                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

  Darrell R. Stirewalt, Health Services Technician Second Class
                   U.S. Coast Guard, Appellant

                               No. 03-0433

                           Crim. App. No. 1098


       United States Court of Appeals for the Armed Forces

                         Argued April 27, 2004

                      Decided September 29, 2004

ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
separate opinion concurring in part and in the result.

                                  Counsel

For Appellant: Lieutenant Commander Nancy J. Truax (argued);
Lieutenant Laurina M. Spolidoro.

For Appellee: Lieutenant Sandra J. Miracle (argued); Lieutenant
Commander John S. Luce Jr.

Military Judge:    W. J. Dunaway

  This opinion is subject to editorial correction before final publication.
United States v. Stirewalt, 03-0433/CG


     Judge ERDMANN delivered the opinion of the Court.

     Health Services Technician Second Class (E-5) Darrell

Stirewalt was convicted of a number of offenses involving his

female shipmates.    Before this Court Stirewalt argues that his

prosecution was tainted with unlawful command influence, that

the investigating officer had an impermissible conflict of

interest and that his conviction for sodomy violated the Fifth

Amendment.    We affirm the decision of the Coast Guard Court of

Criminal Appeals.

                         PROCEDURAL BACKGROUND

     As this case has a long and complex procedural history, a

brief review of that procedure is helpful in providing a

contextual basis for this decision.

     A.      The Initial Trial

     Stirewalt was originally tried by a general court-martial

and was convicted of four specifications of maltreatment by

sexual harassment, one specification of rape, one specification

of forcible sodomy, three specifications of assault consummated

by a battery, four specifications of adultery and four

specifications of indecent assault.      Prior to sentencing, the

military judge dismissed two specifications of maltreatment, two

specifications of assault consummated by a battery and one

specification of adultery.       The members sentenced Stirewalt to a

dishonorable discharge, ten years’ confinement, forfeiture of


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United States v. Stirewalt, 03-0433/CG


all pay and allowances and reduction to the lowest enlisted

grade.

     B.      The Initial Court of Criminal Appeals Appeal

     Stirewalt’s conviction and sentence were reviewed by the

Coast Guard Court of Criminal Appeals under Article 66(c),

Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 866(c)

(2000).   The Court of Criminal Appeals found that the military

judge had erred in excluding certain testimony under the "rape

shield" provisions of Military Rule of Evidence 412.      See United

States v. Stirewalt, 53 M.J. 582 (C.G. Ct. Crim. App. 2000).      As

a result of that ruling, the court set aside the guilty findings

for the offenses involving Stirewalt's female department head,

which included rape, forcible sodomy, assault and battery and

indecent assault.    The court affirmed the remaining guilty

findings but set aside the sentence and authorized a rehearing.

     C.      The Rehearing -- Motion to Dismiss

     The case was returned to the convening authority for a

rehearing on sentence and, if practicable, a rehearing on the

charges that had been set aside.       The convening authority

ultimately referred all of the charges that the Court of

Criminal Appeals had set aside to a general court-martial for

rehearing.

     Based on evidence discovered after his first trial,

Stirewalt moved to dismiss all of the charges referred for


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United States v. Stirewalt, 03-0433/CG


retrial on the grounds of unlawful command influence.    Stirewalt

contended that (1) the original decision to request an

investigation of the charges pursuant to Article 32, UCMJ, 10

U.S.C. § 832 (2000) was tainted by unlawful command influence;

(2) witnesses had been discouraged from coming forward on his

behalf; (3) actions of the command had tainted the member pool;

and (4) the Article 32 investigating officer lacked independence

and later improperly acted as the staff judge advocate in

providing advice on the case.

