Petition for Writ of Certiorari — Angelo L. Cepeda, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

Decision of the Court of Appeals for the Armed

Forces (February 10, 2026) ................................. 1a

Opinion of the Air Force Court of Criminal Appeals

(July 21, 2025) ..................................................... 2a

Text of 10 U.S.C. § 892 ............................................ 57a

Text of Rule for Courts-Martial 920(e)(1) .............. 57a

Text of Rule for Courts-Martial 920(f) ................... 57a

Text of Rule for Courts-Martial 920(g)(2023) ........ 57a

Text of Department of Defense Instruction

1020.03 .............................................................. 58a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

v.

United States,

v.

Appellee

USCA Dkt. No. 26-0027/AF

Crim. App. No. 40318

Angelo L. Cepeda, ORDER DENYING PETITION

Appellant

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, it is by the Court, this 10th

day of February 2026.

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires,

Jr.

The Judge advocate General of the Air Force

Appellate Defense Counsel (Grande)

2a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

________________________

No. ACM 40318

________________________

UNITED STATES

Appellee

v.

Angelo L. CEPEDA

Technical Sergeant (E-6), U.S. Air Force,

Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary 1

Decided 21 July 2025

________________________

Military Judge : Mark F. Rosenow.

Sentence : Sentence adjudged on 8 April 2022 by

GCM convened at Minot Air Force Base, North

Dakota. Sentence entered by military judge on 26

May 2022: confinement for 60 days, reduction to

E-4, and a reprimand.

1 Appellant appeals his conviction under Article 66(b)(1)(A),

Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 866(b)(1)(A), Manual for Courts-Martial, United States

(2024 ed.) (2024 MCM).

3a

For Appellant : Captain Michael J. Bruzik, USAF;

Tami L. Mitchell, Esquire.

For Appellee : Colonel Steven R. Kaufman, USAF;

Colonel Matthew D. Talcott, USAF; Major

Vanessa Bairos, USAF; Major Regina M. B.

Henenlotter, USAF; Mary Ellen Payne, Esquire.

Before

JOHNSON,

GRUEN,

Appellate Military Judges .

and

WARREN,

Judge WARREN delivered the opinion of the

court, in which Chief Judge JOHNSON joined.

Judge GRUEN filed a dissenting opinion.

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________________________

This is an unpublished opinion and, as such, does not

serve as precedent under AFCCA Rule of Practice and

Procedure 30.4.

________________________

WARREN, Judge:

A general court-martial consisting of officer and

enlisted members convicted Appellant, contrary to his

pleas, of one specification of willful dereliction of duty

on divers occasions (sexual harassment of a

subordinate) in violation of Article 92, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 892. 2,3 The

military judge sentenced Appellant to confinement for

60 days, reduction to the grade of E-4, and a

reprimand. The convening authority denied

Appellant’s request to disapprove the findings of

guilty and took no action on the sentence.

Appellant raises five issues on appeal which we

have rephrased: (1) whether Appellant’s conviction for

dereliction of duty on divers occasion is legally and

factually sufficient, (2) whether the military judge

2 Unless otherwise noted, all references to the punitive articles

of the UCMJ are to the Manual for Courts-Martial, United States

(2016 ed.) (2016 MCM). All other references to the UCMJ and

Military Rules of Evidence (Mil. R. Evid.) are to the Manual for

Courts-Martial, United States (2019 ed.) (MCM).

3 In the same trial, members acquitted Appellant, consistent

with his pleas, of one specification of willful dereliction of duty

on divers occasions; one specification of abusive sexual contact;

two specifications of sexual assault; one specification of assault

consummated by a battery; and one specification of stalking, in

violation of Articles 92, 120, 128, and 130, UCMJ, 10 U.S.C.

§§ 892, 920, 928, and 930.

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erred by admitting as evidence Prosecution Exhibit 13

(excerpts of an expired version of Air Force Instruction

(AFI) 36-2706), (3) whether Appellant was denied

speedy post-trial processing due to the excessive delay

in the Government’s production of the record of trial,

(4) whether the verbatim transcript is legally

sufficient given it was not certified by either the

military judge or the court reporter, and (5) whether

Appellant’s conviction should be dismissed for

violating his right to speedy appellate review

attributable to the delay between sentencing at trial

and docketing Appellant’s case on appeal. 4 In light of

the fact that more than 18 months have elapsed from

the time Appellant’s case was docketed with this court

until the issuance of this opinion, we have identified

and will address a sixth issue: (6) whether Appellant

is entitled to relief for unreasonable appellate delay

between docketing and decision.

We have carefully considered issue (4) and find no

discussion or relief is warranted. See United States v.

Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021) (citing United

States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987)).

Finding no error that materially prejudiced a

substantial right of Appellant in any of the remaining

assignments of error, we affirm the findings and

sentence.

I. BACKGROUND

The primary evidentiary issue in this case centers

upon whether the Government offered sufficient proof

of a non-controversial fact: namely, that every Airman

in the Air Force has a duty to abstain from sexual

4 Appellant personally raises issues (4) and (5) pursuant to

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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harassment of fellow Airmen in the workplace. While

that duty is readily ascertainable as a matter of

statute and service regulation, the issue here concerns

whether the Government proved the existence of a

duty to refrain from engaging in sexual harassment

when they chose to rely upon proof of a military

custom as the source of that duty.

The charges in this case stem from Appellant’s

conduct with two female Airmen. All parties were

members in the same maintenance squadron at Minot

Air Force Base (AFB), North Dakota. Appellant’s sole

conviction pertains to the conduct towards one of

those Airmen, JJ, and this opinion will focus on the

sexual harassment towards her. Specifically, JJ, a

junior enlisted Airman during the relevant

timeframe, alleged that Appellant, a technical

sergeant (TSgt) and Expediter, 5 engaged in sexual

harassment against her by creating a hostile work

environment predicated on pervasive sexualized

comments concerning her.

Appellant made sexual comments towards JJ

approximately once a week between August and

December 2018 in their workplace during the duty

day. Those comments included Appellant commenting

on JJ’s body and appearance in a sexualized manner,

with words to the effect that, inter alia, JJ’s “a[**]

looks good” and that her breasts “looked good in

uniform.” In addition, Appellant repeatedly asked JJ

about her sex life with her boyfriend and fellow junior

Airman, GS. Appellant coupled these illicit inquiries

with boasts that he could “f[**]k [her] better than

5 Witnesses testified that an “Expediter” is effectively the

noncommissioned officer in charge (NCOIC) of the junior Airmen

while on shift in the weapons maintenance shop.

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[her] boyfriend.” JJ did not speak to Appellant about

these comments because she felt it was not her “place”

due to his position as her noncommissioned officer

(NCO). JJ feared speaking out would “be considered

disrespecting an NCO.” Nonetheless, Appellant’s

repeated comments were unwanted and made JJ feel

“very uncomfortable” and “disrespected. . . because

nobody wants to hear that.” With respect to her

knowledge of how sexual harassment is regarded in

the military, JJ stated, “[T]hey integrate in our minds

that sexual assault and sexual harassment is a zerotolerance thing.”

Appellant’s verbal advances were then punctuated

by a physical sexual advance whereby he put his hand

on her thigh and tried to kiss her while they were in a

three-person vehicle on the flight line in the

September/October 2018 timeframe. JJ testified she

told Appellant she was uncomfortable, said “no,” and

leaned away to prevent Appellant’s lips from touching

her face. Appellant then apologized, but after

apologizing, he touched JJ’s thigh again. JJ was

scared, but did not exit the vehicle nor return to her

duty section on foot because it was nighttime, and

Appellant had driven them some distance from her

assigned hangar. Nonetheless, when Appellant

eventually drove them back to their duty section, JJ’s

co-worker JM observed JJ looking “upset” and

“stressed.” When JM asked JJ why she was so upset,

JJ told JM Appellant tried to kiss her. JJ then cried

and said she did not want to go back to work.

JJ’s boyfriend, GS, corroborated Appellant’s sexual

interest in JJ. He testified that in workplace

conversations with Appellant, Appellant would refer

to JJ as “our girl.” GS also verified that JJ reported to

him that Appellant recurrently tried to “flirt with her

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in the car [i.e., the work vehicle Appellant used to

make maintenance ‘runs’ with JJ]” and that Appellant

had tried to kiss JJ. Finally, Appellant himself

apologized to GS for “trying to get at [JJ] when [GS]

was with her.”

To prove the existence of the “duty” to avoid sexual

harassment in the Air Force, the Government chose to

introduce: (1) testimony of Master Sergeant (MSgt)

ML as to Appellant’s knowledge of the prohibition

against sexual harassment in the Air Force; and (2) a

then-expired version of Air Force Instruction (AFI) 362706, Equal Opportunity Program Military and

Civilian, at 1–3 and 11–12 (5 Oct. 2010), 6 defining and

prohibiting sexual harassment in the Air Force. These

five pages from the AFI make up what was admitted

as Prosecution Exhibit 13.

MSgt ML was Appellant’s flight chief during the

charged timeframe, and she generally managed

personnel and operations within the weapons

maintenance section. She testified as to Appellant’s

training and experience which would have informed

him to refrain from sexual harassment. She testified

that Appellant was an “Expediter” for the squadron’s

mid shift (typically scheduled from 2300 to 0700 or

0800 hours). When Appellant was an Expediter on

mid shifts, he was in charge of junior enlisted Airmen

on the same shift, to include JJ. Normally there was

no senior leadership on mid shifts—technical

sergeants were generally the highest-ranking Airmen

on shift. MSgt ML further explained that as an

6 We take judicial notice of domestic law that this Air Force

Instruction (AFI) 36-2706 was superseded by Department of the

Air Force (DAFI) 36-2710, Equal Opportunity Program (18 Jun.

2020). See Mil. R. Evid. 202(a).

9a

Expediter, Appellant would have gone through annual

expediter training, supervisory training, upgrade

training, and task certification training—all of which

would have notified Appellant of the prohibition

against sexual harassment. It was her opinion that

due to those trainings, Appellant would have known

“he was not to sexually harass junior enlisted

Airmen.” She further testified that about 10 to 11

years ago there was a culture shift in the Air Force

that made “locker room talk” no longer acceptable and

that it would be unacceptable and inappropriate for a

technical sergeant to speak to junior enlisted Airmen

about wanting to have sex with them or to engage in

other sexual comments.

