in the squadron. The civilian and two tech-
nical sergeants (E-6) separately, and on different occasions, confronted Appel-
lant with how his interactions with the junior female Airmen were being neg-
atively perceived by others in the squadron. The Government introduced tes-
timony about a so-called “Allen Briefing,” in which newly assigned junior fe-
male Airmen were advised about Appellant’s interest in attractive young fe-
males.
    Appellant and A1C CG met at Ramstein Air Base, Germany, while she
was touring the building that her squadron shared with Appellant’s squad-
ron. Appellant later came up to her on a Friday afternoon at the base dining
facility and joined her for lunch. After they ate, Appellant offered to drive


5 The Government’s brief incorrectly states that “[A1C CG]’s first duty assignment
required her to in-process with Appellant . . . .”




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                    United States v. Allen, No. ACM 39001


A1C CG to the Airman’s Attic, where she volunteered. Later that evening,
she accepted Appellant’s Facebook friend request and they exchanged over
150 messages over the course of the evening and early morning. Later on
Saturday, A1C CG accepted an invitation to come over to Appellant’s apart-
ment for a meal, and he picked her up and drove her to his apartment. After
a tour of his apartment, Appellant went upstairs and took a shower to rinse
off the chlorine from a swim he took earlier in the day.
    A1C CG testified as follows:
    • When Appellant returned downstairs to the living room, he sat next to
      her and kissed her. She moved off of the chair they were sitting on, and
      Appellant followed her across the room. She later went upstairs to use
      the restroom, and when she emerged she learned that Appellant had
      followed her upstairs. He groped her, and she retreated into Appel-
      lant’s bedroom. Appellant removed her clothing, placed her on his bed,
      and disregarded her verbal protestations—such as “Sergeant Allen, you
      can’t do this” and “Sergeant Allen, no”—and attempts to scoot away
      from him. At some point she told him, “If you’re going to do this, if this
      is going to happen, wear a condom, so I don’t catch any STDs.” When
      Appellant left to get a condom, she attempted to put on her pants; how-
      ever, Appellant took her pants from her. Appellant returned with a
      condom and had sexual intercourse with her for four to five minutes.
    • After Appellant finished, she left the room to use the bathroom. After
      using the bathroom, she went downstairs to find Appellant making
      dinner. She stated that she did not flee Appellant’s apartment because
      he was “acting normal.” Appellant’s “normal” response added to her
      confusion about how to “classify” what had happened because she
      thought of sexual assault as “someone getting physically beat” and Ap-
      pellant “didn’t do any of that . . . , he was still normal.” A1C CG further
      testified that while preparing dinner she confronted Appellant by ask-
      ing him, “[W]hy didn’t you stop when I told you to stop?” To which he
      replied, “[Y]our mouth was saying no, but your . . . vagina was saying
      yes.” After dinner, they watched a movie in the living room and then
      ended up back in Appellant’s bedroom. Appellant attempted to place
      his penis in her mouth but she moved her head and he eventually gave
      up. 6 When Appellant refused to drive her back to her on-base dormitory
      because he had just taken prescription pain medication for a recent


6 This constituted the attempted abusive sexual contact allegation, of which the
court-martial acquitted Appellant.




                                        5
                    United States v. Allen, No. ACM 39001


      back injury, she ended up spending the night in Appellant’s bed, next
      to him. She testified that she did not seek to sleep on the couch because
      “he was going to follow, so it really didn’t matter wherever I went.”
    When later interviewed by agents from the Air Force Office of Special In-
vestigations (AFOSI), Appellant largely corroborated A1C CG’s account, but
insisted that the sexual activity was consensual. In particular, he admitted
that at various times throughout the evening he would jokingly direct
A1C CG to perform a task—such as get him a drink or hand him the televi-
sion remote—because he was a master sergeant and she was an airman first
class. Appellant also admitted that at various times during the sexual activi-
ty A1C CG did tell him to stop, but he said that it was due to difficulties in
lubrication and that each time he did stop. They then tried various tech-
niques to resolve the issue, and thereafter mutually resumed vaginal inter-
course. Appellant became frustrated with the stopping and resuming, and he
eventually “stopped trying.” Appellant maintained that he “never finished.”
Upon search of Appellant’s home, AFOSI discovered a condom that testing
revealed contained Appellant’s sperm cells. Defense counsel argued that the
presence of sperm cells did not necessarily mean that Appellant ejaculated.
Expert testimony on that point was ambiguous.
    The morning after the alleged sexual contact, Appellant drove A1C CG
back to the base and agreed to wait for her to shower and change and then
drive her to the Base Exchange (BX) where she had a part-time job. Accord-
ing to what Appellant told investigators at the AFOSI a couple of days later,
when he dropped her off at the BX, A1C CG attempted to kiss him, but he
refused to allow her to kiss him in public because of their rank difference.
When asked about this on cross-examination, A1C CG denied that she at-
tempted to kiss Appellant at the BX. Appellant further told the investigators
that after he rebuffed her attempt to kiss him, A1C CG became angry and
stormed off. He also told them that the BX security cameras should have cap-
tured the incident; however, the investigators never attempted to retrieve the
video to confirm Appellant’s account.
    After getting off work at the BX, A1C CG sent Appellant a series of text
messages. She told him that they should not talk anymore and “To me it just
seems like you just want sex from me and I’m not about to waste my time on
someone who just wants sex. Need someone that I can actually get to know
and vice versa instead of knowing what’s in between my legs.” Appellant told
her he was not yet over a previous relationship and was not ready to start
anything serious. She responded: “I don’t never see us being serious on any
level due to the fact of your current situation. Also, I just get that feeling is
that’s all you want and the whole sneaking around issue, I’m to [sic] grown
for that.”



