OPINION OF THE COURT
A general court-martial sitting with members convicted appellant of engaging in conduct unbecoming an officer by having a close
Before us, aрpellant contends the specification alleging the conduct unbecoming offense was improperly amended before trial and the evidence is legally and factually insufficient to prove his guilt. We find the amendment lawful and the evidence sufficiеnt.
FACTS
Appellant met Senior Airman Tracy Davis (then named Dirksen) at her duty location in the personnel office at Grand Forks Air Force Base, North Dakota, when he processed into the base in July or August 1992. She helped him with some personnel matters incident to his assignment orders before he left for temporary duty in September 1992. While away, he sent Airman Davis a postcard.
Appellant returned to Grand Forks in February 1993. Sometime during the spring, he ran into Airman Davis at a local lumber store, and she introduced him to her husband. Later that same evening, Airman Davis telephoned appellant and invited him to dine and play cards with her, her husband, and another airman friend. Appellant accepted.
During the card game, appellant played as Airman Davis’ partner, and she occasionally referred to him as “Al.” All went well until Airman Davis’ husband, Senior Airman Dirk-sen, dropped a card on the floor. When he went to pick it up, he saw Airman Davis’ bare foot resting on the seat of appellant’s chair between his legs. Upset, Airman Dirk-sen stopped thе game.
Appellant also visited and telephoned Airman Davis at work. Senior Airman Bielinski, a co-worker and friend of Airman Davis, recalled that appellant and Airman Davis talked on the phone at least every other day. Airman Bielinski overheard Airman Dаvis refer to appellant “affectionately” during some calls and end them by saying she “loved him.” In June or July 1993, Airman Bielinski went with Davis to appellant’s residence. Appellant was not home, but they went inside because Davis had a key. When appellant arrived, hе hugged Davis and kissed her on the lips. As Bielinski and Davis left, appellant gave Davis an “open-mouth” kiss and “both said that they loved each other.”
Sometime between the card game and November 1993, Airman Davis and Airman Dirksen separated due to marital difficulties. Shе stored personal property at appellant’s quarters and spent the night there on at least two occasions. In November 1993, Airman Davis and her husband briefly reconciled, and he went with her to appellant’s residence to retrieve some рersonal items and furniture.
Several officers testified they routinely saw Airman Davis at appellant’s apartment, sometimes late at night. Second Lieutenant Waller, one of appellant’s friends, became concerned about the relationshiр. He told appellant that “he would probably be better off if he went and talked to somebody” about it because he wasn’t sure if appellant was “going beyond the scope of fraternization or what the perceived policy of fraternizаtion was.”
Appellant put a different spin on the facts. He contended Airman Davis was a “platonic” friend whom he “comforted” during marital problems before her divorce on January 6, 1994. He denied any romantic activity, and said she spent the night at his residence once because of a blizzard and a second time due to car problems.
AMENDMENT TO THE SPECIFICATION
As charged and referred to trial, the specification pleading the conduct unbecoming offense alleged that on “divers occasions” appellant did “from on or about 1 August 1992 to on or about 15 March 1994, wrongfully and dishonorably have a close personal relationship to include hugging and kissing with Senior Airman Tracy L. Davis.” The specifi
Before trial, the prosecutor, at the convening authority’s direction, amended the conduct unbecoming specification tо (1) shorten the ending date to “6 January 1994,” (2) add that the relationship was displayed “openly,” and (3) describe Airman Davis’ marital status. At trial, appellant moved to dismiss the “openly” and marital status amendments as improper “major” changes because they changed the nature of the offense from a “fraternization type” offense to another form of conduct unbecoming offense. Although the record is not clear when appellant learned of the amendment, he did not claim surprise or request a dеlay to revise his defense strategy.
The prosecutor countered that the government always saw that appellant’s conduct raised two different offenses: one for fraternization based on appellant’s relationship with an enlisted member, and another for conduct unbecoming an officer, based on his relationship with a female enlisted member who was married to another enlisted member. The prosecutor explained that the “6 January” date reflected Airman Davis’ date of divorcе, and the other amendments were “minor” changes which would merely narrow the court’s focus on the distinction between the two offenses. The military judge agreed and denied relief.