The Government offered, and the military judge

admitted, with no objection from the Defense, pages

1–3 and 11–12 of AFI 36-2706 as Prosecution Exhibit

13. This excerpt included the cover page and table of

contents, as well paragraph 1.2 entitled “Prohibition

of Sexual Harassment.” Paragraph 1.2.1 then

provided the following definition for sexual

harassment:

[U]nwelcome sexual advances, requests of sexual

favors, or other verbal or physical conduct of a sexual

nature particularly when submission to such conduct

is made directly or indirectly as a term or condition of

employment, and/or when submission to or rejection

of such conduct is used as a basis for an employment

decision affecting the person. Unlawful harassment

also includes creating an intimidating, hostile

working environment.

The military judge declined to take judicial notice

of Prosecution Exhibit 13, noting that the version of

AFI 36-2706 admitted into evidence had in fact

10a

expired prior to the charged misconduct. The Air

Force Instruction in effect at the time of Appellant’s

offense (August 2018) was AFI 36-2706, Equal

Opportunity Program Military and Civilian (5 Oct.

2010, as amended by AFGM 2017-01, 9 Feb. 2017).

However, after noting that “the relevant portions [of

the definition of sexual harassment to the 2010 and

2017 versions of AFI 36-2706] don’t appear to be

impacted,” 7 the military judge constructed a draft

instruction that the members could “consider

Prosecution Exhibit 13 only for the limited purpose

that’s expressed inside the draft instructions, which is

its tendency, if any, to demonstrate that there did

exist a duty for [Appellant] to refrain from sexually

harassing someone.”

The military judge’s written findings instructions

(Appellate Exhibit XXIV) on the instruction of sexual

harassment were provided to the members as follows:

“Sexual harassment” means nonconsensual sexual

advances and nonconsensual requests for sexual

7 We agree with the military judge’s observations on this point,

as the definition of sexual harassment in the 2010 AFI tracks

with the definition of sexual harassment in the 2017 version

which was in effect at the time of the misconduct in August 2018.

See AFI 36-2706, Equal Opportunity Program Military and

Civilian, ¶ 1.1.1 (5 Oct. 2010, as amended by AFGM 2017-01 (9

Feb. 2017).

While AFI 36-2706 was superseded on 18 June 2020 by DAFI 362710, the current DAFI also tracks the definition of “sexual

harassment” in substance, providing only superficial additional

verbiage describing the different species of sexual harassment

behavior (i.e., quid pro quo or hostile work environment)

categories. See DAFI 36-2710, Equal Opportunity Program at

265–66 (23 May 2024) (superseding DAFI 36-2710 (18 Jun.

2020)).

11a

favors. Other verbal or physical conduct of a sexual

nature constitutes “sexual harassment” when (1)

submission to such conduct is made either explicitly

or implicitly a term or condition of an individual’s

employment; (2) submission to, or rejection of, such

conduct by an individual is used as the basis for

employment decisions affecting such an individual; or

(3) such conduct has the purpose or effect of

unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or

offensive working environment.

To establish that “sexual harassment” occurred

based on the nature of the working environment, the

[G]overnment must prove that the accused’s actions

created a working environment that was intimidating,

hostile, or offensive when viewed objectively under all

the circumstances.

II. DISCUSSION

A. Admissibility of Expired Service Regulation

Prior to turning to address the challenge to the

legal and factual sufficiency of Appellant’s conviction,

we consider the admissibility of some of the key

evidence in support of that conviction, namely, the

excerpt from the October 2010 version of AFI 36-2706.

Appellant argues that even absent any objection to the

admission of the excerpt of the then expired version of

AFI 36-2706 at trial, its admission was still plain error

because it was incompetent evidence to prove the

existence of a military duty. Even assuming arguendo

that Appellant’s explicit “no objection” merely

forfeited, vice waived, this issue, we still find no error,

plain or otherwise, in the admission of the excerpt of

AFI 36-2706.

12a

1. Additional Background

When the military judge asked the Defense if they

had any objection to admitting AFI 36-2706 into

evidence, the Defense affirmatively said “no.” Prior to

closing argument, the military judge instructed the

members that they could only consider Prosecution

Exhibit 13 for the “limited purpose of its tendency, if

any, to prove the existence of a duty prohibiting sexual

harassment and the accused’s knowledge of that

duty.” The military judge further instructed the

members that they “must apply only the statement of

the law [the military judge has] provided within these

instructions during [their] deliberations.” While trial

defense counsel initially objected to that instruction,

after further discussion of the issue during an Article

39(a), UCMJ, 10 U.S.C. § 839(a), session, trial defense

counsel affirmatively withdrew their objection.

2. Law

a. Waiver and Forfeiture

Counsel declining to raise an objection when

specifically invited by the military judge may

constitute waiver. United States v. Davis, 79 M.J. 329,

331–32 (C.A.A.F. 2019). Nonetheless, as to preJanuary 2021 misconduct, Courts of Criminal Appeals

(CCAs) have an obligation to review the entire record

and the authority to “leave [Appellant’s] waiver intact,

or to correct the error.” United States v. Chin, 75 M.J.

220, 223 (C.A.A.F. 2016) (citation omitted). “[W]e will

only ignore an affirmative waiver in the most

deserving cases.” United States v. Blanks, No. ACM

38891, 2017 CCA LEXIS 186, at *22 n.11 (A.F. Ct.

Crim. App. 17 Mar. 2017) (unpub. op.) (holding that

“[a]ppellant affirmatively waived this issue when he

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conceded, on the record, that the military judge should

grant the Government’s challenges for cause”).

Should we decide to pierce waiver, forfeited

objections as to the military judge’s admission of

evidence are reviewed for plain error. United States v.

Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017). Thus,

Appellant must show that: (1) there was error; (2) the

error was plain or obvious; and (3) the error was

materially prejudicial to his substantial rights. Id.

b. Logical and Legal Relevance

Generally speaking, evidence is admissible if it is

relevant and if the probative value is not substantially

outweighed by the danger of, inter alia, unfair

prejudice, confusing the issues, or misleading the

court members. Mil R. Evid. 401, 403. Relevance is a

low bar and exists if the evidence has “any tendency

to make a fact [of consequence] more or less likely.”

Mil. R. Evid. 401. United States v. Guihama, 85 M.J.

48, 55 (C.A.A.F. 2024) (“The relevance standard is a

low threshold.” (quoting United States v. White, 69

M.J. 236, 239 (C.A.A.F. 2010) (additional citation

omitted)); see also MILITARY RULES OF EVIDENCE

MANUAL § 401.02 (2025) (“By using the phrase ‘any

tendency,’ the military drafters adopted the Federal

Rules of Evidence liberal admissibility standard.”).

Proper limiting instructions are capable of

diminishing Mil. R. Evid. 403 concerns that court

members will consider permissible evidence in an

impermissible way. See generally United States v.

Lusk, 70 M.J. 278, 281 (C.A.A.F. 2011) (holding that

limiting instruction mitigated risk of a Sixth

Amendment Confrontation Clause 8 violation that

8 U.S. Const. amend. VI.

14a

members would substantively consider hearsay upon

which expert relied to reach his opinion) (citation

omitted); United States v. Bailey, 55 M.J. 38, 41

(C.A.A.F. 2001) (holding proper limiting instructions

mitigate harm from improper consideration of Mil R.

Evid. 413 purposes); United States v. Kerr, 51 M.J.

401, 406–07 (C.A.A.F. 1999) (holding proper limiting

instructions are capable of mitigating harm from

potential “spillover” of general considerations of

criminal propensity where an accused is charged with

multiple offenses at the same trial); Mil. R. Evid. 105

(requiring limiting instructions for evidence admitted

for a limited purpose).

3. Analysis

Here Appellant invites us to pierce any putative

waiver of this issue because the underlying evidence

admitted ended up being a central component of the

Government’s proof for the source of the duty to

refrain from sexual harassment. While waiver may

well attach to circumstances such as these where the

military judge specifically calls upon Appellant to

offer any objections to admission of a particular piece

of evidence and Appellant declines (see, e.g., Davis, 79

M.J. at 331–32) (finding waiver where counsel

affirmatively declined any tailored findings

instructions)), here we deem it prudent to assume

without deciding that this issue was merely forfeited

(vice waived). We do so because it allows us to explain

that, regardless of whether this objection was waived

or forfeited, under the circumstances the excerpt from

AFI 36-2706 (Prosecution Exhibit 13) was properly

admitted because it was relevant to the central issue

at this case now on appeal, i.e., whether there was

sufficient proof of “custom” as a source of a duty to

refrain from sexual harassment in the Air Force.

15a

We of course begin with relevance. The relevance

bar is a modest one, defining relevance as “any

tendency to make a fact [of consequence in

determining the action] more or less probable than it

would be without the evidence.” Mil. R. Evid. 401; see

Guihama, 85 M.J. at 55. Insofar as custom of the

service was one of the viable theories for how the

Government could prove the duty to refrain from

sexual harassment in the Air Force, 9 the relevance

inquiry for admission of the expired excerpt of AFI 362706 boils down to this: whether the excerpt of the

October 2010 instruction had any tendency to

demonstrate a long-established practice whose

common usage attaining the force of law within the

Air Force. That answer is yes. First, the fact is that

the definition of sexual harassment as defined in that

excerpt had been in existence since at least 2010. And

considering that this longstanding definition hewed so

closely to the testimony of MSgt ML (who averred that

the same prohibitions were recognized and all

personnel, particularly supervisors, trained upon

those prohibitions), this made it more likely that the

prohibition against sexual harassment was a longestablished practice whose common usage had

attained the force of law. Those attributes were

directly relevant to the trier of fact determining

whether a duty existed by virtue of a custom of the

service. See our opinion’s discussion of the law of

custom, infra at section II.B.2.a.

Turning to whether this otherwise relevant

evidence should have been excluded on Mil. R. Evid.

9 See 2016 MCM, pt. IV, ¶ 16.c.(3)(a) (“A duty may be imposed

by treaty, statute, regulation, lawful order, standard operating

procedure, or custom of the service.”).

