Petition for Writ of Certiorari — Hanson v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

NEIL J. HANSON,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

RONALD A. GREGORY

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Office

of The Judge Advocate

General

United States Air Force

APRIL 1991 Counsel for Petiitoner

QUESTION PRESENTED

Whether the court’s refusal to instruct on a potential

defense raised by the evidence and requested by the pe-

titioner rendered the instructions factually and legally

insufficient and deprived the petitioner of due process of

law.

(i)

TABLE OF CONTENTS

Page

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Reasons for Granting the Writ .............00000.....-.2002000..2.eee. 4

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TABLE OF AUTHORITIES

Cases:

Taylor v. Kentucky, 486 U.S. 478 (1978) ............. 4,6

Jacobellis v. Ohio, 8378 U.S. 184 (1964) 20000... 6

Bird v. United States, 180 U.S. 356 (1901) ............ 4,5, 6

United States v. Garner, 529 F.2d 962 (1976) ....... 4

United States v. Hanson, No. 65335/AF (C.M.A.

I sccemanmnhinancsinnnn 1, 3, 4

United States v. Hanson, 30 M.J. 1198 (A.F.C.M.R.

a cairmminsdincinininhne 1, 3, 4, 5, 6

United States v. DuBose, 19 M.J. 877 (A.F.C.M.R.

1985), pet. denied, 21 M.J. 147 (C.M.A. 1985)... 5

Constitutional and Statutory Authorities:

United States Constitution Amendment V\ ............ 2,6

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a aennndannaniaananusnmanenaden 2,3

ans nanioumenmenneboaunante 2,3

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I a aa iat naunaianianes 1

Uniform Code of Military Justice:

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IN THE

Supreme Court of the United States

OCTOBER TERM; 1990

NEIL J. HANSON,

’ Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Neil J. Hanson, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on January 14, 1991.

OPINIONS BELOW

The order of the United States Court of Military

Appeals granting review and affirming the lower court’s

decision is reported at M.J. , No. 65335/AF

(C.M.A. Jan. 14, 1991). (Appendix A). The decision of

the United States Air Force Court of Military Review is

reported at 30 M.J. 1198 (A.F.C.M.R. 1990). (Appendix

B).

JURISDICTION

The judgment of the United States Court of Military

Appeals was entered on January 14, 1991. The jurisdic-

tion of this Court is invoked under 10 U.S.C. § 867a and

28 U.S.C. § 125913).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment provides:

No person shall be . . . deprived of life, liberty or

property, without due process of law...

Article 51(¢c), U.C.M.J., 10 U.S.C. § 851(c), provides:

Before a vote is taken on the findings, the military

judge . . . shall, in the presence of the accused and

counsel, instruct the members of the court as to the

elements of the offense and charge them—

(1) that the accused must be presumed to be inno-

cent until his guilt is established by legal and compe-

tent evidence beyond a resonable doubt;

(2) that in the case being considered, if there is a

reasonable doubt as to the guilt of the accused, the

doubt must be resolved in favor of the accused and

he must be acquitted;

(3) that, if there is a reasonable doubt as to the de-

gree of guilt, the finding must be in a lower degree

as to which there is no reasonable doubt; and

(4) that the burden of proof to establish the guilt of

the accused beyond reasonable doubt is upon the

United States.

Article 93, U.C.M.J., 10 U.S.C. § 893, provides:

Any person subject to this chapter who is guilty of

cruelty toward, or oppression or maltreatment of,

any person subject to his orders shall be punished

as a court-martial may direct.

Article 133, U.C.M.J., 10 U.S.C. § 933, provides:

Any commissioned officer . . . who is convicted of

conduct unbecoming an officer and a gentleman shall

be punished as a court-martial may direct.

STATEMENT OF THE CASE

Contrary to his pleas the petitioner was convicted by

general court-martial of one specification of indecent ex-

3

posure and two specifications of conduct unbecoming an

officer and a gentleman by maltreatment of subordinates

through the use of offensive and indecent gestures and

language in violation of Articles 134 and 133, Uniform

Code of Military Justice, 10 U.S.C. §$§ 934 and 933, re

spectively. He was sentenced to a dismissal, confinement

for six (6) months, and ferfeiture of $1,269.45 pay per

month for six (6) months. The convening authority

approved the sentence as adjudged on September 6, 1989.

