           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                           Staff Sergeant TIMOTHY M. MILLER
                                   United States Air Force

                                              ACM 38211

                                          24 February 2014

          Sentence adjudged 28 June 2012 by GCM convened at Cannon Air Force
          Base, New Mexico. Military Judge: Michael J. Coco.

          Approved Sentence: Bad-conduct discharge, confinement for 5 months,
          reduction to E-2, and a reprimand.

          Appellate Counsel for the Appellant: Captain Travis K. Ausland.

          Appellate Counsel for the United States: Colonel Don M. Christensen;
          Major John M. Simms; and Gerald R. Bruce, Esquire.

                                                  Before

                                ORR, HARNEY, and MITCHELL
                                   Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



MITCHELL, Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of dereliction of duty for willfully failing to refrain from providing
alcohol to minors and for adultery in violation of Articles 92 and 134, UCMJ,
10 U.S.C. §§ 892, 934. The court-martial sentenced him to a bad-conduct discharge,
confinement for 5 months, reduction to E-2, and a reprimand. The convening authority
approved the adjudged sentence.

      On appeal, the appellant avers two issues: (1) His conviction for dereliction of
duty for providing alcohol to “minors” is legally and factually insufficient as the
Government only proved that he provided alcohol to those over 18 years of age but under
21 years of age; and (2) His sentence is inappropriately severe. We disagree on both the
issues and affirm the findings and approved sentence.

                                               Background

       The appellant was a staff sergeant (SSgt) with over eight years of service by the
time of trial. He was assigned to the “ammo” flight of the maintenance squadron at
Cannon Air Force Base, New Mexico.             He was married to another airman,
                       1
Senior Airman (SrA) JM , who was also assigned to ammo flight.

        Airman First Class (A1C) CG2 was 18 years old when she arrived at the ammo
flight in November 2010 for her first assignment after basic training. The appellant was
her first supervisor. He knew she was only 18 years old because she was the youngest
person in ammo flight and “it was kind of a big deal.” Beginning in January 2011,
A1C CG went to the appellant’s house almost every weekend for parties and to drink
alcohol. The appellant and his wife would buy alcohol and provide it to everyone at the
party. On occasion, A1C CG and other “underage” airmen would provide the appellant
and his wife with money to buy alcohol which they would then place in their refrigerator
for everyone’s access. A1C CG, the appellant, and others would play drinking games to
include beer pong and “waterfall.” A1C CG drank alcohol in the appellant’s presence to
include beer, wine, Jagermeister, Four Loco, and other shots. On one occasion, A1C CG
became upset and grabbed a chair to hit another partygoer in order to assert herself. The
appellant stopped her by grabbing her and telling her she “wasn’t going to do that at his
house, and [she] wasn’t going to get everyone in trouble and cause a scene.” On another
occasion, after playing “waterfall,” A1C CG vomited in his bathroom and passed out due
to the amount of alcohol she consumed. Later, the appellant helped her pull her pants on
and get her out of the bathroom.

       The appellant also hosted a lingerie birthday party in honor of his wife’s birthday.
A1C CG and other members of ammo flight attended. All the attendees were in lingerie
and the men wore only boxer shorts. SrA JM suggested A1C CG and SrA SF 3 join her
and her husband for a “foursome” that resulted in A1C CG engaging in sexual intercourse
with the appellant while both SrA JM and SrA SF were in the room. SrA SF was also a
member of ammo flight who was under the legal drinking age and regularly drank
alcohol at the appellant’s home. SrA JM later arranged for a “threesome” with her, A1C
CG, and the appellant for his birthday. A1C CG again engaged in sexual intercourse with
the appellant. During this entire timeframe, the appellant and SrA JM were married.

1
  By the time of the court-martial, Senior Airman (SrA) JM had been reduced in rank to Airman, divorced the
appellant, and changed her last name. For the sake of clarity, we refer to her as SrA JM.
2
  By the time of the court-martial, Airman First Class (A1C) CG was no longer on active duty, had married, and
changed her last name. For the sake of clarity, we refer to her as A1C CG.
3
  By the time of the court-martial, SrA SF was no longer on active duty.