16a

403 grounds—we think not. Here, while there was

arguably some risk for confusion for the court

members as to what purpose they could consider this

expired service regulation, the military judge’s

tailored findings instructions sufficiently alleviated

that concern. His instructions were clear and specific

concerning the limited use for which the court

members should consider the expired AFI excerpt

(Prosecution Exhibit 13). The military judge then

provided a separate specific instruction, ratified by

trial defense counsel, concerning the legal definition

of sexual harassment pertinent to trial. Appellant has

waived any objection to those objections by ratifying

those instructions at trial. See our discussion at

section II.B.3, infra. In any event, we conclude the

military judge did not commit error because he did not

abuse his discretion in providing those tailored and

accurate instructions in the first instance.

B. Legal and Factual Sufficiency

Of course, the fact that the Government’s evidence

was admissible does not itself establish the factual

and legal sufficiency of Appellant’s conviction. Here,

Appellant argues that his conviction is factually

insufficient because: (1) the Government offered

insufficient proof of the existence of a duty to refrain

from sexual harassment and that Appellant knew of

that duty; and (2) even if the Government proved a

duty existed and Appellant knew of it, JJ’s factual

allegations of sexual harassment are unreliable

because she lacks credibility. Ultimately, we are

unpersuaded by either of these arguments.

1. Law

We review issues of factual sufficiency for preJanuary 2021 misconduct de novo. See United States

17a

v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)

(citation omitted). Likewise, we review the legal

sufficiency of a conviction de novo. United States v.

Harrington, 83 M.J. 408, 414 (C.A.A.F. 2023) (citing

United States v. King, 78 M.J. 218, 221 (C.A.A.F.

2019)). Our assessment of legal and factual sufficiency

is limited to the evidence produced at trial. United

States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App.

2021) (citing United States v. Dykes, 38 M.J. 270, 272

(C.M.A. 1993)).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (citation omitted). “The

term reasonable doubt, however, does not mean that

the evidence must be free from conflict.” United States

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App.

2017) (citing United States v. Lips, 22 M.J. 679, 684

(A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

“[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)

(citations omitted). As a result, “[t]he standard for

legal sufficiency involves a very low threshold to

sustain a conviction.” King, 78 M.J. at 221 (alteration

in original) (citation omitted). “This deferential

standard impinges upon the factfinder’s discretion

only to the extent necessary to guarantee the

fundamental protection of due process of law.” United

States v. Mendoza, 85 M.J. 213, 217 (C.A.A.F. 2024)

(internal quotation marks and citation omitted).

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For trials involving any convicted offenses

committed before January 2021, “[t]he 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.’” Rodela, 82 M.J. at 525 (third

alteration in original) (quoting United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987) (construing

the pre-January 2021 version of Article 66, UCMJ)).

“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.’” Wheeler, 76 M.J. at 568 (alteration in

original) (quoting Washington, 57 M.J. at 399), aff’d,

77 M.J. 289 (C.A.A.F. 2018).

2. Dereliction of Duty

To find Appellant guilty of dereliction of duty, a

violation of Article 92, UCMJ, the Government was

required to prove, beyond a reasonable doubt, that (1)

Appellant had a duty to refrain from sexually

harassing JJ, (2) he knew of this duty, and (3) he was

willfully derelict in the performance of this duty on

divers occasions. Manual for Courts-Martial, United

States (2016 ed.) (2016 MCM), pt. IV, ¶ 16.b.(3).

a. Source of the Duty

A military duty “may be imposed by treaty,

statute, regulation, lawful order, standard operating

procedure, or custom of the service.” 2016 MCM, pt.

IV, ¶ 16.c.(3)(a); United States v. Tanksley, 36 M.J.

428, 430 (C.M.A. 1993) (citation omitted).

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To qualify as a “custom of the service” based duty,

the action must satisfy the following requirements: (1)

be a long-established practice; (2) whose common

usage attaining the force of law; (3) is not contrary to

military law; and (4) ceases when observance has been

abandoned. See 2016 MCM, pt. IV, ¶ 60.c.(2)(b)

(defining “custom” in the context of an Article 134

violation); 10 see also United States v. Shamess, No

ACM 39434, 2019 CCA LEXIS 339, at *44 (A.F. Ct.

Crim. App. 23 Aug. 2019) (unpub. op.) (observing that

a custom is a “[h]abitual practice or course of action

that characteristically is repeated in like

circumstances”) (quoting “Custom,” BLACK’S LAW

DICTIONARY (6th ed. 1990)).

Competent proof of custom of the service could

include “testimony [ ] offered by a knowledgeable

witness—subject to cross-examination—about that

custom.” United States v. Wales, 31 M.J. 301, 309

10 The 2016 MCM specifically describes the contours of a custom

as follows:

In its legal sense, “custom” means more than a

method of procedure or a mode of conduct or

behavior which is merely of frequent or usual

occurrence. Custom arises out of long established

practices which by common usage have attained

the force of law in the military or other

community affected by them. No custom may be

contrary to existing law or regulation. A custom

which has not been adopted by existing statute

or regulation ceases to exist when its observance

has been generally abandoned. Many customs of

the Service are now set forth in regulations of the

various armed forces.

pt. IV, ¶ 60.c.(2)(b).

20a

(C.M.A. 1990). Equivocal or merely conclusory

comments from a supporting witness fail to meet the

Wales standard. See, e.g., United States v. Fox, 34

M.J. 99, 103 (C.M.A. 1992) (holding that the

Government failed to carry its burden to prove a

custom of the service where they relied on conclusory

and generic testimony that “[fraternization] pretty

much applies to the way in which an officer and

enlisted personnel relate to one another and at what

point does it cross a boundary of socializing”); United

States v. Washington, No. ACM 39761, 2021 CCA

LEXIS 379, at *41 (A.F. Ct. Crim. App. 30 Jul. 2021)

(unpub. op.) (holding the equivocal testimony from a

witness there was a custom against fraternization

generally, but that levels of acceptable social drinking

with subordinates were more fluid was legally

insufficient to constitute evidence of custom of the

service) (citing Wales, 31 M.J. at 309)); rev. granted,

2024 CAAF LEXIS 784 (C.A.A.F. 26 Mar. 2025). By

contrast, “concrete and specific” testimony from a

knowledgeable witness, standing alone, is sufficient to

establish proof of a custom of the service. See

Shamess, unpub. op. at *29 (holding a NCO’s

testimony sufficient to prove the custom in the Air

Force prohibiting sexual relationship between officer

and enlisted personnel). Relatedly, our superior court

has repeatedly reaffirmed the axiom that “the

testimony of only one witness may be enough to meet

this burden so long as the members find that the

witness’s testimony is relevant and is sufficiently

credible.” United States v. Rodriguez-Rivera, 63 M.J.

372, 383 (C.A.A.F. 2006) (citations omitted).

Customs of the service may be further evidenced

by their codification or recognition in service

regulations. See generally AFI 1-1, Air Force

21a

Standards ¶ 2.8.3 (18 Aug. 2023) (codifying various

Air Force customs including prohibition against

sexual harassment); see also United States v. Risner,

No. 200501643, 2006 CCA LEXIS 226, at *6–7 (N.M.

Ct. Crim. App. 9 Aug. 2006) (unpub. op.) (finding

Marine Corps duty to prevent underage consumption

of alcohol by subordinate NCOs pursuant to a base

order established in part by custom of the service);

United States v. Hode, 44 M.J. 816, 818 (A.F. Ct.

Crim. App. 1996) (finding Air Force Alcoholic

Beverage Program was not punitive but did create the

basis for a military duty enforceable via Article 92(3),

UCMJ). Even obsolete service regulations could be

circumstantial evidence of a duty because regulations

are generally understood as codifying service customs.

Cf. United States v. Appel, 31 M.J. 314, 320 (C.M.A.

1990) (“[T]his Court has suggested on two prior

occasions that, in dealing with fraternization, the

armed services might profitably consider issuing

punitive regulations to define some relationships

which are especially harmful to military discipline.”

(citations omitted)); United States v. Pitasi, 44 C.M.R.

31, 38 (C.M.A. 1971) (“While the drafting of an

appropriate regulation might be difficult, we

recommend it to the responsible military

authorities.”).

Finally, evidence of a custom is also demonstrable

through its incorporation into military training. See

United States v. Boyett, 42 M.J. 150, 155 (C.A.A.F.

1994) (holding appellant’s reserve officer training

reasonably

established

a

custom

against

22a

fraternization and reasonably put him on notice of

that custom). 11

b. Sexual Harassment Service Regulations

During the period of Appellant’s convicted sexual

harassment of JJ from August 2018 to December

2018, sexual harassment in the Air Force was

proscribed by both a Department of Defense

Instruction (DoDI) and an Air Force Instruction, to

wit: DoDI 1020.03, Harassment Prevention and

Response in the Armed Forces (8 Feb. 2018), and AFI

36-2706 (9 Feb. 2017). Paragraph 1.2(c) of DODI

1020.03 mandated that “Military Departments will

incorporate the definitions in the Glossary of this

issuance into their respective harassment prevention

and response implementing regulations,” and in turn

defined sexual harassment as, inter alia:

(1) Conduct that:

11 We note further that the 2016 MCM in effect at the time of

Appellant’s misconduct codified a prohibition against sexual

harassment, with the President articulating sexual harassment

as a form of “maltreatment” for purposes of Article 93, UCMJ, 10

U.S.C. § 893, as follows:

[S]exual harassment may constitute this offense.

Sexual harassment includes influencing, offering

to influence, or threatening the career, pay, or job

of another person in exchange for sexual favors,

and deliberate or repeated offensive comments or

gestures of a sexual nature. The imposition of

necessary or proper duties and the exaction of

their performance does not constitute this offense

even though the duties are arduous or hazardous

or both.

2016 MCM, pt. IV, ¶ 17.c.(2).

23a

(a) Involves unwelcome sexual advances, requests

for sexual favors, and deliberate or repeated offensive

comments or gestures of a sexual nature when:

1. Submission to such conduct is made either

explicitly or implicitly a term or condition of a person’s

job, pay, or career;

2. Submission to or rejection of such conduct by a

person is used as a basis for career or employment

decisions affecting that person; or

3. Such conduct has the purpose or effect of

unreasonably interfering with an individual’s work

performance or creates an intimidating, hostile, or

offensive environment; and

(b) Is so severe or pervasive that a reasonable

person would perceive, and the victim does perceive,

the environment as hostile or offensive.