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                    United States v. Allen, No. ACM 39001


   The following day, A1C CG talked to her flight chief about her situation.
The flight chief asked A1C CG if she hadn’t gotten the “Allen Briefing.”
A1C CG said she had no idea what that was. Ultimately, she decided to re-
port her encounter with Appellant as a sexual assault. Approximately two
months after making her allegation, A1C CG received an expedited transfer
back to the United States and separated from the Air Force early, after just
two years of service.
    Several witnesses testified during the Defense case-in-chief indicating
that, in their opinion and assessment of her reputation, A1C CG had poor
character for truthfulness. The Defense also elicited that A1C CG had made a
joking comment to a friend that she liked to date men who were technical
sergeants (E-6) or older, a statement that A1C CG denied.

                               II. DISCUSSION
A. Void for Vagueness
    Appellant’s convictions included four specifications in Charge I of derelic-
tion of duty under Article 92(3), UCMJ, specifically two specifications for pur-
suing unprofessional dating relationships with two A1Cs and two specifica-
tions for pursuing unprofessional sexual relationships with two other A1Cs.
Specifications 1, 3, and 4 each involved a member of Appellant’s organization.
Specification 5 did not. The specifications are as follows:
       Specification 1: In that [Appellant] who knew of his duties at or
       near Ramstein Air Base, Germany, . . . was derelict in the per-
       formance of those duties in that he willfully failed to refrain
       from pursuing an unprofessional sexual relationship with [A1C
       BN], as it was his duty to do.
       Specification 3: In that [Appellant] who knew of his duties at or
       near Ramstein Air Base, Germany, . . . was derelict in the per-
       formance of those duties in that he willfully failed to refrain
       from pursuing an unprofessional dating relationship with [A1C
       JS], as it was his duty to do.
       Specification 4: In that [Appellant] who knew of his duties at or
       near Ramstein Air Base, Germany, . . . was derelict in the per-
       formance of those duties in that he willfully failed to refrain
       from pursuing an unprofessional dating relationship with [A1C
       KV], as it was his duty to do.
       Specification 5: In that [Appellant] who knew of his duties at or
       near Ramstein Air Base, Germany, . . . was derelict in the per-
       formance of those duties in that he willfully failed to refrain



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                     United States v. Allen, No. ACM 39001