                                                      2                                           ACM 38211
        A1C CG’s view of the appellant as a noncommissioned officer (NCO) changed
after her sexual encounters with him. She testified, “At that point, he wasn’t
Sergeant Miller, anymore; he was just ‘Tim.’ At work I would call him Tim. I didn’t
think to call him Sergeant Miller anymore.” SrA JM testified about the sexual encounters
with A1C CG, her, and the appellant, stating “It makes everybody look bad. It reflects on
the flight. It makes it hard to work with each other knowing what happened.” She
continued, “People that knew about it – it would be really hard to respect an NCO and see
him as a role model after knowing stuff like that. It breaks down, I guess, the supervisory
role between the NCO and the airmen.” SSgt RR also testified about the effect these
events had on good order and discipline in the squadron, stating it was “horrible” and he
“noticed a chain reaction basically, that the airmen began to question NCOs whenever
they gave them an order.”

         Additional facts relevant to each section are addressed below.

                                       Factual and Legal Sufficiency

       The appellant argues his conviction for dereliction of duty by providing alcohol to
minors is factually and legally insufficient because no evidence was introduced on the
issue of “minors,” and no legal definition was provided. Therefore, “minors” must only
be defined as those under 18 years of age. We disagree.

        Around October or November 2010, the appellant received a “one-way”
conversation from his commander regarding an incident that involved a minor who drank
alcohol while attending a party at his house. The commander told him, “As an NCO, his
responsibilities are to look out for the young folks, ensure they’re doing the right thing,
and enforce standards. And in this case, not only did he not enforce standards, but – well,
he contributed to – alcohol to minors.” The commander clarified “it was [the appellant’s]
duty to not contribute to breaking the law.” The appellant answered affirmatively that he
understood his duties as an NCO.4 Additionally, the topic was addressed at commander’s
calls that there was a duty not to provide alcohol to minors.

      SSgt RR was assigned to the ammo flight and testified at the court-martial.
SSgt RR agreed there was a duty not to provide alcohol to minors, and explained, “That’s
an Air Force standard. We’re taught that from the moment we come in the Air Force.”


4
  The letter of reprimand (LOR) was admitted during sentencing proceedings. The LOR stated in part, “You did, on
5 November 2010, host a party at your private residence, in which a minor possessed and consumed alcohol.
Specifically, A1C [RM] consumed alcohol under the legal drinking age while in your private dwelling.” In the
appellant’s response, he wrote, “Underage drinking shouldn’t have occurred at my house or anywhere else for that
matter. As a Staff Sergeant, It is my responsibility to guide and influence Airman in a positive direction as they are
the future leaders of our Air Force.”


                                                          3                                              ACM 38211
SSgt RR also stated, “I think it’s important for every Air Force member that’s of legal
age to not provide alcohol to anyone under the age of 21.”

      We review issues of factual and legal sufficiency                        de    novo.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       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 reasonable doubt.”
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique
appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a
presumption of innocence nor a presumption of guilt[]” to “make [our] own independent
determination as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” Washington, 57 M.J. at 399.

       The test for legal sufficiency of the evidence is “whether, 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.” Turner, 25 M.J. at 324. “[I]n
resolving questions of legal sufficiency, 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).

        Here, we have no doubt the appellant provided alcohol to those who were under
21 years of age and otherwise unable to legally buy or consume alcohol. We agree the
military judge did not provide a definition of “minor” to the members. The military
judge appropriately instructed the members that a military duty may be imposed by
“standard operating procedure or custom of the service.” Manual for Courts-Martial,
United States, Part IV, ¶ 16.c.(3)(a) (2012 ed.); See United States v. Tanksley,
36 M.J. 428, 430 (C.M.A. 1993). Furthermore, to the extent military duties are not
clearly assigned, “common sense and military custom help fill in the gaps.”
United States v. Shelly, 19 M.J. 325, 328 (C.M.A. 1985). Evidence must be presented at
trial to prove the existence of a duty in order to satisfy the first element of an
Article 92(3), UCMJ, 10 U.S.C. § 892(3) offense. Tanksley, 36 M.J. at 430.

       This case is distinguishable from United States v. Hayes, 71 M.J. 112
(C.A.A.F. 2012) where our superior court held that a conviction for dereliction of duty
for underage consumption of alcohol was not supported by the evidence on the record
when the only evidence of a duty was state law. Here the record contains both direct and
circumstantial evidence of the existence of a military duty not to provide alcohol to
“minors” under the legal drinking age. SSgt RR specifically linked the concept of not
providing alcohol to “minors” as a duty not to provide alcohol to those under 21 years of
age. He also described it as a well-known Air Force standard. The appellant’s
commander also testified in findings that he had personally informed the appellant of his


                                            4                                    ACM 38211
duty as an NCO to not provide alcohol to minors and had emphasized that point by the
imposition of a letter of reprimand for failing in the performance of that duty. The duty
not to provide alcohol to minors was also addressed at commander’s calls. In this case,
we find there is ample evidence in the record to establish a military duty not to provide
alcohol to minors under 21 years of age.