The United States Air Force Court of Military Review

affirmed the findings and sentence, as modified by reducing

the forfeitures to a whole dollar amount, on June 18, 1990.

United States v. Hanson, 30 M.J. 1198 (A.F.C.M.R.

1990). (Appendix B). The United States Court of Mili-

tary Appeals granted review and affirmed the lower

court’s decision without discussion. United States v. Han-

son, No. 65335/AF (C.M.A. Jan. 14, 1991) (order grant-

ing review and affirming decision below). (Appendix A).

The substantive offense of maltreatment prohibits

cruelty toward, or oppression or maltreatment of, sub-

ordinates. Article 93, U.C.M.J., 10 U.S.C. § 893. The

petitioner’s status as a commissioned officer properly

brought this substantive offense within the ambit of con-

duct unbecoming an officer and a gentleman and was so

charged by the United States. On appeal the petitioner

disputes the trial judge’s refusal to instruct on a poten-

tial defense to this charge.

The words and acts alleged as maltreatment occurred

in a military office where the petitioner supervised four

noncommissioned officers alleged as the victims. The

words and acts used by the petitioner had sexual over-

tones. In his defense of the maltreatment charge the

petitioner testified that he used the charged words and

actions in jest as a management technique designed to

boost morale in the office. He perceived the other service

members in the shop as responding in jest. Hanson, 30

M.J. at 1200. The record shows these service members

4

did not take the petitioner’s words and acts at their

literal meaning, but were sometimes offended by them.

Td. at 1201.

The petitioner requested the military judge to instruct

that acts or words made and perceived in jest do not

constitute maltreatment. The military judge refused, stat-

ing that the effect of joking on the issue of maltreatment

was more properly a subject for argument. Hanson, 30

M.J. at 1200-01. On the issue of maltreatment he in-

structed in part as follows:

You are advised that the maltreatment must be real,

although it does not have to be physical. The word

“maltreated” refers to unwarranted, harmful, abu-

sive, rough or other unjustifiable treatment which,

under all the circumstances, results in physical or

mental pain or suffering and is unwarranted, un-

Justified, and unnecessary for any lawful purpose.

Id. at 1202 n.2. The United States Air Force Court of

Military Review found this instruction factually adequate

and legally correct. Jd. at 1201-02. The United States

Court of Military Appeals affirmed for the reasons stated

by the lower court. Hanson, No. 65335/AF (C.M.A.

Jan. 14, 1991).

REASONS FOR GRANTING THE WRIT

The decision of the United States Air Force Court of

Military Review as affirmed by the United States Court

of Military Appeals conflicts with applicable-decisions of

this Honorable Court. A criminal defendant is entitled to

a full statement of the law from the court. Bird v. United

States, 180 U.S. 356, 361 (1901). Refusal to adequately

instruct on the defendant’s theory of the case constitutes

reversible error. Jd.; United States v. Garner, 529 F.2d

962 (1976). Moreover, arguments of counsel cannot sub-

stitute for adequate instructions. Taylor v. Kentucky, 436

U.S. 478, 488-89 (1978). Congress mandated that a mili-

tary judge instruct on the elements of the offense and the

5

presumption of innocence. Article 51(c), U.C.MJ., 10

U.S.C. § 851(c). In the case sub judice the court’s re-

fusal to instruct on the defense theory of the case ren-

dered the instructions inadequate and deprived the peti-

tioner of due process of law.

The United States Court of Military Appeals endorsed

the lower court’s reliance on United States v. DuBose, 19

M.J. 877 (A.F.C.M.R. 1985), pet. denied, 21 M.J. 147

(C.M.A. 1985). DuBose established a three-part test to

evaluate proposed instructions: 1) the evidence must ade

quately raise the issue; 2) the proposed instruction need

not be given if adequately covered in other instructions;

and 3) the proposed instruction must accurately state the

law and its application to the case. Hanson, 30 M.J. at

1201 (citing DuBose, 19 M.J. at 879). Applying the

DuBose test, the court below concluded that the requested

instruction was “incomplete and misleading.” Jd. The

court reasoned, “The issue is not whether the appellant

was joking or perceived as joking, but rather whether his

conduct rose to the level of maltreatment because of its

abusive nature.” Jd.