     Although the military judge denied Stirewalt's motion to

dismiss, he did order several remedial measures that he

characterized as "necessary to ensure that the accused receives

a fair trial and to restore the public confidence in the present

case."   The military judge found no unlawful command influence

in terms of the initial referral of the charges or any "taint"

of the member pool, but he did conclude that the Government had

failed to demonstrate beyond a reasonable doubt that improper

interference with witnesses had not occurred.   He also found

that the Article 32 investigating officer "was not aggressive

enough in his attempts to shield himself from subsequent action

on the same case that he served as the [investigating officer]."

     In light of those conclusions the military judge ordered

that certain steps be taken to ensure full access to witnesses

by the defense and that the convening authority designate a new


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United States v. Stirewalt, 03-0433/CG


place of trial.   He also ordered that the Article 32

investigating officer take no further steps with regard to the

case and remove himself from the rating chain of the assistant

trial counsel.

     D.    Interlocutory Request for Extraordinary Relief

     In response to the military judge's ruling, Stirewalt filed

a petition for a writ of mandamus with the Court of Criminal

Appeals.   He asked the court for an order either directing the

convening authority to withdraw and dismiss the charges on

grounds of unlawful command influence or, alternatively,

disqualifying the convening authority and appointing a

substitute convening authority.    The Court of Criminal Appeals

denied Stirewalt's petition and "approve[d] the military judge's

findings, his denial of the motion below, and the actions

ordered by him to facilitate a fair rehearing and to restore

public confidence in the case."    See Stirewalt v. Pluta, 54 M.J.

925, 927 (C.G. Ct. Crim. App. 2001).

     E.    Rehearing and Disposition

     The matter was returned for rehearing and Stirewalt elected

a trial by military judge alone.       In accordance with the terms

of a pretrial agreement, Stirewalt pleaded guilty in March 2001

to one specification of sodomy under Article 125, UCMJ, 10

U.S.C. § 925 (2000).   Pursuant to the pretrial agreement, the




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United States v. Stirewalt, 03-0433/CG


Government dismissed with prejudice the rape, forcible sodomy,

assault and indecent assault charges.

     At that point, Stirewalt stood convicted of sexual

harassment, adultery and indecent assault from his first trial

and of sodomy from the rehearing.     The military judge sentenced

Stirewalt to 90 days’ confinement, reduction in pay grade to E-

4, and a reprimand.   The convening authority approved the

sentence.

     F.     Second Court of Criminal Appeals Decision

     The Court of Criminal Appeals again reviewed the matter

under Article 66(c), UCMJ.   Stirewalt raised seven assignments

of error, six of which the court viewed as having already been

addressed and disposed of in its earlier decisions in the case.

See United States v. Stirewalt, 58 M.J. 552, 554 (C.G. Ct. Crim.

App. 2003).   The only "new" assignment of error involved a

request by Stirewalt that credit for his "excess" confinement be

applied against his adjudged reduction in rank.    That claim was

rejected on the basis of our decisions in United States v.

Rosendahl, 53 M.J. 344 (C.A.A.F. 2000) and United States v.

Josey, 58 M.J. 105 (C.A.A.F. 2003).

     Stirewalt then petitioned this Court for review of his case

under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000).    His

defense counsel assigned six errors and he individually asserted




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United States v. Stirewalt, 03-0433/CG


seven errors pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982).   We granted review of the following issues:

     I.   WHETHER A SUBORDINATE COMMANDER CAN BE SAID TO HAVE
     EXERCISED INDEPENDENT JUDGMENT WHEN THE COMMANDER'S THIRD
     LEVEL SUPERVISOR "FORCEFULLY" ADVISED THE COMMANDER THAT
     APPELLANT'S CHARGES WERE "TOO SERIOUS" TO BE HANDLED AT NJP
     OR SPECIAL COURT-MARTIAL AND "NEEDED TO BE HEARD . . . BY
     AN UNLIMITED TRIBUNAL."

