   United States Navy-Marine Corps
       Court of Criminal Appeals
                    _________________________

                      UNITED STATES
                         Appellant

                               v.

                   Antonio OLIVARES
  Sonar Technician (Surface) Second Class Petty Officer (E-5),
                          U.S. Navy
                          Appellee

                        No. 201800125

     Appeal by the United States pursuant to Article 62, UCMJ
         Argued 24 January 2019—Decided 7 March 2019
                       Military Judge:
             Commander Jason L. Jones, JAGC, USN.
Arraignment: 5 April 2018 by a general court-martial convened at
Naval Station Mayport, Florida.
                         For Appellant:
         Lieutenant Kimberly Rios, JAGC, USN (on brief);
            Captain Brian L. Farrell, USMC (argued).
                          For Appellee:
          Major Maryann N. McGuire, USMC (argued);
         Lieutenant Jordi I. Torres JAGC, USN (on brief).
                    _________________________

    This opinion does not serve as binding precedent, but
         may be cited as persuasive authority under
          NMCCA Rule of Appellate Procedure 30.2.
                    _________________________

       Before WOODARD, HUTCHISON, FULTON, TANG,
           LAWRENCE, CRISFIELD, and HITESMAN,
                 Appellate Military Judges,
                     Sitting En Banc.
                       United States v. Olivares, No. 201800125


PER CURIAM
    This is an interlocutory appeal taken by the government under Article 62,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2016). Following a
pretrial hearing, the military judge dismissed the sole specification of Charge
I, alleging violation of a lawful general order, specifically U.S. Navy Regula-
tions, Article 1166. The government contends the military judge erred as a
matter of law by finding that Article 1166 is not punitive and is void for
vagueness as applied to the appellee.
   After considering the record of proceedings and the parties’ pleadings, we
conclude that we have jurisdiction to decide this appeal. We further conclude
that Article 1166 may serve as the basis for an alleged violation of Article 92,
UCMJ, and that the appellee’s alleged conduct is clearly proscribed by the
regulation. We therefore set aside the military judge’s ruling.

                                  I. BACKGROUND

    The appellee is charged at a general court-martial with one specification
of violating a lawful general regulation, three specifications of sexual assault,
two specifications of indecent exposure, and one specification of assault con-
summated by a battery, in violation of Articles 92, 120, 120c, and 128, UCMJ.
The sole specification under Charge I alleges that the appellee violated Arti-
cle 1166, United States Navy Regulations (1990), which prohibits sexual har-
assment, “by wrongfully saying to [PO2 K.B.] ‘let me see that ass,’ or words to
that effect, and by wrongfully kissing her and touching her buttocks.” 1 The
acts are alleged to have happened aboard USS ROOSEVELT (DDG 80). Fol-
lowing arraignment and entry of pleas, the appellee moved to dismiss the sole
specification of Charge I. The military judge granted the motion and the gov-
ernment timely appealed. Only Charge I and its sole specification are at issue
in this appeal.

                                  II. DISCUSSION

A. Scope and Standard of Review
   In reviewing this government interlocutory appeal, we may act only with
respect to matters of law. Art. 62(b), UCMJ; RULE FOR COURTS-MARTIAL
(R.C.M.) 908(c)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)
(MCM). We are “bound by the military judge’s factual determinations unless



   1   Charge sheet.



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                   United States v. Olivares, No. 201800125


they are unsupported by the record or clearly erroneous.” United States v.
Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).

B. Jurisdiction
    As a preliminary matter, the appellee argues that we lack jurisdiction to
hear this appeal because the record includes no evidence the Director, Appel-
late Government Division, authorized or directed the trial counsel to file the
9 April 2018 Notice of Appeal with the military judge. The appellee cites no
authority, and we have found none, that supports his assertion that the gov-
ernment’s failure to include evidence that the Director, Appellate Govern-
ment Division, authorized or directed the trial counsel to file the Notice of
Appeal with the military judge deprives this court of jurisdiction over this
appeal under Article 62, UCMJ. We have jurisdiction over appeals by the
United States in cases in which a punitive discharge may be adjudged and in
which a military judge enters an order terminating the proceedings with re-
spect to a charge or specification. Art. 62 (a)(1)(A), UCMJ. Here, the military
judge dismissed Charge I and the sole specification thereunder, terminating
the proceedings with respect to that charge and specification. The govern-
ment then properly provided notice of its intent to appeal, and filed its ap-
peal. Accordingly, we have jurisdiction. Id.; R.C.M. 908(a).