The requested instruction explained the petitioner’s

theory of the case: the petitioner’s subordinates suffered

no maltreatment if they perceived the petitioner’s words

and acts as nothing more than jest. Indeed, this was the

petitioner’s sole defense to this charge. The petitioner

raised this defense through cross-examination as well as

his own testimony. Whether the defense would be suc-

cessful does not determine whether the instruction should

be given. See Bird, 180 U.S. at 362; DuBose, 19 M.J. at

879.

Although the instruction given by the court required

that the maltreatment be real, the instruction did not ex-

plain the effect of jesting on the charge. Hanson, 30 M.J.

at 1202 n.2. The court below recognized the difficulty in

distinguishing office banter from criminal conduct:

6

Appropriate conduct can only be discerned by exami-

nation of the relevant surrounding circumstances.

For example, what is condoned in a_ professional

athletes’ locker room may well be offensive in a house

of worship. A certain amount of banter and even

profanity in a military office is normally acceptable

and, even when done in “‘poor taste,” will only rarely

rise to the level of criminal misconduct. But just as

Justice Stewart knew obscenity when he saw it,*

we find it clear from the totality of the appellant’s

actions that his conduct was so abusive and un-

warranted as to support his conviction for maltreat-

ment.

* Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683,

12 L.Ed.2d 793, 804 (1964), Stewart, J., concurring.

Id. at 1201. The petitioner’s requested instruction was

needed to help the trier of fact make this difficult deter-

mination. Allowing counsel to argue the theory did not

substitute for a complete instruction. Taylor, 436 U.S. at

488-89. Under these circumstances the petitioner’s re-

quested instruction was essential to a fair trial. U.S.

Const. amend. V; see Bird, 180 U.S. at 362.

CONCLUSION

The decision of the United States Air Force Court of

Military Review as affirmed by the United States Court

of Military Appeals conflicts with applicable decisions of

this Honorable Court guaranteeng to a criminal defen-

dant the right to a full statement of the law from the

court. The petitioner respectfully prays that a writ of

certiorari be issued to review the decision of the United

States Court of Military Appeals.

etait aia

7

Respectfully submitted,

RONALD A. GREGORY

Major, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

JEFFREY R. OWENS

Lieutenant Colonel, Office

of The Judge Advocate

General

United States Air Force

APRIL 1991 Counsel for Petiitoner

APPENDICES

_

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 65335/AF

CMR Dkt. No. 28003

UNITED STATES,

Appellee

v.

NEIL J. HANSON (506-80-7824) ,

Appellant

ORDER

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of

Military Review, it is by the Court, this 14th day of

January, 1991

ORDERED:

That said petition is hereby granted on the issues

raised by appellate defense counsel; and

That the decision of the United States Air Force Court

of Military Review is affirmed for the reasons stated

therein. United States v. Hanson, 30 MJ 1198 (AFCMR

1990).

For the Court,

/s/ John A, Cutts, III

Deputy Clerk of the Court

ee: The Judge Advocate General of the Air Force

Appellate Defense Counsel (GREGORY )

Appellate Government Counsel (HOLLIS)

2a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

V.

Captain NEIL J. HANSON, 506-80-7824

UNITED STATES AIR FORCE

ACM 28003

18 June 1990

Sentence adjudged 29 June 1989 by GCM con-

vened at Chanute Air Force Base, Illinois. Mili-

tary Judge: Matt C. C. Bristol.

Approved sentence: Dismissal, confinement for

six (6) months and forfeiture of one thousand

two hundred sixty-nine dollars and forty-five

cents ($1,269.45) pay per month for six (6)

months.

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Captain Ronald A. Gregory. Appellate

Counsel for the United States: Colonel Joe R. Lamport,

Major Terry M. Petrie and Captain James C. Sinwell.