     II. WHETHER APPELLANT WAS PREJUDICED WHEN THE
     INVESTIGATING OFFICER VIOLATED UCMJ ARTICLE 6(c) AND R.C.M.
     405(d)(1) BY PROVIDING EX PARTE ADVICE TO BOTH THE
     CONVENING AUTHORITY AND THE STAFF JUDGE ADVOCATE UPON
     REMAND FROM THE LOWER COURT.

     III. WHETHER APPELLANT'S CONVICTION FOR ADULT, CONSENSUAL
     SODOMY VIOLATES HIS VITAL INTEREST IN LIBERTY AND PRIVACY
     PROTECTED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

     We find that Stirewalt’s commander exercised independent

discretion in requesting an Article 32 investigation, that

Stirewalt was not prejudiced by the subsequent involvement of

the investigating officer in his case and that his conviction of

sodomy did not infringe on his liberty interest under the Due

Process Clause of the Fifth Amendment.

                            DISCUSSION

     A.   The Initial Investigation and Referral of Charges

     Stirewalt served as the health services technician on the

USCGS SWEETGUM, a Coast Guard cutter under the command of

Lieutenant Commander Crawley.   Stirewalt argues that Lieutenant

Commander Crawley's decision to request an Article 32

investigation of the allegations and his subsequent decision to



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United States v. Stirewalt, 03-0433/CG


recommend referral of the charges to a general court-martial

were improperly influenced by the Chief of Staff for the Eighth

Coast Guard District, Captain Prokop.

        This contention was one of several claims of unlawful

command influence that were litigated before the military judge

at the rehearing and was addressed in the judge’s "Essential

Findings of Fact and Conclusions of Law."    Where the issue of

unlawful command influence has been litigated on the record, we

review the military judge's findings of fact under a clearly

erroneous standard.    United States v. Johnson, 54 M.J. 32, 34

(C.A.A.F. 2000).    The question of command influence flowing from

those facts, however, is a question of law that we review de

novo.    Id.

        The military judge found that the initial allegations of

misconduct against Stirewalt were brought forward by three

crewmembers.    Upon learning of the allegations, Lieutenant

Commander Crawley notified the Coast Guard Investigative Service

(CGIS).    An agent from CGIS was dispatched to the SWEETGUM

within a day and had briefed Lieutenant Commander Crawley with

his preliminary results within the week.    Lieutenant Commander

Crawley then contacted Captain Bohner, his immediate supervisor,

who in turn contacted his supervisor, Captain Gerfin, the Eighth

District Chief of Operations.    These two officers ultimately




                                   8
United States v. Stirewalt, 03-0433/CG


briefed Captain Prokop, the Eighth Coast Guard District Chief of

Staff.

     The military judge found that all four officers then

participated in two telephone conferences concerning the

allegations against Stirewalt.   Lieutenant Commander Crawley

told the other officers that he had informed CGIS of the

allegations, that an investigation was ongoing and that he was

considering his options for handling the situation.

     The military judge found that Captain Prokop "very clearly

and forcefully made his opinion known during the phone calls

that the allegations were too serious to go to captain's mast

and that they warranted an airing at an Article 32."    He also

found, however, that Captain Gerfin made it clear to Lieutenant

Commander Crawley that the decision as to the disposition of the

case was his to make.

     The factual basis for Stirewalt's claim is the military

judge's finding that Captain Prokop "very clearly and

forcefully" expressed his opinion concerning the seriousness of

the charges and the need for an Article 32 investigation.    As

recognized by the military judge, the legal significance of that

statement must be assessed against the broader context in which

it occurred.

     The statement was made during discussions that were

initiated by Lieutenant Commander Crawley, the subordinate


                                 9
United States v. Stirewalt, 03-0433/CG


commander.    There is nothing inherently suspect about an officer

in Lieutenant Commander Crawley's position electing to consult

with his chain of command concerning potential investigative and

procedural options when faced with allegations of serious

misconduct.   Without Captain Prokop's statement, Crawley’s

actions would not have been considered irregular.