       from pursuing an unprofessional sexual relationship with [A1C
       CG], as it was his duty to do.
    “Article 92(3), UCMJ, requires proof of certain military duties . . . .” Unit-
ed States v. Hayes, 71 M.J. 112, 115 (C.A.A.F. 2012). The Manual for Courts-
Martial, United States (2012 ed.) (MCM), pt. IV, ¶ 16.c.(3)(a), states that the
duty “may be imposed by treaty, statute, regulation, lawful order, standard
operating procedure, or custom of the service.” To withstand a challenge on
vagueness grounds, a regulation must provide sufficient notice so that a ser-
vicemember can reasonably understand that his conduct is proscribed. United
States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 2003); see also United States v.
Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (“Due process requires ‘fair notice’
that an act is forbidden and subject to criminal sanction.”) (quoting United
States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Sources of fair notice in-
clude military regulations. United States v. Pope, 63 M.J. 68, 73 (C.A.A.F.
2003). The military judge took judicial notice of the following provisions of Air
Force Instruction (AFI) 36-2909, Personnel: Professional and Unprofessional
Relationships (1 May 1999):
       This instruction establishes command, supervisory and per-
       sonal responsibilities for maintaining professional relation-
       ships between Air Force members . . . .
              ....
       2.2. Unprofessional Relationships. Relationships are unpro-
       fessional, whether pursued on or off-duty, when they detract
       from the authority of superiors or result in, or reasonably cre-
       ate the appearance of, favoritism, misuse of office or position,
       or the abandonment of organizational goals for personal inter-
       ests. Unprofessional relationships can exist . . . between enlist-
       ed members . . . .
              ....
       3.1. Relationships Within an Organization. Familiar rela-
       tionships between members in which one member exercises su-
       pervisory or command authority over the other can easily be or
       become unprofessional. Similarly, differences in grade increase
       the risk that a relationship will be, or will be perceived to be
       unprofessional, because senior members in military organiza-
       tions normally exercise authority or some direct or indirect or-
       ganizational influence over the duties and careers of more jun-
       ior members. The danger for abuse of authority is always pre-
       sent. The ability of the senior member to influence, directly or
       indirectly, assignments, promotion recommendations, duties,


                                        8
                      United States v. Allen, No. ACM 39001


       awards, and other privileges and benefits, places both the sen-
       ior member and the junior member in vulnerable positions.
       Once established, such relationships do not go unnoticed by
       other members of a unit. . . .
               ....
       3.3 Dating and Close Friendships. Dating, courtship, and
       close friendships between men and women are subject to the
       same policy considerations as are other relationships. Like any
       personal relationship, they become matters of official concern
       when they adversely affect morale, discipline, unit cohesion,
       respect for authority, or mission accomplishment. Members
       must recognize that these relationships can adversely affect
       morale and discipline, even when the members are not in the
       same chain of command or unit. The formation of such rela-
       tionships between superiors and subordinates with the same
       chain of command or supervision is prohibited because such re-
       lationships invariably raise the perception of favoritism or
       misuse of position and erode morale, discipline and unit cohe-
       sion.
               ....
       3.7 Other Relationships. Other relationships, not specifically
       addressed above, can, depending on the circumstances, lead to
       actual or perceived favoritism or preferential treatment and, if
       so, must be avoided. . . .
    AFI 36-2909 provides fair notice that military members have a duty to
maintain professional relationships with other military members.7 With re-
gard to Appellant’s unprofessional relationships with junior Airmen in his
organization (specifications 1, 3, and 4), AFI 36-2909 put him on fair notice
that his pursuit of dating and sexual relationships with subordinates, over
which he had supervisory responsibility as their Unit Training Monitor, was
a violation of that duty. In addition, AFI 36-2909 is evidence that the duty to
avoid unprofessional relationships is not limited to personnel within a mem-
ber’s chain of command, as “relationships can adversely affect morale and
discipline, even when the members are not in the same chain of command or
unit.” Id. ¶ 3.3. However, not all relationships outside a unit are prohibited.
Other relationships become unprofessional when “depending on the circum-

7 AFI 36-2909 also establishes a military member’s duty to maintain professional re-
lationships with Air Force civilian employees and government contractor employees.




                                         9
                    United States v. Allen, No. ACM 39001


stances, [they] lead to actual or perceived favoritism or preferential treat-
ment and, if so, must be avoided.” Id. ¶ 3.7. See, e.g., United States v. Dupree,
No. ACM S31828, 2013 CCA LEXIS 2, at *3 (A.F. Ct. Crim. App. 4 Jan. 2013)
(unpub. op.) (unprofessional relationship existed between appellant, a master
sergeant, and a senior airman (E-4) from another unit who served with him
on the base honor guard), rev. denied, 72 M.J. 393 (C.A.A.F. 2013). According-
ly, AFI 36-2909 provided Appellant with sufficient notice of his duty to re-
frain from unprofessional relationships. A breach of that duty by failing to
refrain from pursuing unprofessional relationships may properly form the
basis for a violation of Article 92(3) and its corresponding criminal sanctions.
Accordingly, the dereliction of duty specifications were not void for vague-
ness.
B. Legal and Factual Sufficiency
   1. Dereliction of Duty
    Appellant challenges the legal and factual sufficiency of the evidence sup-
porting the dereliction of duty convictions. We review both legal and factual
sufficiency de novo. United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007).
The test for legal sufficiency of the evidence is “whether, considering the evi-
dence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” Unit-
ed States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987); see also United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term “reasonable doubt” does
not mean that the evidence must be free from conflict. United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal suffi-
ciency, we are bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role,
we take “a fresh, impartial look at the evidence,” applying “neither a pre-
sumption of innocence nor a presumption of guilt” to “make [our] own inde-
pendent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). As with legal sufficiency, the term “reason-
able doubt” “does not mean that the evidence must be free of conflict.” United
States v. Galchick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).
    To sustain a conviction for dereliction of duty as alleged in the specifica-
tions of Charge I, the Government was required to prove: (1) that Appellant
had a duty to refrain from pursuing an unprofessional dating or sexual rela-