Before

LEONARD, MURDOCK and RIVES

Appellate Military Judges

DECISION

3a

RIVES, Judge:

Contrary to his pleas, the appellant was found guilty

by a panel of officers of two basic offenses: maltreatment

of subordinate noncommissioned officers and indecent ex-

posure to an eight-year old girl. He was sentenced to a

dismissal, confinement for six months and forfeiture of

$1,269.45 pay per month for six months. He alleges that

instructional error led to his conviction of the maltreat-

ment offenses and asserts that the evidence was insuffi-

cient to support his conviction of indecent exposure. We

decide against him on both issues.

The appellant began his service in 1980 as a public af-

fairs officer. He became an Air Force recruiter in 1982,

and the evidence at trial established him to be a hard-

working officer who produced good results. The record

also shows, however, that the appellant had very unusual

methods of interacting with his subordinates.

From March 1986 through July 1988, the appellant

served as Chief of the Advertising and Publicity Branch

for the USAF Recruiting Squadron in Elwood, Illinois.

Technical Sergeant Lyle Hannah (a male) served under

his supervision during this period of time. Apparently

because of his desire to become friendly with his sub-

ordinate, the appellant began winking at Hannah. When

he was talking on the phone, Hannah heard him say,

“Yeah, Lyle’s right here. He’s under my desk... .”’ The

appellant would make statements such as: “Lyle, I got

a big throbbing member,” and grab himself in the groin

area.

On one oceasion, the appellant called Hannah into his

office, purportedly to remove a mouse from under his

desk. When Hannah went to the deskwell area, the ap-

pellant pushed him down, slid his chair forward, and

began gyrating his pelvis as though “having a sexual ex-

perience with the chair.’”’ The appellant had Hannah

blocked under the desk and resisted his efforts to get

4a

out. Hannah began to yell at the appellant, became

“furious,” and eventually was allowed out. Hannah stated

that he was so angered by the appellant’s actions that

if he “had a gun, [he]’d probably have shot him.”

In September 1988, the appellant was transferred to

the Recruiting Group at Chanute Air Force Base, Illinois.

During the two months he was assigned to that office, he

would repeatedly make such remarks as: “I have a big

one for you,” “blow me,” “suck my dick,” “get under my

desk,” and a variety of similar (and more vulgar) re-

marks to his noncommissioned officer subordinates. While

making such comments, he would frequently clutch his

groin area. He would normally make the statements in

the presence of four NCOs, one of whom was a female.

He acted in such a manner “|e]veryday, several times 2

day.” His subordinates were bewildered by his actions.

When one of the NCOs asked the appellant if he was

“ever gay?”, he responded by bending over and spread-

ing the cheeks of his buttocks, while in his military uni-

form.

At trial, the appellant admitted substantially all the

language and acts attributed to him by the government

witnesses. He stated, however, that recruiting is an

“isolated . . . special duty assignment,” that NCOs could

“make or break” an officer, and that he chose to joke and

be informal in order to establish good relationships with

his subordinates. While he was uncomfortable testifying

in court about his statements and actions, he did not be-

lieve they were inappropriate in the office environment.

The noncommissioned officers who served under him, how-

ever, found the appellant’s words and acts to be disrup-

tive, embarrassing, and vulgar. They testified that the

appellant’s actions detracted from his position, lowered

morale, and caused them to lose respect for him as their

officer-in-charge.

5a

I

Concerning the charges of maltreatment, trial defense

counsel asked the military judge to instruct the members

that “facts or conduct made in jest, or as a joke may not

constitute maltreatment.” The trial judge determined

that this was an area properly left for argument, and

he refused to give the proposed instruction. The appel-

lant now asserts as error the failure of the judge to in-

struct that “acts or words made and perceived in jest do

not constitute maltreatment.” We hold that the judge

correctly and full instructed the members and that he

properly declined to provide the requested instruction.

A military judge is obliged to “give the members ap-

propriate instructions on findings.” R.C.M. 920(a).

United States v. Dubose, 19 M.J. 877, 879 (A.F.C.M.R.

1985), pet. denied, 21 M.J. 147 (C.M.A. 1985), sets forth

a three-part test to determine whether a proposed instruc-

tion should be given: (1) the evidence must adequately

raise the issue; (2) the proposed instruction need not be

given if the subject matter is adequately covered in other

instructions; and (3) the proposed instruction must ac-

curately state the law and its application to the case.