     Neither Lieutenant Commander Crawley nor Captain Prokop had

any specific recollection of the telephone conversation at

issue.    The only clear recollection of either the phone

conversation or Captain Prokop’s comment came from Captain

Gerfin, an intermediate commander, who knew both Crawley and

Prokop.   Captain Gerfin did not view Captain Prokop’s statement

as constituting any constraint on Lieutenant Commander Crawley’s

discretion and testified that Crawley was “obviously” the

decision maker in regard to the necessity of an Article 32

investigation.

     The military judge recognized that Captain Prokop's

statement, "viewed in a void" could be seen as unlawful command

influence.    That void was filled, however, with extensive fact-

finding regarding the context in which it was made and a

thorough legal analysis which resulted in the military judge’s

findings and conclusions that unlawful command influence had not

occurred.    We do not view the military judge's findings of fact

on this issue as "clearly erroneous," nor do we view those facts


                                 10
United States v. Stirewalt, 03-0433/CG


as supporting a de novo conclusion on our part that unlawful

command influence flowed from those facts.    Johnson, 54 M.J. at

34.

        B.   The Role of the Investigating Officer

        Stirewalt asserts that he was prejudiced by the subsequent

involvement of the original investigating officer in his court-

martial rehearing process.    As with the first issue, this claim

was litigated before the military judge at the rehearing and was

addressed in his "Essential Findings of Fact and Conclusions of

Law."

        The facts underlying this claim are not disputed.   After

Lieutenant Commander Crawley decided to proceed with an Article

32 investigation, the Eighth Coast Guard District identified

Commander Baumgartner as a prospective investigating officer.

Commander Baumgartner did not serve in the Eighth District and,

once identified, was properly appointed by Lieutenant Commander

Crawley.     He subsequently presided over the Article 32 hearing

process, completed a report of the investigation and forwarded

it to Lieutenant Commander Crawley with a recommendation that

the matter proceed to a general court-martial.

        Unfortunately that was not the end of Commander

Baumgartner's involvement in Stirewalt's court-martial.     He was

subsequently transferred to the Eighth District legal office

and was serving as the acting staff judge advocate (SJA) when


                                  11
United States v. Stirewalt, 03-0433/CG


the Coast Guard Court of Criminal Appeals issued its initial

decision reversing portions of Stirewalt’s original conviction.

     The military judge made the following findings of fact

concerning the nature of Commander Baumgartner’s subsequent

involvement in Stirewalt's case:

     •    He attended and participated in a meeting with the

          Commander of the Eighth District where decisions were

          made concerning the case.   He was present at the

          meeting because he, as the Article 32 investigating

          officer, knew the facts of the case.

     •    He was the acting SJA when asked to provide an opinion

          on whether the SJA should appeal the decision to CAAF.

     •    Several e-mails sent to and from Commander Baumgartner

          indicate that he served as the Eighth District legal

          office's point of contact for Stirewalt's case.

     •    He routinely held himself out as part of the Eighth

          District legal team in matters pertaining to

          Stirewalt's case by using the word "we."

     •    He supervised the assistant trial counsel and the law

          clerk who worked on Stirewalt's case.

     •    He had been responsible for some of the logistics in

          Stirewalt's case, including budget, assignment of

          counsel and docketing matters.




                               12
United States v. Stirewalt, 03-0433/CG


     •    He shared advice and information about the Stirewalt

          case with the senior legal officer at the Eighth

          District.

     The military judge ultimately determined that "Commander

Baumgartner was not aggressive enough in his attempts to shield

himself from subsequent action on the same case that he served

as the IO."    He went on to order that Commander Baumgartner take

no further action regarding the case and that he remove himself

from the rating chain for the assistant trial counsel.