C. The Military Judge’s Conclusion That Article 1166 Is Not Punitive
    The government alleges that the military judge erred by finding that Ar-
ticle 1166, U.S. Navy Regulations (1990), is not punitive. We agree.
    Not all provisions found in regulations can be enforced under UCMJ Arti-
cle 92(1), which makes punishable the failure to obey a lawful general order
or regulation. MCM Part IV, ¶ 16c(1)(e). Regulations that supply only general
guidelines or advice for conducting military functions may not be enforceable
under Article 92(1). Id. The question of whether an order or regulation may
serve as the basis for a prosecution under Article 92(1), UCMJ, is a question
of law that we review de novo. United States v. New, 55 M.J. 95, 106
(C.A.A.F. 2001).
    To determine whether a regulation is punitive we examine it in its entire-
ty. No single factor is controlling. United States v. Nardell, 45 C.M.R. 101,
103 (C.M.A. 1972). We assess whether the questioned regulation, by its own
terms, “regulate[s] conduct of individual members and that its direct applica-
tion of sanctions for its violation is self-evident.” United States v. Blanchard,
19 M.J. 196, 197 (C.M.A. 1985) (citations omitted). “If the order requires im-
plementation by subordinate commanders to give it effect as a code of con-
duct, it will not qualify as a general order for the purpose of an Article 92
prosecution.” Id. We also consider whether the drafter of a regulation has
made clear in the text of the regulation that “individuals would be criminally

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                   United States v. Olivares, No. 201800125


liable for conduct . . . inimical to the stated departmental policy.” United
States v. Daniel, 42 M.J. 802, 804 (N-M. Ct. Crim. App. 1995).
    By its own terms, the regulation applies directly to the appellee. Article
1166 states that “Sexual harassment is prohibited” and that “No individual in
the Department of the Navy shall . . . commit sexual harassment.” The appel-
lee, an active-duty Sailor, is an individual in the Department of the Navy.
The regulation in question does not simply state general policy regarding
sexual harassment and leave to subordinate commanders the task of imple-
menting the policy. Rather, it is on its face applicable to the appellee person-
ally.
    We note that the text of Article 1166 does not specifically state that its vi-
olation subjects a service member to punishment under Article 92, UCMJ.
But none of the U.S. Navy Regulations contain this language. This court has,
nevertheless, found that the failure to obey a regulation can be punishable
under Article 92, UCMJ, where the applicability of a specific article of the
regulation to the individual is apparent. In United States v. Jackson, we held
that violation of Article 1165 of the Navy Regulations prohibiting fraterniza-
tion was a punitive order despite the absence of language in that article spe-
cifically stating so. 61 M.J. 731, 734 (N-M. Ct. Crim. App. 2005). We exam-
ined Article 1165 and noted that it prohibits personal relationships between
enlisted members that are unduly familiar when such relationships are prej-
udicial to good order and discipline or of a nature to bring discredit upon the
naval service. Id. Because this prohibition applied to that appellant without
requiring further implementation, we found that article punitive—even
though it contained no language specifically informing the reader that the
failure to obey it is punishable under Article 92, UCMJ. Id.; but see United
States v. Scott, 22 C.M.A. 25, 29 (C.M.A. 1972).
    The best argument that Article 1166 requires further implementation and
is therefore not punitive holds that sexual harassment is so indefinite a con-
cept that subordinate orders are necessary to give the prohibition meaning.
The appellee argues separately that the regulation is void for vagueness. But
the purported vagueness of the regulation matters to the question of whether
the order is punitive as well. An order or regulation that “requires implemen-
tation by subordinate commanders to give it effect as a code of conduct, it will
not qualify as a general order for the purpose of an Article 92 prosecution.”
Nardell, at 103. The appellee argues that sexual harassment is so indefinite
a term that the regulation requires further implementation in order to be
comprehensible as a code of conduct. Therefore, according to the appellee, the
regulation is not punitive.
  Sexual harassment is not defined in Article 1166 itself. But this does not
mean that the regulation cannot be understood to be punitive in nature. We


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                   United States v. Olivares, No. 201800125


find that the term sexual harassment is not so indefinite that the regulation
cannot serve as a code of conduct without further implementation.
    Sexual harassment has been proscribed in the Department of Defense and
the Department of the Navy for many years. When the Secretary of the Navy
proscribed sexual harassment in Article 1166, he was not writing on a blank
slate. In 1988, the Department of Defense had already defined sexual har-
assment as:
          A form of sex discrimination that involves unwelcome sexu-
       al advances, requests for sexual favors, and other verbal or
       physical conduct of a sexual nature when:
               a. Submission to such conduct is made either explicitly
       or implicitly a term or condition of a person’s job, pay, or ca-
       reer, or
              b. Submission to or rejection of such conduct by a person
       is used as a basis for career or employment decisions affecting
       that person, or
              c. Such conduct has the purpose or effect of unreasona-
       bly interfering with an individual’s performance or creates an
       intimidating, hostile, or offensive environment.
           Any person in a supervisory or command position who uses
       or condones any implicit or explicit sexual behavior to control,
       influence, or affect the career, pay, or job of a military member
       or civilian employee is engaging in sexual harassment. Similar-
       ly, any military member or civilian employee who makes delib-
       erate or repeated unwelcome verbal comments, gestures, or
       physical contact of a sexual nature is also engaging in sexual
       harassment. 2
    In 1989, Secretary H. Lawrence Garrett (the Secretary who promulgated
Article 1166) defined sexual harassment using identical language. 3 The defi-
nition of sexual harassment has changed little in either the relevant DoD Di-




   2 Department of Defense Directive 1350.2 (23 Dec 1988) (canceled by Department
of Defense Directive 1350.2 (18 Aug 1995)).
   3 Secretary of the Navy Instruction (SECNAVINST) 5300.26A (2 Aug 1989) (re-
placed by SECNAVINST 5300.26B (6 Jan 1993).