The record establishes that the appellant’s subordinates

did not take his acts and words at their literal meaning;

they did not believe that he was seriously inviting them_

to partake in sexual activities. On the other hand, their

testimony establishes that they were very offended by his

words and conduct. The appellant took advantage of his

position as a military superior and subjected his subordi-

nates to an extended period of inappropriate, abusive

treatment. The instruction requested by the defense is

incomplete and misleading. The issue is not whether the

appellant was joking or perceived as joking, but rather

whether his conduct rose to the level of maltreatment

because of its abusive nature.

Maltreatment is a general intent crime. United States

v. Piatt, 17 M.J. 442, 445 (C.M.A. 1984) ; United States

6a

v. Welsh, 15 C.M.R. 573, 574 (N.B.R. 1954). The intent

which establishes the offense in this case is contained in

the language and actions which were expressed, regard-

less of any intent the appellant may have subjectively

possessed. See United States v. Gilluly, 13 U.S.C.M.A.

458, 461, 32 C.M.R. 458, 461 (1963). The essence of the

offense is not necessarily dependent on what a military

superior may intend by words or acts. The offense occurs

when the treatment, viewed objectively, results in physi-

cal or mental pain or suffering and is abusive or other-

wise unwarranted, unjustified and unnecessary for any

lawful purpose. MCM, Part IV, paragraph 17(c) (2)

(1984); DA Pamphlet 27-9, Military Judges’ Benchbook,

paragraph 3-3lb, Change 1 (15 February 1985). It has

been observed that “the offense of maltreatment must be

real, although not necessarily physical, cruel or inhuman

and the act or acts alleged must be toward a person sub-

ject to orders of the accused.” United States v. Finch, 22

C.M.R. 698, 701 (N.B.R. 1956).

Assuming arguendo that the appellant was merely jok-

ing and only intended to set up “informal and effective”

office relationships, how can his conduct rise to the level

of actionable offenses? Appropriate conduct can only be

discerned by examination of the relevant surrounding

circumstances. For example, what is condoned in a pro-

fessional athletes’ locker room may well be highly offen-

sive in a house of worship. A certain amount of banter

and even profanity in a military office is normally ac-

ceptable and, even when done in “poor taste,” will only

rarely rise to the level of criminal misconduct. But just

as Justice Stewart knew obscenity when he saw it,’ we

find it clear from the totality of the appellant’s actions

that his conduct was so abusive and unwarranted as to

support his conviction for maltreatment.

1 Jacobellis v. Ohio, 378 U.S. 184, 197; 84 S.Ct. 1676, 1683; 12

L.Ed.2d 793, 804 (1964), Stewart, J., concurring.

7a

By our ruling today, we do not hold that any single

offensive comment to or action against a military subordi-

nate will necessarily constitute a criminal offense. We do

find, however, that the appellant’s conduct amounts to

maltreatment as envisioned by Article 93. Over a two

and a half year period, he engaged in a course of conduct

that evinced callous disregard for the sensitivities and

self-esteem of his military subordinates. Desite the con-

tentions of the captain-appellant that he was merely “jok-

ing,’’ the noncommissioned officer victims of his abusive

conduct were entitled to protection from such offensive

conduct. In this case, the maltreatment was properly

charged as a violation of Article 133 because the appel-

lant’s misconduct compromised his standing as an officer

and his character as a gentleman. United States v. Smith,

16 M.J. 694 (A.F.C.M.R. 1983).

We thus determine that the requested instruction was

not in itself a correct charge, and also that its subject

matter was substantially covered in the instruction

given.” United States v. Dubose, 19 M.J. at 879; United

States v. Aker, 19 M.J. 733, 734 (A.F.C.M.R. 1984).

Accordingly, the military judge properly refused to give

it.

II

The appellant next urges that the evidence underlying

his conviction for indecent exposure is insufficient. A

brief review of the relevant facts is appropritae.