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                        United States v. Allen, No. ACM 39001


tionship with each of the indicated junior Airmen; (2) that he actually knew
of the duties; and (3) that he willfully was derelict in the performance of those
duties. 8
    The basic facts, that Appellant pursued the female junior Airmen named
in the specifications for dating or sexual relationships, were not in dispute.
What Appellant did contest was whether the relationships he sought to culti-
vate constituted, in each instance, an unprofessional relationship. There was
abundant evidence that, in carrying out his official duties as the Unit Train-
ing Manager, he showed favoritism and preferential treatment toward the
three junior Airmen from his unit, as alleged in Specifications 1, 3, and 4. His
unprofessional relationship with these Airmen did not go unnoticed and he
was counseled by other members of the unit about the negative impact his
actions were having on the unit. The evidence presented at trial as to specifi-
cations 1, 3, and 4 met all of the elements of the offense of dereliction of duty
and considering the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all the essential elements beyond a
reasonable doubt. Having reviewed the entire record of trial and making al-
lowances for not personally observing the witnesses, we are convinced of Ap-
pellant’s guilt as to those specifications beyond a reasonable doubt.
    The remaining dereliction of duty specification, Specification 5, which al-
leges that Appellant was derelict in failing to refrain from pursuing an unpro-
fessional relationship with A1C CG, presents a different situation. Unlike the
other junior Airmen, she was not assigned to Appellant’s unit. Unlike the of-
ficial honor guard additional duties that the appellant in Dupree had with the
junior Airman who was not assigned to his unit, Appellant had no official du-
ty superior/subordinate relationship with A1C CG. Many of the Prosecution
witnesses emphasized the relative age differences between Appellant (37 at
the time) and the junior Airmen, including A1C CG (20 at the time). Howev-
er, their concern about Appellant being “too old” to pursue relationships with
these women reflects not a military standard, but their own personal sense of
propriety. AFI 36-2909 does not establish age differences as a basis for an
unprofessional relationship and the witnesses’ personal views in that regard
did not establish a military duty which could form the basis for a violation of
Article 92(3).
    When confronted by an investigator from AFOSI with A1C CG’s claim
that he had sexually assaulted her, Appellant did not dispute the investiga-
tor’s characterization of their relationship as “unprofessional.” While that


8   MCM, pt. IV, ¶ 16(b)(3) (2012 ed.).




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                    United States v. Allen, No. ACM 39001


was no doubt powerful evidence available to the Prosecution, his failure to
dispute at the time what was a far less serious allegation than other allega-
tions he was facing does not relieve the Prosecution from establishing a legal-
ly cognizable unprofessional relationship. In its closing argument, the Prose-
cution focused on the duty relationships that Appellant had with the other
junior Airmen. With regard to A1C CG, they pointed to the rank difference
and the fact they worked in the same building: “It was unprofessional be-
cause of the rank difference, because of the question it might raise for mem-
bers when they see [Appellant] in a sexual relationship with an E-2.” 9 In the
absence of a duty relationship or an attempt to use superior rank to influence
the duties or career of the subordinate, rank differences among enlisted
members alone is not a sufficient basis to establish an unprofessional rela-
tionship. While AFI 36-2909, ¶ 3.7, does state that “[o]ther relationships, not
specifically addressed above, can, depending on the circumstances, lead to ac-
tual or perceived favoritism or preferential treatment” (emphasis added), it is
incumbent upon the Prosecution to indicate precisely what those circum-
stances are. The record is completely devoid of any evidence of actual or per-
ceived favoritism or preferential treatment that Appellant provided to A1C
CG.
    After taking a fresh, impartial look at the evidence, making our own in-
dependent determination as to whether the evidence constitutes proof of each
required element of dereliction duty for failing to refrain from pursuing an
unprofessional relationship with A1C CG, and making allowances for not
having personally observed the witnesses, we are not convinced of Appellant’s
guilt beyond a reasonable doubt and thus find the evidence factually insuffi-
cient. Accordingly, we set aside the finding of guilt to Specification 5 of
Charge I.
    2. Sexual Assault
    To sustain a conviction for sexual assault as alleged in Specification 1 of
Charge II, the Government was required to prove: (1) that Appellant commit-
ted a sexual act upon A1C CG, to wit: penetration of her vulva with his penis;
(2) that Appellant did so by causing bodily harm to A1C CG, to wit: penetra-




9Several times during the trial, the Prosecution referred to A1C CG and some of the
other junior Airmen as E-2s. However, all specifications list their rank as Airman
First Class (E-3).