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                      United States v. Olivares, No. 201800125


rectives or Secretary of the Navy Instructions since. 4 The Secretary of the
Navy has clarified that sexual harassment takes place in the expansively un-
derstood workplace,. 5 But this clarification does not dramatically alter how
one understands sexual harassment. Both the Department of Defense’s and
the Department of the Navy’s definitions, in turn, are very similar to the def-
inition promulgated in 1980 by the Equal Employment Opportunity Commis-
sion when it determined that sexual harassment violated federal laws
against sex discrimination:
            A form of sex discrimination that involves unwelcome sexu-
         al advances, requests for sexual favors, and other verbal or
         physical conduct of a sexual nature when:
                 a. Submission to such conduct is made explicitly or im-
         plicitly a term or condition of a person’s job, pay, or career, or
                b. Submission to or rejection of such conduct by a person
         is used as a basis for career or employment decisions affecting
         that person, or
                 c. Such conduct has the purpose or effect of unreasona-
         bly interfering with an individual’s work performance or cre-
         ates an intimidating, hostile, or offensive working environ-
         ment. 6
    We find that the term sexual harassment is sufficiently precise as to be
capable of serving as a code of behavior that service members can be expected
to follow. Our consideration of Article 1166 in its entirety, considering all of
the relevant factors, leads us to conclude that Article 1166 directly regulates
the conduct of members of the Department of the Navy, and that it does not
require implementation by subordinate commanders in order to have effect as
a code of conduct. We find, therefore, that the military judge erred by deter-
mining that Article 1166 is not a punitive general regulation.

D. Whether Article 1166 is Unconstitutionally Vague
   The military judge also found that Article 1166 was unconstitutionally
vague. We disagree.



   4  See Department of Defense Instruction 1020.03 (8 Feb 2018); SECNAVINST
5300.26D (encl. 1) (3 Jan 2006) (“’Workplace’ is an expansive term for military mem-
bers and may include conduct on or off duty, 24 hours a day.”).
   5   See SECNAVINST 5300.26D (encl. 1) (3 Jan 2006).
   6   See 29 C.F.R. § 1604.11 (1980).



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                  United States v. Olivares, No. 201800125


    A statute or, in this case, a regulation, is unconstitutionally vague if it
does not provide a service member of ordinary intelligence fair notice of what
is prohibited, or if it is so standardless that it authorizes or encourages dis-
criminatory enforcement. See United States v. Williams, 553 U.S. 285, 304
(2008). We review vagueness determinations de novo. United States v. Solis,
75 M.J. 759, 763 (N-M. Ct. Crim. App. 2016).
    A service member must have standing to challenge a statute or regulation
as vague. Even if hypothetical fact patterns might be imagined that present
vagueness concerns under a regulation, if the appellee’s alleged conduct is
clearly proscribed, he has no standing to challenge the regulation. United
States v. McGuiness, 35 M.J. 149, 152 (C.M.A. 1992). This appellee lacks
standing. He is alleged to have told a female shipmate “let me see that ass,”
and to have kissed her and touched her buttocks without her consent while
both were aboard a Navy ship. The appellee has been given fair notice that to
the extent this conduct amounted to unwelcome sexual advances or requests
for sexual favors, or verbal or physical conduct of a sexual nature that unrea-
sonably interferes with an individual’s performance or creates an intimidat-
ing, hostile, or offensive work environment, such conduct was proscribed by
the regulation.
    We leave to the trier of fact the questions of whether the appellee commit-
ted the acts alleged, and whether they constitute sexual harassment. But
these questions go to whether the appellee did in fact commit sexual harass-
ment in violation of the regulation. They do not cast doubt on whether the
regulation prohibits sexual harassment with sufficient clarity that the appel-
lee could have understood that the alleged conduct was proscribed. See Unit-
ed States v. Williams, 553 U.S. 285, 307 (2008) (“Close cases can be imagined
under virtually any statute. The problem that poses is addressed, not by the
doctrine of vagueness, but by the requirement of proof beyond a reasonable
doubt.”).
    We find that the appellee does not have standing to complain that the Ar-
ticle 1166 is vague.




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                   United States v. Olivares, No. 201800125


                              III. CONCLUSION

   The government appeal under Article 62, UCMJ is GRANTED. The mili-
tary judge’s ruling granting the motion to dismiss is SET ASIDE. The stay of
proceedings is lifted. The record will be returned to the military judge for fur-
ther proceedings consistent with this opinion.

                                 FOR THE COURT:




                                 RODGER A. DREW, JR.
                                 Clerk of Court




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