        We are not persuaded by the appellant’s argument that the term “minor” was not
adequately defined at trial. Twice the appellant was asked if there were objections to the
instructions or requests for additional instructions, and twice the answer was “no.” Rule
for Courts-Martial (R.C.M.) 920(f) states that, absent plain error, failure to object to an
instruction or omission of an instruction at trial before the members close to deliberate
constitutes waiver of the objection. By failing to object at trial regarding an instruction to
explain or describe a “minor” in this case, the appellant waived the objection absent plain
error. See United States v. Taylor, 26 M.J. 127, 128 (C.M.A. 1988)(noting that waiver
under R.C.M. 920(f) specifically applies to instructions described in R.C.M. 920(e)(7)
which includes explanations and descriptions). To be plain error: (1) There must be an
error; (2) The error must be plain (clear or obvious); and (3) The error must affect the
substantial rights of the appellant. United States v. Powell, 49 M.J. 460, 463 (1998). We
hold there was no error, let alone plain error, and no prejudice to the appellant’s
substantial rights. We agree other offenses which use the term “minor” carry different
age limits.5 However, the evidence at this court-martial established a military duty to not
provide alcohol to those under 21 years of age. The members had this evidence before
them when deciding if the Government proved beyond a reasonable doubt that there was
a military duty to refrain from providing alcohol to “minors” and whether the appellant
violated this duty.6

       Having weighed the evidence in the record of trial, with allowances for not having
personally observed the witnesses, we are personally convinced of the appellant’s guilt
beyond a reasonable doubt of dereliction of duty for failing to refrain from providing
alcohol to “minors.” Similarly, we find a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt.

                                        Sentence Appropriateness

       This Court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the entire
record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review
sentence appropriateness de novo, United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006),

5
  With regards to child pornography, the term “minor” means any person under 18 years old. Manual for Courts-
Martial, United States, Part IV, ¶ 68b.c.(4) (2012 ed.).
6
  We also note that the appellant in his unsworn statement acknowledged, “We are Airman 24/7 and I really let the
Air Force down and I let all those [a]irmen down by allowing underage drinking in my home and modeling a
behavior that is not okay.”


                                                       5                                            ACM 38211
employing “a sweeping Congressional mandate to ensure ‘a fair and just punishment for
every accused.’” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (citations
omitted). “We assess sentence appropriateness by considering the particular appellant,
the nature and seriousness of the offense, the appellant’s record of service, and all matters
contained in the record of trial. See United States v. Bare, 63 M.J. 707, 714 (A.F. Ct.
Crim. App. 2006), aff’d United States v. Bare, 65 M.J. 35 (C.A.A.F. 2007). We have a
great deal of discretion in determining whether a particular sentence is appropriate,
United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), but we are not authorized to
engage in exercises of clemency. United States v. Healy, 26 M.J. 395, 395-96 (C.M.A.
1988).

        We have considered this appellant, the entire record of trial, the appellant’s record
of service, and the nature of the offenses. We note the appellant’s commander testified at
sentencing regarding the impact of the offenses of which the appellant had been
convicted and described them as “degrad[ing] the mental readiness of personnel,”
disrupting the mission, and disrupting the mission readiness of the personnel. The
appellant’s provision of alcohol to members of his flight who were “minors” and his
adulterous relationship with A1C CG had a demoralizing impact on his flight. There was
a breakdown of the fundamental relationship and respect that should be accorded between
junior airmen and noncommissioned officers. A1C CG was an 18-year-old airman at her
first duty station. She should have been able to rely on her first supervisor to indoctrinate
her in the customs and courtesies of the Air Force, to provide the on-the-job training in
both the technical aspects of her mission, as well as to develop her into an effective
airman. Instead the appellant abused his position of trust for his own selfish desires and
wreaked havoc on both A1C CG and his entire flight. Based on the review of the entire
record of trial, we have determined the approved sentence is appropriate.

                                                 Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.7 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000).




7
 The Court-Martial Order (CMO) contains a minor typographical error in that it states the sentence was adjudged by
“office members” vice the correct “officer members.” We have considered this clerical error and determined it is
not prejudicial; however, we order a corrected CMO. Air Force Instruction 51-201, Administration of Military
Justice, ¶ 10.10 (6 June 2013).



                                                        6                                            ACM 38211
Accordingly, the approved findings and sentence are

                                     AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           7          ACM 38211