On 11 October 1988, an eight-year old girl was at the

appellant’s house playing with his daughter, a classmate

2In the relevant portion of his charge to the members, the mili-

tary judge instructed that:

You are advised that the maltreatment must be real, although

it does not have to be physical. The word “maltreated” refers

to unwarranted, harmful, abusive, rough or other unjustifiable

treatment which, under all the circumstances, results in physical

or mental pain or suffering and is unwarranted, unjustified, and

unnecessary for any lawful purpose.

8a

from school. Around 2000, the appellant drove the girl

home. Only the two of them were in the car and the

drive took less than ten minutes. When they reached the

girl’s house, the appellant walked the girl inside and told

the girl’s mother what a pleasure it had been to have the

girl visit. As soon as the appellant left the house, the

girl told her mother that she had seen the appellant’s

‘“wiener.”’ When her mother asked if she meant that she

had merely seen it through the appellant’s pants, the girl

answered “no,” that it was “sticking straight up.”

According to the girl’s testimony, as they were driving

to her home the appellant turned on the car’s dome light

and when she looked toward him she saw his penis. His

pants and underwear had been lowered to just above

his knees. As they neared her house, she heard his zipper

go up. In direct contravention of this evidence, the appel-

lant testified that the ride had been uneventful. He said

that‘he did not at any time expose himself to the girl.

Proof beyond a reasonable doubt, “does not mean that

the evidence must be free of conflict.” United States v.

Steward, 18 M.J. 506, 508 (A.F.C.M.R. 1984). A charge

involving indecent exposure to a child will almost in-

variably be reduced to a one-on-one confrontation, as there

are ordinarily no witnesses to the incident. The deter-

mination of guilt in this case ultimately depended upon

the weight the members chose to give to the conflicting

testimony of the girl and the appellant. See United States

v. Lecappelain, 9 M.J. 562 (A.F.C.M.R. 1980).

Under our statutory mandate to review the evidence,

we must “judge the credibility of witnesses, and deter-

mine controverted questions of fact, recognizing that the

trial court saw and heard the witnesses.” Article 66(c),

UCMJ. The members were properly instructed and their

verdict demonstrates that they believed the child victim

and not the appellant. We have examined the record of

trial, and like the trial court, we are convinced beyond

9a

a reasonable doubt that the appellant is guilty of the

charged indecent exposure offense.

The appellant also attacks his conviction for indecent

exposure on the grounds that Article 134, UCMJ, was

not violated because the girl did not know that he was

in the military, and his conduct was therefore neither

prejudicial to good order and discipline nor service dis-

crediting. This claim is without mert. Clearly, the in-

decent exposure was incompatible with military stand-

ards, brings discredit upon the United States Air Force,

and is directly prejudicial to good order and discipline.

See MCM, Part IV, paragraph 60c¢ (1984).

Ill

As a final matter, the appellant notes that the ap-

proved amount of forfeitures is not in the required

“whole dollar” amount. R.C.M. 1003(b) (2); Air Force

Regulation 111-1, Military Justice Guide, paragraph 15-

15(a), Change 2 (12 July 1989). The announced sen-

tence reflects the members’ desire to take exactly half of

the appellant’s pay subject to forfeiture for a six month

period. The members had been properly instructed that

forfeitures must be expressed in a whole dollar amount

and the sentence worksheet provided clear guidance. Be-

fore closing the court, the trial judge noted this discrep-

ancy and advised the members that their sentence in ex-

cess of the whole dollar amount would be “ineffectual.”

The convening authority’s action in approving greater

than the whole dollar amount was eroneous, and we will

correct it in our final paragraph. United States v. Frier-

son, 28 M.J. 501 (A.F.C.M.R. 1989); United States v.

Pierce, 25 M.J. 607 (A.C.M.R. 1987).

IV

The findings of guilty are affirmed. Only so much of

the sentence as provides for dismissal, confinement for

six months, and forfeiture of $1,269.00 pay per month

10a

for six months is affirmed. The approved findings of

guilty and the sentence, as modified, are correct in law

and fact and are

AFFIRMED.

Senior Judges Leonard and Murdock concur.

[SEAL]

OFFICIAL

/s/ Pamela D. Stevenson

PAMELA D. STEVENSON

Captain, USAF

Chief Commissioner

SoU. 8. GOVERNMENT PRINTING OFFice; 1991 292734 62115