....

(3) Any deliberate or repeated unwelcome verbal

comments or gestures of a sexual nature by any

member of the Armed Forces or civilian employee of

the Department of Defense.

DoDI 1020.03, ¶ 3.3. For its part, AFI 36-2706,

promulgated prior to the DoDI, but still unamended

at the time of Appellant’s misconduct, defined sexual

harassment in the Air Force as:

Unlawful sexual harassment includes unwelcome

sexual advances, requests for sexual favors or other

verbal or physical conduct of a sexual nature

particularly when submission to such conduct is made

directly or indirectly as a term or condition of

employment, and/or when submission to or rejection

of such conduct is used as a basis for an employment

24a

decision affecting the person. Unlawful harassment

includes creating an intimidating, hostile working

environment for another person on the basis of race,

color, religion, sex (including pregnancy, gender

identity, and sexual orientation), national origin, age

(40 or older), disability, genetic information, or

reprisal.[ 12]

12 In acknowledging this existing regulation, we are not taking

judicial notice per se, rather we are merely performing the

inherent appellate function of ascertaining the law applicable to

the elements of the charged offense. Here, we acknowledge the

existence of these regulations solely for the purposes of

comparing the custom of sexual harassment as described by

MSgt ML and set forth in the lapsed version of AFI 36-2706 (5

Oct. 2010) admitted at trial as Prosecution Exhibit 13, and

ascertaining whether Appellant’s verbal and physical sexual

advances towards JJ violated “long established practices which

by common usage have attained the force of law in the military

or other community affected by them.”

In so doing, we do not relieve the Government of its burden to

prove, beyond a reasonable doubt, the existence of a duty to

refrain from sexual harassment. The law does not permit a

factfinder, or this court, to presume the existence of a duty in the

absence of properly admitted evidence. See United States v. Paul,

73 M.J. 274, 279 (C.A.A.F. 2014) (holding a Court of Criminal

Appeals conducting legal and factual sufficiency review cannot

take judicial notice of an element of an offense, even when that

judicial notice extends to matters otherwise eligible for judicial

notice as domestic law). We are aware the existence of a duty as

a matter of law does not resolve the separate issue of whether

the Government proved that duty as a matter of fact. See United

States v. Henderson, No. ACM 40719, 2025 CCA LEXIS 172,

*18–19 (A.F. Ct. Crim. App. 18 Apr. 2025) (unpub. op.) (holding

that Appellant’s Article 92(1), UCMJ, 10 U.S.C. § 892(1),

convictions were factually insufficient where successive versions

of the lawful general regulation concerned were in existence

during the entirety of Appellant’s misconduct, but the

Government failed to offer sufficient proof of that fact at trial).

25a

AFI 36-2706 (9 Feb. 2017), at Attachment, ¶ 1.1.1.

In ascertaining whether an appellant created a

hostile work environment, our superior court has

focused “on the personal interactions at issue to

determine whether the remarks [are] ‘unwelcome[ ].’”

United States v. Brown, 55 M.J. 375, 384–85 (C.A.A.F.

2001). With respect to statements amongst coworkers,

our superior court has recognized “it is necessary to

examine the nature of the interaction between the

parties to the conversation to determine whether the

person making the remarks had reasonable notice

that the comments would be regarded as unwelcome

. . . .” Id. at 385. Importantly, while “co-workers may

be offended from time to time by the behavior of their

colleagues,” to qualify as criminal conduct, the

unwelcome behavior must be “so severe or pervasive

that it creates a hostile work environment.” Id.

c. Knowledge of the Duty

To satisfy the first element of a dereliction of

duty offense, the evidence must demonstrate the

existence of a duty, beyond a reasonable doubt. See

United States v. Hays, 71 M.J. 112, 113–14 (C.A.A.F.

2012); Tanksley, 36 M.J. at 430 (citation omitted). The

Government’s burden of proof as to knowledge is

either that Appellant knew or should have known of

his duties. 2016 MCM, pt. IV, ¶ 16.c.(3)(b) (“Actual

knowledge need not be shown if the individual

reasonably should have known of the duties.”).

However, the Government need not prove an accused

was aware of the precise source of his duty. See United

States v. Markley, 40 M.J. 581, 582 (A.F.C.M.R. 1993).

“[T]he [G]overnment is free to meet its burden of proof

with circumstantial evidence.” King, 78 M.J. at 221

(citations omitted). Finally, knowledge or constructive

26a

knowledge of a duty may also be proved by direct or

circumstantial evidence, including but not limited to

service regulations, training or operating manuals,

customs of the service, academic literature or

testimony, or testimony of persons who have held

similar or superior positions to the accused. See 2016

MCM, pt. IV, ¶ 16.c.(3)(b).

3. Analysis

As a starting point, we note that Appellant’s

allegation of legal insufficiency is based in part upon

an assertion of error which Appellant waived: namely,

that the military judge committed instructional error

by using an erroneous definition for “sexual

harassment.” Specifically, Appellant alleges that the

military judge erred in substituting the word

“nonconsensual” for the word “unwelcome,” 13 and

omitting the terms “pervasive” and “severe” in

describing the course of conduct necessary to prove a

hostile work environment. Appellant did not object to

those instructions at trial, and in fact, affirmatively

agreed with them. Accordingly, he waived any

objections thereto. See Davis, 79 M.J. at 331–32.

Moreover, we decline his invitation that we

essentially conflate alleged instructional error with a

species of legal and factual insufficiency. 14

13 We note Appellant explicitly argued for and agreed with

inclusion of the word “nonconsensual” in the instruction

concerned.

14 Even aside from waiver, such an assertion fundamentally

confuses the issue of alleged instructional error with factual and

legal sufficiency. Appellant would have it that if the court

members were instructed as to the wrong legal standard that we

cannot affirm a conviction. Not so. First of all, instructional error

itself is tested for prejudice. See United States v. Ober, 66 M.J.

393, 406 (C.A.A.F. 2006) (holding no prejudice from military

27a

Nonetheless, here, for simplicity’s sake, we will

assume arguendo that Appellant’s view of the law is

correct and that the DoDI 1020.03 definition of sexual

harassment was binding upon the Air Force at the

time of Appellant’s charged misconduct. 15 The issue

then becomes whether the Government’s proof at

trial, which included neither the DoDI nor the current

version of the AFI at the time (i.e., 9 Feb. 2017)

judge omitting words from a findings instruction because

Appellant did not demonstrate how that omission would have

had a prejudicial impact on the court members by inviting them

to convict on an erroneous theory of liability). Secondly, the

factual and legal sufficiency analysis is distinct from an

instructional error analysis. This is so because the law is what

the law is. In reviewing the factual and legal sufficiency of a

conviction we are not limited to statements of putative law in the

military judge’s instructions, but rather, we have the

independent obligation under Article 66(d), UCMJ, 10 U.S.C.

§ 866(d), to determine what the law is—and then evaluate the

legal and factual sufficiency of the evidence in light of the correct

law as we find it. Thus, even if we agreed with Appellant’s

assertions that the military judge mis-defined “sexual

harassment” in his findings instructions (which we do not), that

alone would not inhibit us from applying the appropriate

definition now on appeal.

15 In comparing the definitions of sexual harassment from the

various Department of Defense and Air Force instructions cited

above, we conclude as a matter of law that these definitions are

substantially similar. Moreover, for reasons explained infra in

our analysis, to the extent that the DoDI definition explicitly

included the terms “pervasive” and “severe” in describing sexual

harassment via a hostile work environment, we have reviewed

the evidence in this case through that filter and conclude that

Appellant’s nonconsensual sexual advances towards JJ were

both pervasive and, under the circumstances, severe (given the

explicitness of the advances and the rank and power disparity

between Appellant and JJ).

28a

prohibiting sexual harassment, was sufficient to prove

the existence of a duty to refrain from sexual

harassment in the Air Force. Appellant would

essentially have us conclude that the Government

cannot rely upon the 2010 version of AFI 36-2706

because it was expired and could not rely upon MSgt

ML’s testimony as proof as custom of the service

because the Government did not ascribe that moniker

of “custom of the service” to it at trial. We decline

Appellant’s invitation to champion form over

substance.

Ultimately, for purposes of accessing legal and

factual sufficiency, we are not constrained by

monikers ascribed at trial, but rather we are

empowered to conduct an independent assessment of

the underlying evidence itself. See Shamess, unpub.

op. at *29 (“Although [MSgt JP] did not use the

specific term ‘custom,’ we find her testimony

sufficiently described the plain meaning of that

term.”). The Government complicated their

presentation of evidence by opting for perhaps the

most difficult route possible to prove their case—

presenting evidence of an expired service regulation

proscribing sexual harassment, accompanied by a

senior NCO’s testimony that the substance of that

service regulation was recognized and enforced in

training and in practice in Appellant’s squadron at the

time of the charged misconduct. However, the

Government was not required to choose the easier and

more obvious routes in proving the existence of a

military duty via statutes and regulations then in

effect. Instead, the question on appeal is simply

whether the Government’s evidence was competent to

prove the existence of a duty via a method specifically

29a

authorized by Article 92, UCMJ, i.e., “custom of the

service”—we hold in the affirmative.

In sum, the fact that the Government did not

explicitly reference in argument at trial that the

source of the duty was a military custom does not

constrain us from concluding that the evidence at trial

was legally and factually sufficient. In the end, for the

reasons set forth below, we conclude beyond a

reasonable doubt that a duty to refrain from sexual

harassment in the Air Force exists by virtue of, inter

alia, custom of the service, that the Government

proved that custom at trial, and that Appellant’s

actions constituted willful violation of that duty by

sexually harassing a junior Airman under his direct

supervision: JJ.

a. Insufficient

Regulation

Proof

of

Duty

Imposed

by

We reiterate that the threshold issue in this case

is what constitutes cognizable evidence of a “custom of

the service” to demonstrate the existence of a military

duty. Here, the Government (perhaps inadvertently)

limited itself to proof of a duty by “custom of the

service” because it neglected to offer readily available

proof of the current version of the service regulation

codifying the prohibition against sexual harassment

under federal law as applied to the Air Force

specifically. We agree with Appellant that the

Government’s offer of an expired version of AFI 362706 was insufficient, in and of itself, to prove the

existence of a duty as established by service

regulation in effect at the time of the misconduct. See

Untied States v. Henderson, No. ACM 40719, 2025

CCA LEXIS 172, *18–19 (A.F. Ct. Crim. App. 18 Apr.