     While the Court of Criminal Appeals recognized that

Commander Baumgartner's actions "may constitute a departure from

the requirements of Article 6(c), UCMJ, and [Rule for Courts-

Martial 405 [R.C.M.]]," it found no prejudicial error.    Based on

the record before us, we agree with the Court of Criminal

Appeals that Stirewalt has not established that he was

prejudiced by the subsequent involvement of Commander

Baumgartner.

     There is no question that Commander Baumgartner's actions

violated R.C.M. 405(d)(1).   That rule unambiguously states that

"[an] investigating officer is disqualified to act later in the

same case in any other capacity."     A violation of R.C.M.

405(d)(1), however, must be measured for prejudice and since

Stirewalt has not established that he was prejudiced, he cannot

prevail on this issue.   United States v. Holt, 52 M.J. 173, 183-


                                 13
United States v. Stirewalt, 03-0433/CG


84 (C.A.A.F. 1999)(actions of investigating officer inconsistent

with R.C.M. 405(d)(1) measured for prejudice).

     The question as to whether Commander Baumgartner's actions

violated Article 6(c), UCMJ, is not quite as clear.    That

provision states that no person who acts as a member, judge,

counsel or investigating officer "may later act as a staff judge

advocate or legal officer to any reviewing authority upon the

same case."   Id.   Stirewalt goes on to argue that prejudice can

be "presumed" in the case of an Article 6(c) violation and

relies on several older decisions from this Court.    See, e.g.,

United States v. Jolliff, 22 C.M.A. 95, 46 C.M.R. 95

(1973)(Article 32 investigating officer involved in preparing

post-trial advice); United States v. Coulter, 3 C.M.A. 657, 659,

14 C.M.R. 75, 78 (1954)(trial counsel later serving as staff

judge advocate for post-trial review).

     In order to prevail under Article 6(c) Stirewalt must

convince us that Article 6(c) is applicable to this factual

situation and further, that where an Article 6(c) violation has

been established, prejudice can be presumed.

     As recognized by Stirewalt, this Court has not clearly

determined whether the term "reviewing authority" in Article

6(c) applies to the activities of a convening authority

throughout all stages of the court-martial process, or simply to

the latter stages of the process where the convening authority


                                 14
United States v. Stirewalt, 03-0433/CG


is engaged in "reviewing" the results of the court-martial.   In

United States v. Dodge, 13 C.M.A. 525, 527 n.1, 33 C.M.R. 57, 59

n.1 (1963) we noted that the term "reviewing authority" was used

interchangeably with the term "convening authority" and assumed,

for purposes of that case, that Article 6(c) would prohibit an

investigating officer from subsequently acting as a staff judge

advocate in preparing a pretrial advice.

     Just two weeks later, however, we characterized a similar

argument concerning the scope of the Article 6(c) prohibition as

"pure speculation."    United States v. Smith, 13 C.M.A. 553, 558,

33 C.M.R. 85, 90 (1963).   We later characterized Article 6(c) as

"on its face" applying to a staff judge advocate "acting for a

reviewing authority" and rejected an argument that its

application extended to a staff judge advocate preparing a

pretrial advice for "a referring authority."   United States v.

Hardin, 7 M.J. 399, 403 n.3 (C.M.A. 1979).

     We believe that the rationale in Hardin correctly reflects

the intent of Article 6(c).   The plain language of the provision

states that it applies to a staff judge advocate acting for a

reviewing authority.   All of the instances where we have found

violations of Article 6(c) involve subsequent actions for a

reviewing authority.   See, e.g., United States v. Edwards, 45

M.J. 114, 116 (C.A.A.F. 1996); Jolliff, 22 C.M.A. 95, 46 C.M.R.

95; United States v. Marsh, 20 C.M.A. 42, 42 C.M.R. 234 (1970);


                                 15
United States v. Stirewalt, 03-0433/CG


United States v. Crunk, 4 C.M.A. 290, 15 C.M.R. 290 (1954);

Coulter, 3 C.M.A. 657, 14 C.M.R. 75.

