Appeals court rules against Coast Guardsman dinged for dong drawing
Stars and Stripes October 25, 2023
A Coast Guardsman’s court-martial conviction connected to him drawing a penis on the forehead of a colleague in a photo, which was shared in a professional group chat, was upheld by the military’s highest court this week.
Chief Petty Officer Fernando Brown, a machinery technician, was convicted in 2019 of disrespecting senior enlisted personnel after he sent a batch of off-color digital messages involving three chief petty officers in a text group called “Chief’s Mess.”
The U.S. Court of Appeals for the Armed Forces’ ruling, released Monday, brings new clarity to how a statute intended to uphold order and discipline applies in the era of digital and social media.
“Sometimes a seemingly simple statute can be devilishly difficult to interpret,” Chief Judge Kevin Ohlson wrote in the majority’s decision.
The statutory language led the five judges to differ on several legal points, even when they arrived at the same conclusion.
Brown was assigned to the U.S. Coast Guard Cutter Polar Star at the time and was part of a text group that involved the ship’s 11 chief petty officers.
The aim of the Chief’s Mess group was to pass along work-related information, because the crew was geographically separated while the cutter was in dry dock.
While the group primarily dealt with work, it also encompassed “some levity” and banter, court documents said.
However, military prosecutors said Brown repeatedly crossed the line. That led to his conviction under Article 91 of the Uniform Code of Military Justice, which prohibits disrespect toward a warrant, noncommissioned or petty officer.
The court’s ruling resolves two key points. First, a 3-2 decision stated that a service member can be convicted of disrespect even if the conduct occurs outside the physical presence of the victim, such as on a digital device or on social media.
A majority also ruled that service members can be held criminally liable only if the disrespectful conduct happens at the same moment the victim is on the job.
At issue in Brown’s case were three instances that involved modified pictures or references to three different chief petty officers.
In one instance, Brown altered a picture of a colleague in the group by adding a “crude drawing of male genitalia” to the person’s forehead and posting it to Chief’s Mess.
The second instance involved a picture of a “scantily clad” man along with a text stating: “Found out why (the chief petty officer) missed chiefs call,” in reference to a skipped meeting.
Brown sent that text at 7:39 p.m., outside of regular duty hours. The chief testified that he found the photo funny when he first saw it, according to case documents.
The third instance occurred when Brown sent a picture of a chief petty officer’s high school yearbook photo with the added caption “Voted most likely to steal your (b----).”
The chief, who identifies as lesbian, was on convalescent leave when she received the message, records stated.
The chief petty officer testified that she felt embarrassed when Brown posted the photo to the group, records stated.
The high court ruled that convictions under Article 91 can stand only if evidence shows that the victims were executing their duties at the time the disrespectful pictures and texts were sent.
Since prosecutors provided no evidence that the woman or the male chief petty officer who received the “scantily clad” photo were on the job, those convictions were dismissed.
In dissent, one judge said the latter conviction should be upheld because participation in the group chat constituted work.
The conviction related to the penis drawing was upheld because evidence showed that the victim was “down in dry dock” and on the job at the time of the text.
The court sent the case back to the lower Coast Guard Court of Criminal Appeals to either reassess Brown’s punishment or order a sentence rehearing.
At his court-martial, Brown was convicted on three counts of disrespect toward a noncommissioned officer and one count of sexual harassment. He was reprimanded and reduced from E-7 to E-4, or petty officer third class.
Later, the Court of Criminal Appeals dismissed the sexual harassment conviction charge but upheld the other convictions. The court reassessed the punishment, reducing Brown to the E-6 pay grade.