2025) (unpub. op.).

30a

b. Sufficient Proof of Duty Imposed by Custom of

the Air Force

Having determined the regulation relied upon by

the Government did not independently establish a

duty (because it was expired), we turn to whether

there was nonetheless evidence of a duty based on a

custom of the Air Force.

Unlike Henderson, here the Government’s proof

was not limited to an expired regulation to establish

the duty; it was buttressed by testimony from a

competent witness with a specific basis for knowledge

of the long-established practice against sexual

harassment in the Air Force and Appellant’s

squadron, in particular. While we acknowledge that

neither MSgt ML nor trial counsel categorized her

testimony as proof of a “custom of the service,” the

absence of an applicable moniker at trial does not

limit our consideration of that evidence for all

admissible purposes on appeal.

Here the expired service regulation still provided

circumstantial evidence that of a custom of the service

against sexual harassment in effect at the time of

Appellant’s misconduct. Specifically, the regulation

provided some corroboration of MSgt ML’s testimony

that the prohibition against sexual harassment was a

custom of the service in the Air Force in effect for at

least “the last 11 years.” If the definition of sexual

harassment, and the prohibition thereof, remained

constant across the updated regulations, then that

reinforces that even this obsolete document could be

circumstantial evidence of a custom in the Air Force

against sexual harassment, so long as the

Government had a witness to link that obsolete

regulation to current practice, i.e., MSgt ML.

31a

Undeterred, Appellant essentially asserts that the

military judge erred in his findings instructions in

defining sexual harassment as a “nonconsensual”

versus an “unwelcome” advance, and that this error

invalidates his conviction because it creates the

possibility that the court members convicted on an

erroneous theory of liability. This argument is

unavailing for several reasons. First, once again,

Appellant waived any issue of instructional error by

explicitly agreeing with the military judge’s

instruction at trial. See Davis, 79 M.J. at 331–32.

Second, any legal or factual distinction between

“unwelcome” and “nonconsensual” is de minimis, and

if it exits, would only tend to inure to Appellant’s

favor. It is difficult to conceive of a scenario where a

sexual advance was nonconsensual, yet somehow still

not “unwelcome.” Even if this court could ascertain

such an esoteric distinction, as the military judge

pointed out at trial, the term nonconsensual had

strategic benefits for the Defense by enabling a

“mistake of fact as to consent” instruction which was

mutually reinforcing of the requirement for an

objectively hostile work environment as defined by the

military judge. Third, even if this inscrutable

distinction

between

“unwelcome”

and

“nonconsensual” somehow resulted in the court

members being provided with an inaccurate theory of

liability of sexual harassment, that would not

preclude our separate review of whether, under the

correct understanding of the law, the Government

presented proof beyond a reasonable doubt that

Appellant’s actions constituted sexual harassment

within the definition established by service custom

and regulation at the time of trial. In short, from a

32a

legal or factual sufficiency perspective, we are not

bound by any “law of the case” from the military judge

in findings instructions. Rather, in this context we

have the independent duty to ascertain and apply the

elements of the offense de novo.

Even applying Appellant’s preferred version of the

definition of sexual harassment as contained in DoDI

1023.02, we find Appellant’s conduct meets that

standard. The facts here demonstrate a “hostile work

environment” typified by pervasive verbal sexual

advances and comments by a superior directed at a

subordinate. As a matter of fact, we conclude beyond

a reasonable doubt both that the testimony of MSgt

ML established that a custom of the Air Force

prohibiting that same conduct was in effect at the time

of Appellant’s misconduct and that Appellant knew of

that duty by virtue of recurrent training for

supervisors in the squadron on that topic. We further

conclude that while evidence of the expired version of

AFI 36-2706 was itself insufficient to establish that

regulation as a source of the duty, it still corroborates

MSgt ML’s testimony that “culture shift” in the Air

Force against sexualized conversations in the

workplace in the Air Force dated back at least “10–11

years.” Unlike the generic witness testimony we found

unpersuasive in Washington, MSgt ML’s testimony

was specific to the training and culture extant in

Appellant’s own squadron at the time of his

misconduct. Her testimony was sufficiently specific

and tailored. See Shamess, unpub. op. at *29. MSgt

ML’s testimony that there was a culture shift about

“10 or 11 years ago” regarding “locker room talk” and

more generally regarding sexual comments amongst

Airmen in the workplace, and that Appellant, as an

“Expediter” with trainings commensurate to his pay

33a

grade and position, would have known “he was not to

sexually harass junior enlisted Airmen” is persuasive

and convincing. That conclusion is reinforced by her

personal familiarity both with Appellant, and their

shared squadron.

c. JJ’s Credibility

Finally, having concluded that MSgt ML’s

testimony and the expired version of AFI 36-2706

combined provided sufficient proof of a custom of the

service against sexual harassment and of Appellant’s

knowledge of that duty, we turn to Appellant’s

arguments that JJ’s testimony (1) lacks sufficient

credibility to be believed; and (2) even if true does not

rise to the level of “pervasive” activities such that it

constituted “sexual harassment” by creating a “hostile

working environment.”

First, as a matter of fact and law, JJ’s descriptions

of Appellant’s persistent verbal sexual advances and

unsuccessful physical sexual advance, if true,

constitute “sexual harassment” within the meaning of

the term prohibited by both regulation and custom at

the time of his conduct. Once again, the key part of the

applicable definition of sexual harassment is

nonconsensual “sexual advances, requests for sexual

favors or other verbal or physical conduct of a sexual

nature.” While Appellant is correct that the

Government did not prove that Appellant’s advances

were specifically predicated upon explicit threat of

adverse career consequences for denying his

advances, the definition of sexual harassment as it

pertains to service custom, is broader than the quid

pro quo form of harassment. Here the evidence

demonstrated that Appellant created a hostile work

environment by systematically and explicitly

34a

initiating sexualized conversations with his

subordinate, commenting on her sexual attractiveness

with the intent of pursuing sexual relations with her.

The fact that there was only one incident where

Appellant made physical sexual advances towards JJ

does not make his verbal sexual advances towards her

any less pervasive. Under the totality of the

circumstances and particularly given the E-2 to E-6

rank and power disparity, we conclude Appellant’s

pervasive sexual advances are sufficiently “severe”

from the perspective of an objective observer familiar

with all the facts, to constitute a “hostile work

environment.” In short, a harasser’s comments are

more “severe” when the rank and power disparity

creates a greater sense of intimidation and fear from

resisting or reporting.

Second, having reviewed the entire record, we do

not share Appellant’s concerns that JJ’s credibility

inhibits us from being firmly convinced that her

testimony is true. Perfection is not the standard for

witness testimony. Considering the facts de novo we

are less concerned with JJ’s inconsistencies and more

concerned with the corroboration of the major details

of her testimony, and the absence of any convincing

motive for her to fabricate her testimony. Multiple

witnesses verified JJ’s assertions that, unique to JJ,

Appellant would take her, a junior Airman,

unnecessarily on maintenance runs that should have

taken minutes but extended for hours. This created

ample opportunity for Appellant’s sexualized

advances. JM corroborates JJ’s emotional distress

after she immediately reported Appellant’s attempted

unwanted kiss against her.

Appellant invites us to dismiss all this evidence

principally because:

(1) during her initial

35a

interview with OSI she denied that Appellant ever

sexually touched or harassed her; and (2) she

harbored a motive to fabricate because her then

boyfriend GS reportedly became upset when he

learned of Appellant’s alleged advances towards her.

However, JJ provided a convincing explanation for her

initial false statements to OSI—namely, that she

intentionally underplayed Appellant’s misconduct in

that interview because she was pregnant and wanted

to be left alone in peace to have her baby without

having to contend with ongoing requests to participate

in an investigation. Moreover, Appellant himself

provides some corroboration for JJ’s testimony. By his

own admission to JJ’s then boyfriend, and as testified

to by GS at trial, Appellant apologized for “trying to

get at [i.e., initiate a romantic/sexual relationship

with]” JJ. In light of this corroboration of JJ’s core

allegations, the evidence is legally sufficient because

a reasonable trier of fact, drawing all reasonable

inferences in favor of the Government’s evidence,

could reasonably conclude that any imperfections or

inconsistencies in JJ’s testimony do not disturb the

underlying credibility of her testimony describing

Appellant’s sexual harassment of her. Likewise, as a

matter of factual sufficiency, having reviewed all the

evidence and testimony admitted at trial de novo with

neither an inference of guilt nor innocence, we are

persuaded of Appellant’s guilt, beyond a reasonable

doubt.

C. Appellate Delay

1. Procedural Background

Appellant was sentenced on 22 April 2022.

Thereafter, the military judge entered judgment in

this case on 26 May 2022. Appellant’s case was first

36a

reviewed by a judge advocate within the office of the

general court-martial convening authority (GCMCA)

pursuant to Article 65(d), UCMJ, 10 U.S.C. § 865(d),

on 29 June 2022, which determined the findings and

sentence in Appellant’s case were correct in law and

fact. On 23 December 2022, Congress amended

Articles 66 and 69, UCMJ, 10 U.S.C. §§ 866, 869. 16 As

amended, Article 66(b)(1)(A), UCMJ, expanded the

service Courts of Criminal Appeals’ jurisdiction to any

judgment of a special or general court-martial,

irrespective of sentence, that included a finding of

guilty. 10 U.S.C. § 866(b)(1)(A) (Manual for CourtsMartial, United States (2024 ed.)).

For reasons unexplained in the record, Appellant

did not receive notice of the conclusion of the Article

65(d), UCMJ, review in his case until 5 April 2023,

and he did not receive notice of his right to file a direct

appeal with this court until 28 November 2023. 17 Once

notified of the latter, Appellant then duly submitted

16 The National Defense Authorization Act for Fiscal Year 2023,

Pub. L. No. 117-263, § 544, 136 Stat. 2395, 2582–84 (23 Dec.

2022).