     When this matter was remanded, the options for the

convening authority were limited by the appellate court to

ordering a rehearing on findings and sentence, or a rehearing on

sentence alone.    53 M.J. at 592.     The convening authority did

not have the option of reassessing the sentence or any option

which would trigger the type of "reviewing authority" functions

referenced in Article 6(c).    By the very nature of the remand,

Commander Baumgartner's subsequent involvement was limited to

providing pre-trial advice rather than advice to a reviewing

authority.

     While we can envision situations where a case has been

remanded to a convening authority with no such limitations,

which may trigger the consideration of “reviewing authority”

functions, that is not the situation here.      As Commander

Baumgartner’s subsequent participation in this case did not

involve a “reviewing authority,” Article 6(c) is not applicable

to this factual situation and we need not address the issue as

to whether prejudice is presumed under Article 6(c).

     C.      Constitutionality of Sodomy Conviction

     At his rehearing, Stirewalt entered a guilty plea and was

convicted of one specification of sodomy under Article 125,

UCMJ, 10 U.S.C. § 925 (2000).    He now contends that his guilty


                                  16
United States v. Stirewalt, 03-0433/CG


plea and conviction should be set aside in light of the United

States Supreme Court's decision in Lawrence v. Texas, 539 U.S.

558 (2003).

   The specification that Stirewalt stands convicted under

originally alleged that he “did, at or near Mobile, Alabama, on

or about 8 December 1996, commit sodomy with [LTJG B], by force

and without the consent of [LTJG B].”    He entered a guilty plea

to this specification, with the words “by force and without the

consent of [LTJG B]" excepted and withdrawn.   The stipulation of

fact underlying his guilty plea indicates that

     [o]n the late evening of 07 December 1996, HS2 Stirewalt
     and [LTJG B] spoke by phone. Near midnight of that
     evening, HS2 Stirewalt proceeded to her apartment complex .
     . . . After knocking on the front door, HS2 Stirewalt was
     allowed inside by [LTJG B], who at the time of entry, was
     on the telephone with a fellow Coast Guard officer, LTJG
     Heidi Rumazza. After entering the apartment, HS2 Stirewalt
     spoke to Ms. Rumazza for approximately one minute before
     handing the telephone back to [LTJG B]. [LTJG B] then hung
     the phone up, sat down on a chair in her living room and
     began conversing with HS2 Stirewalt. After approximately
     20 minutes of conversation, [LTJG B] moved into her
     bedroom. HS2 Stirewalt followed her into her bedroom. HS2
     Stirewalt climbed into bed with [LTJG B] and the two
     engaged in "sodomy."

     We recently concluded in United States v. Marcum, 60 M.J.

198 (C.A.A.F. 2004), that constitutional challenges to Article

125 based on the Supreme Court’s decision in Lawrence must be

addressed on an as applied, case-by-case basis.   We identified a

tripartite framework for addressing Lawrence challenges within

the military context:


                               17
United States v. Stirewalt, 03-0433/CG


     First, was the conduct that the accused was found guilty of
     committing of a nature to bring it within the liberty
     interest identified by the Supreme Court? Second, did the
     conduct encompass any behavior or factors identified by the
     Supreme Court as outside the analysis in Lawrence? 539
     U.S. at 578. Third, are there additional factors relevant
     solely in the military environment that affect the nature
     and reach of the Lawrence liberty interest?

Marcum, 60 M.J. at 206-07.

     In regard to the first two prongs of this tripartite

framework, we will assume without deciding that Stirewalt’s

conduct falls within the liberty interest identified by the

Supreme Court and does not encompass behavior or factors outside

the Lawrence analysis.   Stirewalt’s conduct, however, squarely

implicates the third prong of the framework.    That question asks

whether there are “additional factors relevant solely in the

military environment,” not addressed by the Supreme Court, that

“affect the reach and nature of the Lawrence liberty interest”

in the context presented.    Id. at 207.   It is clear that such

factors exist here.