The Law
Before arraignment, a prosecutor may make “minor” changes to spеcifications without restriction. R.C.M. 603(b). However, a prosecutor may not make “major” changes, over an accused’s objection, without re-preferring the offense. R.C.M. 603(d). “Minor” changes include those that do not add (1) a party, (2) an offense, or (3) substantial mаtter not included in the charged offense, or (4) are likely to mislead the accused. R.C.M. 603(a). See also United States v. Sullivan,
For instance, an amendment is a major change when it converts a specification which did not allege an offense into one that does. United States v. Garrett,
Discussion
We conclude thе amendments to the specification were minor changes. First, we are satisfied that a specification which alleges that a male officer wrongfully and dishonorably had a close personal relationship with a female enlisted member statеs an offense under military law. See United States v. Boyett,
Second, the amendments did not change the means, or way, thе basic offense was alleged to have occurred, that is through a “close personal relationship to include hugging and kissing.” Nor did they increase the maximum punishment. See Murray.
Third, the amendments did not modify the identity of the parties. The marital status revision merely narrowed the focus of the prosecution’s case, and added descriptive information which appellate defense counsel conceded in oral argument was already admissible at trial to prove the wrongful and dishonorable nature of apрellant’s conduct.
Finally, the amendments did not add substantial matter not included in the charged
The Caveat
Although we have concluded that the amendments hеre were minor, we caution prosecutors and staff judge advocates to tread softly when amending specifications to add significant matters without re-swearing the offenses.
An accused has an enforceable right to be tried only on sworn chargеs, a right our amendment rules is designed to protect. See Longmire; United States v. Miller,
As appellate government counsel cordially conceded during argument, re-preferral and re-referral of the amended specification would not have cost the government much delay or effort in this case, particularly when compared to the length of time and work the appellate issue involving it has cost. For example, a new pretrial investigation was not required since the subject matter of the “new” specification was alreаdy covered by an earlier investigation. Article 32, UCMJ; R.C.M. 405(b). At most, service of the “new” specification may have caused a 5-day delay in proceeding to trial due to the statutory waiting period, which appellant could’ve waived. Article 35, UCMJ, 10 U.S.C. § 835.
LEGAL AND FACTUAL SUFFICIENCY
Of course, we recognize that pleading an offense properly and proving criminal conduct in fact occurred are horses of a different color. That brings us to the next issue. Compare Boyett (upholding male Air Force lieutenant’s guilty plea to conduct unbecoming an officer by engaging in “unprofessional close personal social relationship, including sexual intercourse” with female airman) with United States v. Guaglione,
Aрpellant contends the evidence is not sufficient to prove his guilt of any offense because neither Airman Davis nor her husband fell within his chain of command or supervision, and evidence of a sexual relationship is lacking since Airman Davis did not testify. We disagrеe.
Conduct unbecoming an officer includes behavior in an unofficial or personal capacity, which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer. Manual for Courts-Marital, United Statеs, 1984, Part IV, ¶ 59c(2). An officer’s close personal relationship with an enlisted member or the spouse of an enlisted member may fall within that prohibited behavior. United States v. Dean,
For example, “conduct of an officer which substantially denigrates the marital relationship of аn enlisted subordinate or exhibits flagrant disrespect for an enlisted man’s family severely erodes confidence in command and, thus, unquestionably constitutes conduct unbecoming an officer.” Frazier,
In this regard, we reject appellant’s “Good Samaritan” defense. We conclude the witnesses described a boyfriend-girlfriend relationship with an enlisted female which compromised appellant’s standing as an officer. Appellant conceded on cross-examination that “rumors” existed that his relationship with Airman Davis was more than friendship and could’ve undermined his ability to lead as an officer. Likewise, he also had to backpedal from his earlier pretrial statements conceding only friendly kisses to Airman Dаvis’ cheek. “[A] reasonable military officer would have no doubt that the activities charged in this case constituted conduct unbecoming an officer.” Frazier,
Consequently, we are convinced of the legal and factual sufficiency of the evidence to support the conviction. United States v. Turner,
AFFIRMED.