17 Relatedly, after the office of the GCMCA concluded their

Article 65(d), UCMJ, review, Appellant filed an Article 69,

UCMJ, appeal with the office of The Judge Advocate General of

the Air Force (TJAG) on 26 June 2023. However, that appeal was

ultimately returned to Appellant with no action because

Appellant’s case had since become subject to “direct appeal” to

this court pursuant to Article 66(b)(1)(A), UCMJ (2024 MCM);

see also United States v. Vanzant, 84 M.J. 671, 676 (A.F. Ct.

Crim. App. 2023) (holding the appellant’s case still qualified for

“direct appeal” under the amended Article 66(b)(1)(A), UCMJ,

because the appellant had not submitted his case for Article 69,

UCMJ, review by TJAG prior to the effective date of the Article

66(b)(1)(A), UCMJ, “direct appeal” amendment (that being, 23

December 2022)), rev. granted, 85 M.J. 198 (C.A.A.F. 2024).

37a

his notice of direct appeal with this court on 15

December 2023. In all, there was a 607-day delay

between Appellant’s sentencing at trial and the

docketing of Appellant’s case with this court on 19

December 2023.

Once Appellant’s case was docketed, a further 19

months of delay ensued. The reasons for that delay

include: the time required for the Government to

compile and deliver the record of trial to Appellant

and this court—not accomplished until 13 June

2024; 18 the time required for Appellant to file his

brief—filed with this court on 23 October 2024; the

time required for the Government to file its answer on

22 November 2024; the time required for Appellant to

file his reply brief on 2 December 2024; and finally the

time required for this court to review the case and

render an opinion. In the interim, Appellant filed two

pro forma demands for speedy appellate review.

However, neither of these demands articulated any

particularized prejudice appertaining to Appellant as

a consequence of ongoing appellate review in this

case. 19 Finally, as part of his appeal, Appellant filed a

declaration in support of his assignment of error that

he had been denied speedy appellate processing.

However, in that declaration (dated 23 October 2024)

Appellant ascribed the prejudice he suffered not to his

appellate delay but rather to his underlying conviction

itself, asserting: “the consequences of my conviction

were catastrophic.” Amongst those consequences

18 The record of trial includes a 1,004-page verbatim transcript,

17 Prosecution Exhibits, one Defense Exhibit, and 24 Appellate

Exhibits.

19 Appellant’s demands recite simply: “Appellant further [ ]

demands speedy appellate processing.”

38a

Appellant recounts his administrative discharge from

the Air Force following his conviction; “the whispers,

the gossip” his family has heard concerning his

conviction; the emotional impact of being in

confinement when his beloved grandmother died; all

culminating in Appellant’s self-assessment that

“wrongful conviction has left [him] with [posttraumatic

stress

syndrome],

anxiety,

and

depression.” 20

2. Law

“[C]onvicted service members have a due process

right to timely review and appeal of courts-martial

convictions.” United States v. Moreno, 63 M.J. 129,

135 (C.A.A.F. 2006) (first citing United States v.

Toohey, 60 M.J. 100, 101 (C.A.A.F. 2004); then citing

Diaz v. Judge Advocate General of the Navy, 59 M.J.

34, 37–38 (C.A.A.F. 2003)). Whether an appellant has

been deprived of his due process right to speedy posttrial and appellate review, and whether constitutional

error is harmless beyond a reasonable doubt, are

questions of law we review de novo. United States v.

Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020) (citation

omitted); United States v. Arriaga, 70 M.J. 51, 56

(C.A.A.F. 2011) (citation omitted). This court also has

separate statutory authority to provide “appropriate

relief” if an accused “demonstrates error or excessive

delay in the processing of the court-martial after the

[entry of judgment].” Article 66(d)(2), UCMJ, 10

U.S.C. § 866(d)(2). Appropriate relief is not

synonymous with “meaningful relief.” United States

20 We respectfully note that Appellant provided no mention that

this assessment was a bona fide psychological diagnosis by a

mental health professional, nor any supporting statements from

treating mental health professionals to that effect.

39a

v. Valentin-Andino, __ M.J. __, No. 24-0208, 2025

CAAF LEXIS 248, at *7 (C.A.A.F. 31 Mar. 2025).

Additionally, “[a]lthough it is within a Court of

Criminal Appeal’s discretion to place its reasoning

about Article 66(d)(2)[, UCMJ,] relief on the record, it

is not required to do so.” Id. (citing United States v.

Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013)).

a. Delay in Between Sentencing and Docketing.

A presumption of unreasonable delay ordinarily

arises when a case is docketed more than 150 days

from an appellant being sentenced. United States v.

Livak, 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020)

(citation omitted). However, in the context of “direct

appeals” such as Appellant’s, a panel of this court

previously held in United States v. Boren that the

150-day threshold established in Livak does not per se

apply to direct appeals. United States v. Boren, No.

ACM 40296 (f rev), 2025 CCA LEXIS 103, at *43 (A.F.

Ct. Crim. App. 19 Mar. 2025) (unpub. op.). A

presumptively unreasonable delay triggers an

analysis of the four factors set forth in Barker v.

Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the

delay; (2) the reasons for the delay; (3) assertion of the

right to timely review and appeal; and (4) prejudice.”

Moreno, 63 M.J. at 135 (additional citations omitted).

b. Delay Between

Decision

Docketing

and

Appellate

A presumption of unreasonable delay also arises

when appellate review is not completed, and a

decision is not rendered within 18 months of docketing

by this court. Moreno, 63 M.J. at 142. This type of

unreasonable delay also triggers an analysis of the

four Barker factors. Id. at 135 (citing Barker, 407 U.S.

at 530). Following Barker as interpreted by the

40a

various federal circuit courts, Moreno identified three

cognizable types of prejudice arising from post-trial

processing delay: (1) oppressive incarceration; (2)

anxiety and concern; and (3) impairment of a

convicted person’s grounds for appeal and ability to

present a defense at a rehearing. Id. at 138–39

(citations omitted).

“We analyze each factor and make a determination

as to whether that factor favors the Government or

the appellant.” Id. at 136 (citation omitted). Then, we

balance our analysis of the factors to determine

whether a due process violation occurred. Id. (citing

Barker, 407 U.S. at 533 (“Courts must still engage in

a difficult and sensitive balancing process.”)). “No

single factor is required for finding a due process

violation and the absence of a given factor will not

prevent such a finding.” Id. (citation omitted).

However, where an appellant has not shown prejudice

from the delay, there is no due process violation unless

the delay is so egregious as to “adversely affect the

public’s perception of the fairness and integrity of the

military justice system.” United States v. Toohey, 63

M.J. 353, 362 (C.A.A.F. 2006).

3. Analysis

Even harkening to Boren’s conclusion that the 150day Livak benchmark does not apply to direct appeal

cases, we still consider the 607-day delay here

between sentencing and docketing to be facially

unreasonable. The delay in rendering this decision

approximately one month beyond the 18-month

benchmark from docketing to decision set forth in

Moreno also renders that portion of appellate delay in

this case presumptively unreasonable.

41a

As for the reasons for delay, first, while we do not

condone the protracted processing of Appellant’s

record of trial, the reasons for that delay were unique

and understandable (involving an intervening

statutory amendment to Article 66(d)(1)(B)(A),

UCMJ, impacting internal governmental procedures

for the production of verbatim transcripts in

previously “sub-jurisdictional” cases, and the

retirement of both the military judge and court

reporter prior to completion of the record of trial), if

not fully reasonable. Likewise, the facially

unreasonable portion of the delay pertaining to the

issuance of this court’s decision is a modest one month

beyond the Moreno threshold, and the ultimate

intricacies of the separate opinions in this case

provide good cause for that portion of delay

attributable to us.

The third Barker factor does weigh in Appellant’s

favor, but only slightly in our judgment given

Appellant’s mere pro forma style demands.

As to the fourth and final Barker factor,

prejudice—we find none. Here there is not even an

allegation in Appellant’s post-trial declaration of any

of the three species of prejudice articulated in Moreno.

Considering the totality of the circumstances, the

delays, separately and collectively, are not so

egregious as to adversely affect the public’s perception

of the fairness and integrity of the military justice

system, and thus we find no due process violation. See

Toohey, 63 M.J. at 362.

Finally, while cognizant of our specific statutory

authority to apportion “appropriate relief” for delays

in post-trial processing, in the absence of a due process

42a

violation, we deem no relief is “appropriate” under

Article 66(d)(2), UCMJ.

III. CONCLUSION

The findings and sentence as entered are correct in

law and fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. Articles

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

Accordingly, the findings and sentence are

AFFIRMED.

GRUEN, Judge (dissenting):

I cannot concur with my esteemed colleagues

regarding their conclusion that the conviction for

dereliction of duty is factually sufficient because I do

not agree the Government sufficiently proved their

case beyond a reasonable doubt. Specifically, the

majority opinion assumes a duty to not sexually

harass exists and fills in the deficiencies in the

Government’s proof of such a duty and knowledge by

Appellant of such duty by taking judicial notice of

certain matters that were not sufficiently proved by

the Government during the trial. Further, the

majority goes so far as to create a theory of sexual

harassment based on custom of the Air Force to justify

the conviction when custom of the Air Force formed no

part of the Government’s theory at trial—the words

“custom of the Air Force” do not appear anywhere in

the record of trial. Additionally, my colleagues lend

more credibility to witness testimony than I afford.

More importantly, my colleagues do not address the

fact that a proper instruction on findings must have

included the correct definition of sexual harassment,

which was integral to achieving a legally and factually

sufficient conviction. Because I find the military judge

43a

made fatal flaws in drafting the definition of sexual

harassment in his findings instructions to the

members, I would find the conviction legally

insufficient and forego addressing factual sufficiency

as moot. Therefore, I respectfully dissent as to issue

(1) and would SET ASIDE the findings and sentence

and return the record of trial to The Judge Advocate

General of the Air Force authorizing a rehearing. 21

I. BACKGROUND

Appellant’s sole conviction pertains to his conduct

towards JJ, a junior enlisted Airman who alleged that

Appellant sexually harassed her during the time they

worked mid-shifts together. Because Appellant was

charged with having been derelict in his duty to not

sexually harass another Airman, the legal meaning of

sexual harassment was crucial to a determination of

guilt or innocence at trial. At the time of trial it was

clear there existed multiple definitions of sexual

harassment in statutes and Air Force regulations. The

military judge acknowledged this when refusing to

take judicial notice of excerpts of Air Force Instruction

(AFI) 36-2706, Equal Opportunity Program Military

and Civilian, at 1–3, 11–12 (5 Oct. 2010), which he had

admitted as Prosecution Exhibit 13 (PE 13).