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                    United States v. Allen, No. ACM 39001


tion of her vulva with his penis; and (3) that Appellant did so without
A1C CG’s consent. 10
     Appellant conceded that he engaged in the charged sexual act with
A1C CG. The only fact in dispute was whether he did so without her consent.
While there is no set of responses, or lack thereof, that proves that an indi-
vidual did not consent to sexual activity, there are a number of significant
actions that A1C CG admitted to taking that raise serious doubt about her
state of mind or whether she had adequately communicated her lack of con-
sent. On the one hand, she testified that she said “no” and attempted to scoot
away from him during the sexual encounter. On the other hand, she also tes-
tified that she asked Appellant to wear a condom, which he agreed to do, and
that Appellant’s actions after the alleged sexual assault were strikingly in-
consistent with what she perceived would have been appropriate for someone
who had just knowingly forced her to engage in a sexual act. She said he act-
ed “normal.” Not only did his response appear inconsistent with someone who
had just committed sexual assault, her actions after the sexual encounter al-
so appeared inconsistent with someone who had just been sexually assaulted
by a recent acquaintance.
    A1C CG engaged in casual conversation with Appellant, she prepared
dinner with him, she sat down with him to eat dinner and watch a movie, and
they ended up back in Appellant’s bedroom, where she chose to sleep for the
night, in his bed, next to him. The following morning after he drove her back
to her dorm, rather than stay as far away from him for as long as possible,
she asked him to wait for her and drive her to the BX for her part-time job.
Appellant told AFOSI a couple of days later that A1C CG attempted to kiss
him, but he rebuffed her because he did not want to be seen in public kissing
her and she became angry and stormed off. AFOSI never attempted to review
the BX security camera footage to confirm Appellant’s account. A1C CG de-
nied it. However, the text messages she sent to Appellant after getting off
work at the BX seem to corroborate Appellant’s version, when she referred to
“the whole sneaking around issue.” In addition, the text messages, despite
containing A1C CG’s complaints that Appellant “just wants sex,” were com-
pletely devoid of any allegation that the “sex” was nonconsensual. On the
contrary, her concerns seemed focused on Appellant’s unwillingness to com-
mit to a serious relationship and that she was not interested in him because
she needed “someone that I can actually get to know.” She lamented that “I
don’t never see us being serious on any level due to the fact of your current


10Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 573–74 (10 Sep.
2014).




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                    United States v. Allen, No. ACM 39001


situation,” apparently responding to his comment that he was not yet over a
previous relationship. It was not until the following day, when her flight chief
asked her if she hadn’t gotten the “Allen Brief,” that A1C CG began to cate-
gorize the sexual encounter as a sexual assault.
    As an appellate court, we have not had the opportunity to personally ob-
serve A1C CG’s testimony. However, we have reviewed the same video-
recorded AFOSI interviews of A1C CG and Appellant that were played for
the court members and are in the same position as the court members to in-
dependently evaluate A1C CG’s and Appellant’s demeanor in telling the in-
vestigators their respective versions of the event. After taking a fresh, impar-
tial look at the evidence, making our own independent determination as to
whether the evidence constitutes proof of each required element of sexual as-
sault, and making allowances for not having personally observed the wit-
nesses as they testified, we are not convinced of Appellant’s guilt beyond a
reasonable doubt and thus find the evidence factually insufficient. According-
ly, we set aside the findings of guilt to Specification 1 of Charge II and to
Charge II.

                              III. CONCLUSION
   The findings of guilt to Specification 5 of Charge I, to Specification 1 of
Charge II, and to Charge II are SET ASIDE and they are DISMISSED
WITH PREJUDICE. The findings of guilt to Specifications 1, 3, and 4 of
Charge I are correct in law and fact, and are AFFIRMED. The sentence is
SET ASIDE. A rehearing on sentence is authorized. Article 66(c), UCMJ 10
U.S.C. § 866.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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