## Facts

- A Navy officer, Capt. Edgar Dauphin Free, socialized off-duty with an enlisted Marine, including dinner at a restaurant.
- After dinner, the two drove to multiple locations and drank beer.
- Around 4:00 a.m., Free invited the enlisted Marine to his Bachelor Officers’ Quarters room, offered him whiskey, and offered him a bed to sleep in.
- The enlisted Marine undressed to his underwear, got into the bed, and fell asleep; Free later got into the same bed.
- A general court-martial convicted Free of fraternization under Article 134, UCMJ, as conduct prejudicial to good order and discipline.

## Issues

1. Under Article 134, must wrongful fraternization be defined by a fixed list of prohibited officer–enlisted acts, or may it be determined by a contextual standard based on surrounding circumstances?
2. Whether the evidence was legally sufficient to support a finding that Free’s conduct prejudiced good order and discipline by compromising an enlisted member’s respect for an officer’s integrity and obligations.

## Decision

- The Navy Board of Review affirmed the conviction.
- The Board rejected the view that prejudice to good order and discipline can be determined by an exhaustive catalog of prohibited conduct.
- The Board held that the surrounding circumstances may make conduct prejudicial even if the bare act, viewed in isolation, might not be.
- Applying an objective standard tied to military leadership experience, the Board concluded the evidence permitted a finding that the conduct compromised enlisted respect for the officer role and thereby prejudiced good order and discipline.

## Legal Principles

- It is not feasible to predetermine, with particularity, all acts that are prejudicial to good order and discipline; Article 134 determinations are fact-specific.
- The surrounding circumstances can be more significant than the act itself in deciding whether conduct is prejudicial to good order and discipline.
- Each fraternization case must be decided on its own merits.
- The prejudice inquiry uses an objective standard: whether a reasonably prudent person, experienced in military leadership, would conclude the conduct prejudiced good order and discipline.
- An Article 134 fraternization offense is established when the acts and circumstances would lead such a reasonable military leader to conclude that good order and discipline was prejudiced by compromising an enlisted member’s respect for an officer’s integrity and obligations.

## Conclusion

The Navy Board of Review affirmed an Article 134 fraternization conviction based on an officer’s late-night socializing, drinking, and sharing a bed with an enlisted Marine, holding that prejudice to good order and discipline is assessed case-by-case under an objective, military-leadership standard focused on whether the conduct compromises enlisted respect for the officer role.


United States v. Free, 14 C.M.R. 466 (Navy Bd. Rev. 1953)