Specifically, he stated he would not take judicial

notice of an AFI that was obsolete at the time of the

alleged crimes, and which had since been amended

multiple times. The military judge ultimately crafted

21 See Article 66(f)((1)(A)(ii), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 866(f)(1)(A)(ii) (Manual for Courts-Martial,

United States (2019 ed.) (2019 MCM). Unless otherwise noted,

all references to the UCMJ and Rules for Courts-Martial are to

the 2019 MCM.

44a

and provided a definition in his findings instructions

to the members.

The Government offered, and the military judge

admitted as PE 13, with no objection from the

Defense, excerpts of AFI 36-2706. The excerpts totaled

five pages but did not include Attachment 1 of the

AFI, which provided a full definition of sexual

harassment. Attachment 1 states:

Harassment on the basis of sex is a violation of

Title VII of the Civil Rights Act of 1964. Unwelcome

sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature

constitute sexual harassment when (1) submission to

such conduct is made either explicitly or implicitly a

term or condition of an individual’s employment, (2)

submission to or rejection of such conduct by an

individual is used as the basis for employment

decisions affecting such individual, or (3) such conduct

has the purpose or effect of unreasonably interfering

with an individual’s work performance or creating an

intimidating,

hostile,

or

offensive

working

environment.

AFI 36-2706 (5 Oct. 2010), Attachment 1.

During discussions with counsel, the military

judge contemplated taking judicial notice of the

excerpted portions of AFI 36-2706 that comprised PE

13. The military judge contemplated the effect of his

instructions on the law in light of the instruction

stating:

I told them [the members] so many times that I

instruct you what the law is and if I give them

elements, and they don’t include this [PE 13], there

might be some cognitive dissonance from the

45a

members. So, what I am inclined to do is take judicial

notice of it, because I can do that at any time. And

then, give them a very brief instruction that doesn’t

say they have to, but they can accept it and use it in

weighing and evaluating the remainder of the

evidence.

What the language would really be like is, “I have

taken judicial notice of a portion of,” and then I would

identify it. In particular, the portion collected in [PE]

13, and then it would say, “this means you are

permitted to recognize and consider these portions of

law without further proof. You may consider this

information in determining the weight and

significance, if any, to be given to the other evidence

and testimony in this case.”

Neither trial counsel nor trial defense counsel

objected to the military judge’s proposed course of

action or instruction. The next morning, again when

discussing instructions with counsel, the military

judge stated:

Now, you may have noticed I did not have an

instruction in there for taking judicial notice. Upon

inquiry last night, I do not believe that that is the

version of the AFI [36-2706] that would have been in

force and effect at the time of the allegations in this

case. At a minimum, it’s missing an interim change

that was accomplished—it’s called Change 1, as of 5

October 2011. There’s also an Air Force Guidance

Memorandum, dated 20 September 2011, and then

they refer to as well some policy guidance from [the

Air Force Directorate on Manpower, Personnel, and

Services], dated 7 June 2012, in a cover letter that I

have from the reissuance of the 9 February 2017

46a

version, which was reissued on the 20th of January

2019.

Suffice it to say, there was no objection from the

[D]efense. The members have had this document [(PE

13)] throughout the course of the trial, since the very

beginning. I am not inclined to take judicial notice—

although the relevant portions don’t seem to be

impacted, I would highlight that even the excerpt that

the [G]overnment has provided has, in one of the

relevant paragraphs, a reference out to “See

Attachment 1 for full definition” and then there’s no

Attachment 1 in [PE 13]. So even if I were to try to

take judicial notice from some portion of this, I would

have to be importing some additional definitions for

clarity, or ruling out portions and say “see this other

part.”

(Emphasis added).

The military judge then explained that instead of

taking judicial notice he constructed a draft

instruction that “the members can consider [PE 13]

only for the limited purpose that’s expressed inside

the draft instructions, which is its tendency, if any, to

demonstrate that there did exist a duty for [Appellant]

to refrain from sexually harassing someone.”

Appellate Exhibit XXIV consists of the military

judge’s written findings instructions provided to the

members. The instruction of sexual harassment the

military judge intended to provide the members, and

ultimately did provide the members, stated:

“Sexual harassment” means nonconsensual sexual

advances and nonconsensual requests for sexual

47a

favors.[ 22] Other verbal or physical conduct of a sexual

nature constitutes “sexual harassment” when (1)

submission to such conduct is made either explicitly

or implicitly a term or condition of an individual’s

employment; (2) submission to, or rejection of, such

conduct by an individual is used as the basis for

employment decisions affecting such an individual; or

(3) such conduct has the purpose or effect of

unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or

offensive working environment.

To establish that “sexual harassment” occurred

based on the nature of the working environment, the

government must prove that the accused’s actions

created a working environment that was intimidating,

hostile, or offensive when viewed objectively under all

the circumstances.

During Rule for Courts Martial (R.C.M.) 802

discussions with counsel, before providing findings

instructions to the members, trial counsel requested

the military judge strike “nonconsensual” from his

proposed instruction and substitute that word with

“unwanted.” The basis for trial counsel’s request was

22 As is stated in the analysis, it is precisely this period after

“favors” that creates one of the fatal flaws in this instruction.

This period is crucial to the determination of legal sufficiency

because the military judge has created a definition of sexual

assault to provide to the members. When he then instructs on

“[o]ther verbal or physical conduct of a sexual nature” he

correctly associates that conduct with the qualifiers in (1)–(3).

But having not also associated the conduct in his first sentence

with the (1)–(3) qualifiers, he has fundamentally and fatally

misinstructed the definition of sexual harassment and provided

the members an option to convict Appellant on a theory of

criminal misconduct for which he was not charged.

48a

the language of PE 13, i.e., the excerpt from AFI 362706 (5 Oct. 2010), made no mention of

“nonconsensual” conduct and referred to “unwanted”

conduct in its definition of sexual harassment. To this

the military judge responded, “[The AFI] that I’m not

taking judicial notice of? That isn’t the actual AFI

version?” The military judge did not accept this

proposed change and gave the instruction to the

members as originally drafted.

II. DISCUSSION

A. Law

We review issues of legal sufficiency de novo.

United States v. Harrington, 83 M.J. 408, 414

(C.A.A.F. 2023) (citing United States v. King, 78 M.J.

218, 221 (C.A.A.F. 2019)). Our assessment of legal

sufficiency is limited to the evidence produced at trial.

United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct.

Crim. App. 2021) (citing United States v. Dykes, 38

M.J. 270, 272 (C.M.A. 1993)).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (citation omitted). “This

deferential standard impinges upon the factfinder’s

discretion only to the extent necessary to guarantee

the fundamental protection of due process of law.”

United States v. Mendoza, 85 M.J. 213, 217 (C.A.A.F.

2024) (internal quotation marks and citation omitted).

“The question of whether a jury was properly

instructed [is] a question of law, and thus, review is

de novo.” United States v. McDonald, 57 M.J. 18, 20

(C.A.A.F. 2002) (alteration in original) (citation

49a

omitted). “[A] military judge has wide discretion in

choosing the instructions to give,” if those instructions

provide an “accurate, complete, and intelligible

statement of the law.” United States v. Behenna, 71

M.J. 228, 232 (C.A.A.F. 2012) (citations omitted).

While military judges have some discretion in

tailoring panel instructions, a military judge has a

“duty to ‘provide appropriate legal guidelines to assist

the jury in its deliberations.”’ United States v.

Wolford, 62 M.J. 418, 419 (C.A.A.F. 2006) (quoting

United States v. McGee, 23 C.M.A. 591, 1 M.J. 193,

195, 50 C.M.R. 856 (C.M.A. 1975)). “Failure to provide

correct and complete instructions to the panel before

deliberations begin may amount to a denial of due

process.” Id. (citation omitted). R.C.M. 920(e)

expressly requires that instruction on findings

include, inter alia, “[a] description of the elements,”

and “[s]uch other explanations, descriptions, or

directions as may be necessary and which are properly

requested by a party or which the military judge

determines, sua sponte, should be given.” R.C.M.

920(e)(7).

Waiver does not apply to “required instructions.”

United States v. Davis, 53 M.J. 202, 205 (C.A.A.F.

2000) (quoting United States v. Taylor, 26 M.J. 127,

128 (C.M.A. 1988)). When, as here, an appellant “fails

to preserve the instructional error by an adequate

objection or request, we test for plain error.” United

States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017).

Having considered the test for plain error, I find the

error of providing the wrong definition of the

consequential element did amount to plain error.

Where an instructional error raises constitutional

implications, our superior court has traditionally

tested the error for prejudice using a ‘“harmless

50a

beyond a reasonable doubt’ standard.” United States

v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014) (quoting

Wolford, 62 M.J. at 420). The test for determining if

the error was harmless beyond a reasonable doubt is

“whether, beyond a reasonable doubt, the error did not

contribute to the [accused’s] conviction or sentence.”

United States v. Prasad, 80 M.J. 23, 29 (C.A.A.F.

2020) (alteration in original) (quoting United States v.

Hills, 75 M.J. 350, 357 (C.A.A.F. 2016)). When an

appellate court is not confident that a constitutional

error did not taint the proceedings, it should find

prejudice. See id. “Whether the error is harmless

beyond a reasonable doubt is a question of law that we

review de novo.” United States v. Simmons, 59 M.J.

485, 489 (C.A.A.F. 2004) (citation omitted).

B. Analysis

My colleagues suggest the “primary evidentiary

issue in this case centers upon whether the

Government offered sufficient proof of a seemingly

non-controversial fact: namely, that every Airman in

the Air Force has a duty to abstain from sexual

harassment of fellow Airmen in the workplace.” This

may be true, but the crucial defect in their position is

that they address factual sufficiency without first

addressing the importance of the military judge

legally defining sexual harassment in the context of a

criminal charge claiming dereliction of a duty not to

sexually harass another. It is precisely this definition,

which neither trial counsel, trial defense counsel, or

the military judge could agree upon, that is the

primary issue in this case. To argue Appellant knew

what conduct constituted sexual harassment when

the legal experts at trial grappled over the definition

is inconsistent with a conclusion that the Government

51a

sufficiently proved beyond a reasonable doubt all

elements of the offense as charged.