     Stirewalt’s conduct with [LTJG B] was more than a personal

consensual relationship in the privacy of an off-base apartment.

At the time of this relationship, [LTJG B] was one of seven

officers on the USCGC SWEETGUM, a cutter with a crew of only 42.

The conduct in question occurred between a commissioned

department head and her subordinate enlisted crew member:

     Romantic relationships between members are unacceptable
     when: (1) Members have a supervisor and subordinate


                                 18
United States v. Stirewalt, 03-0433/CG


       relationship . . ., or (2) Members are assigned to the same
       small shore unit (less than 60 members), or (3) Members are
       assigned to the same cutter . . . The nature of operations
       and personnel interactions on cutters and small shore units
       makes romantic relationships between members assigned to
       such units the equivalent of relationships in the chain of
       command and, therefore, unacceptable. This policy applies
       regardless of rank, grade, or position.

Coast Guard Personnel Manual, para. 8.H.2.f. (change 26, 1988)

(Unacceptable Romantic Relationships).

       “Coast Guard policy prohibits the following relationships

or conduct, regardless of rank, grade, or position of the

persons involved . . . Romantic relationships outside of

marriage between commissioned officers and enlisted personnel.”

Id. at para. 8.H.2.g. (Prohibited Relationships).

“Interpersonal relationships which raise even a perception of

unfairness undermine good leadership and military discipline.”

Id. at para. 8.H.1.c. (Leadership and Military Discipline).

       In Marcum, we noted that due to concern for military

mission accomplishment, "servicemembers, as a general matter, do

not share the same autonomy as civilians."   Marcum, 60 M.J. at

206.   We consider Stirewalt's zone of autonomy and liberty

interest in light of the established Coast Guard regulations and

the clear military interests of discipline and order that they

reflect.   Based on this analysis, we conclude that Stirewalt's

conduct fell outside any protected liberty interest recognized

in Lawrence and was appropriately regulated as a matter of



                                 19
United States v. Stirewalt, 03-0433/CG


military discipline under Article 125.   The fact that Stirewalt

as the subordinate enlisted crew member was charged does not

alter the nature of the liberty interest at stake.   As a result,

Article 125 is constitutional as applied in the present case.

                            DECISION

     The decision of the United States Coast Guard Court of

Criminal Appeals is affirmed.




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United States v. Stirewalt, No. 03-0433/CG


      CRAWFORD, Chief Judge (concurring in part and in the

result):

          I agree with the result in this case but I “would reserve

for another day the questions of whether and how Lawrence [v.

Texas, 539 U.S. 558 (2003)] applies to the military.”1      Like

United States v. Marcum, “the factual differences between

Lawrence and Appellant’s case are striking” for the reasons

mentioned by the majority as well as the circumstances

surrounding the charges themselves.2      “Unlike the petitioners in

Lawrence, who were both charged with, and convicted of,

consensual sodomy without any evidence of force,”      there was

“probable cause that Appellant committed the general offense

described in Article 125 with the added element of force,”3

notwithstanding the reversal of his first conviction.      Thus,

this is not a case where there was no evidence of force

whatsoever.       And as the majority notes, this case is one of the

exceptions to Lawrence.4



1
  60 M.J. 198, 212 (C.A.A.F. 2004)(Crawford, C.J. (dissenting on
Issue I and concurring in the result on Issue III).
2
    Id.
3
    Id. at 214.
4
   The present case does not “involve minors, it does not involve
persons who might be injured or coerced who are situated in
relationships where consent might not easily be refused.”
Lawrence, 539 U.S. at 578.
United States v. Stirewalt, No. 03-0433/CG


     If the facts and circumstances of Appellant’s case fit into

one of the enumerated Lawrence exceptions, then it only

logically follows that it is not necessary even to assume that

the Lawrence constitutional analysis applies.

     Thus, I concur in part and in the result.




                                2