With respect to instructional error, which I find the

errors in this case equate to a due process violation

and legal insufficiency, my colleagues claim Appellant

waived such error at trial by not objecting to the

military judge’s instructions. I do not agree as a

correct

instruction

regarding

what

conduct

constitutes—the definition of sexual harassment—

was a required instruction in this case and waiver

does not apply to required instructions. The military

judge provided the panel members with a definition in

his findings instructions. This instruction was

inconsistent with every definition available at the

time of the alleged conduct and by its terms changed

the nature of the criminal conduct. It further

contradicted the definition provided to the members

in PE 13, and Attachment 1, which was not provided

to the members, but which was addressed by the

military judge during the court-martial. Effectively,

the military judge provided the members an

instruction which tasked them with deciding

culpability on a theory with which Appellant was not

charged such that no rational trier of fact could have

found the essential elements of the charged crime

beyond a reasonable doubt.

Failure to provide correct and complete

instructions to the members before deliberations

begin may amount to a denial of due process. The

military judge struggled with the partial definition of

sexual harassment the Government offered, which

was found in PE 13. It is a partial definition because,

as the military judge pointed out, “the excerpt that the

[G]overnment [ ] provided has, in one of the relevant

paragraphs, a reference [ ] to ‘See Attachment 1 for

52a

full definition’ and then there’s no Attachment 1 in

[PE 13].” The panel members never saw Attachment

1, yet Attachment 1 included a full definition of what

the Air Force considered to be sexual harassment in

this 2010 version of AFI 36-2706. Importantly, the

definition in Attachment 1 of AFI 36-2706, which was

based on Title VII of the Civil Rights Act of 1964,

required conduct amounting to sexual harassment be

directly tied to some negative effect on the job, pay,

career, or workplace environment of the person

harassed. This connection is necessary in order to

equate one’s conduct to criminal sexual harassment.

The military judge seemingly used the definition of

sexual harassment in Attachment 1 to PE 13 as the

basis or template for the findings instructions he

drafted and ultimately provided to the members.

Attachment 1 states in relevant part: “Unwelcome

sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature

constitute sexual harassment when . . . .” AFI 36-2706

(5 Oct. 2010), Attachment 1 (emphasis added).

However, the military judge made two fatal

changes to the wording and structure of the definition

in Attachment 1 when drafting his instructions to

members, which in relevant part read: “‘Sexual

harassment’ means nonconsensual sexual advances

and nonconsensual requests for sexual favors.”

(Emphasis added).

The instruction as drafted by the military judge is

an incorrect statement of the law. First, when the

military judge substituted “nonconsensual” from

“unwanted,” a change made even in light of the

Government’s strong objection to the changed

language, he fundamentally changed the standard the

53a

members would use to determine Appellant’s

culpability. The military judge declined Government’s

request to use the language as set forth in statute and

as reflected in Attachment 1 of the 2010 AFI ruling

that “unwanted” is a lower standard than

“nonconsensual,” apparently justifying his decision to

change the standard for the charged offense by

strapping the Government with, in his opinion, a

higher standard of proof.

I agree with Appellant that “unwelcome” and

“nonconsensual” are not legally equivalent.

Nonconsensual is a term used in sexual assault cases,

not charges alleging criminal sexual harassment. Our

superior court in analyzing alleged sexual harassment

in the workplace has recognized that amongst

military members there is a “wide variety of reactions

to comments of a personal or sexual nature.” United

States v. Brown, 55 M.J. 375, 385 (C.A.A.F. 2001).

When analyzing an Air Force regulation defining

sexual harassment, the court focused on unwelcomed

comments finding, “[I]t is necessary to examine the

nature of the interaction between the parties to the

conversation[s] to determine whether the person

making the remarks had a reasonable notice that the

comments would be regarded as unwelcome . . . .” Id.

They also recognized that “given the wide variety of

personalities present in the service, co-workers may

be offended from time to time by the behavior of their

colleagues. But offensive conduct does not necessarily

constitute criminal conduct.” Id. In effect at the time

of the charged offense, Article 93, UCMJ, 10 U.S.C.

§ 893, measured sexual harassment “by an objective

standard.” The court in Brown further found that the

pamphlet at issue in Brown defining sexual

harassment “appropriately sets a higher standard,

54a

requiring that the [unwelcome] conduct be so severe

or pervasive that it creates a hostile work

environment,” clearly tying criminal sexual

harassment to the work environment. Id. Simply put,

an allegation of criminal sexual harassment requires

a

showing

of

“unwanted”

conduct,

not

“nonconsensual” conduct and whatever the military

judge’s reasoning for changing the language in his

instruction, it was improper.

Even more detrimental to a proper instruction on

the definition of sexual harassment is when the

military judge starts out his instruction on this issue

with: ‘“Sexual harassment’ means nonconsensual

sexual advances and nonconsensual requests for

sexual favors.” This premature imposition of a period

after “requests for sexual favors”—where there should

have been a comma so that such conduct was

necessarily tied to the qualifiers in (1)–(3), the

essential elements that make such conduct sexual

harassment—makes this even more problematic. This

definition

instructing

the

members

that

nonconsensual sexual advances and nonconsensual

requests for sexual favors alone is enough to

determine Appellant engaged in sexual harassment

invited the members to convict Appellant of a crime

for which he was not charged—namely sexual assault,

pursuant to Article 120, UCMJ, 10 U.S.C. § 920. 23

In this connection, the military judge provided an

instruction on “reasonable mistake of fact,” which has

23 Article 120(b), UCMJ, Sexual Assault, states that “[a]ny

person subject to [the UCMJ] who . . . commits a sexual act upon

another person . . . without the consent of the other person . . . is

guilty of sexual assault and shall be punished as a court-martial

may direct.” 10 U.S.C. § 920(b)(2)(A).

55a

no applicability in a dereliction of duty for sexual

harassment case and further confused the issues the

members were tasked to decide. Further, trial counsel

emphasized the military judge’s mistakes and argued

strenuously in favor of the military judge’s

instructions telling the members, “The judge

instructed you that nonconsensual sexual advances

and nonconsensual requests for services—requests for

sexual favors, that’s sexual harassment. That’s one

way that there could be sexual harassment.” Indeed,

the military judge did provide such instructions, but

these instructions were an incorrect statement on the

definition of sexual harassment and the law

applicable to the Charge against Appellant amounting

to a due process violation. This violation was not

inconsequential as the military judge himself

recognized when he opined, “I told them[, the

members,] so many times that I instruct you what the

law is,” recognizing his instructions are paramount to

the members decision making process.

Where an instructional error raises constitutional

implications, our superior court has traditionally

tested the error for prejudice using a ‘“harmless

beyond a reasonable doubt’ standard.” Davis, 73 M.J.

at 271 (C.A.A.F. 2014) (quoting Wolford, 62 M.J. at

420). The test for determining if the error was

harmless beyond a reasonable doubt is “whether,

beyond a reasonable doubt, the error did not

contribute to the [accused’s] conviction or sentence.”

Prasad, 80 M.J. at 29 (citation omitted). In this case,

where the military judge crafted an instruction that

invited the members to convict Appellant on an

uncharged theory, namely Article 120 sexual assault,

which improperly divorced the sexual advances or

requests for sexual favors from the required element

56a

of affecting one’s job, employment, or career

development, rather than on the basis of the actual

charged offense, such instruction created a due

process violation. Switching “unwanted” for

“nonconsensual” further confused the theory of the

offense upon which the members were instructed. One

cannot say the instructional errors did not improperly

contribute to Appellant’s conviction, possibly on an

uncharged theory. I am not confident that a

constitutional error did not taint the proceedings and

thus, I find prejudice. See id. at 29. Under the

circumstances of this case, I find the instructional

error was a due process violation which was not

harmless beyond a reasonable doubt and rendered

Appellant’s conviction legally insufficient.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

57a

10 U.S.C. § 892, Article 92, UCMJ

§ 892. Art. 92. Failure to Obey Order or Regulation

a. Text of statute.

Any person subject to this chapter who—

(1) violates or fails to obey any lawful general

order or regulation;

(2) having knowledge of any other lawful order

issued by a member of the armed forces, which it is his

duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties;

shall be punished as a court-martial may direct.

R.C.M. 920(e)(1), (f)

Rule 920. Instructions on findings

(e) Required instructions. Instructions on findings

shall include:

(1) A description of the elements of each offense

charged[.]

(f) Forfeiture and objections. Failure to object to an

instruction or to omission of an instruction before the

members close to deliberate forfeits the objection.

R.C.M. 920(g) (2023)

Rule 920. Instructions on findings

58a

(g) Waiver. Instructions on a lesser included

offense shall not be given when both parties waive

such an instruction. After receiving applicable

notification of those lesser included offenses of which

an accused may be convicted, the parties may waive

the reading of a lesser included offense instruction. A

written waiver is not required. The accused must

affirmatively acknowledge that the accused

understands the rights involved and affirmatively

waive the instruction on the record. The accused’s

waiver must be made freely, knowingly, and

intelligently.

Department

of

Defense

Instruction

1020.03,

Harassment Prevention and Response in the Armed

Forces (February 8, 2018), para. 3.3.a.

3.3. Sexual Harassment

a. Sexual harassment is:

(1) Conduct that:

(a) Involves unwelcome sexual advances,

requests for sexual favors, and deliberate or

repeated offensive comments or gestures of a sexual

nature when:

1. Submission to such conduct is made

either explicitly or implicitly a term or condition of

a person’s job, pay, or career;

2. Submission to or rejection of such

conduct by a person is used as a basis for career or

employment decisions affecting that person; or

59a

3. Such conduct has the purpose or effect

of unreasonably interfering with an individual’s

work performance or creates an intimidating,

hostile, or offensive environment; and

(b) Is so severe or pervasive that a

reasonable person would perceive, and the victim

does perceive, the environment as hostile or

offensive.

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