## Facts

- Col. Samuel Lofton III, U.S. Air Force, was tried by general court-martial.
- He pleaded guilty to multiple offenses including unauthorized absences (Art. 86), dereliction and regulatory violations (Art. 92), and larceny (Art. 121).
- Contrary to his pleas, members convicted him of two specifications of conduct unbecoming an officer (Art. 133) and two specifications of indecent assault (Art. 134).
- The Article 133 specification at issue alleged Lofton wrongfully and dishonorably made unsolicited comments of a sexual nature to a senior enlisted woman (a chief master sergeant) under circumstances unbecoming an officer and gentleman.
- The chief master sergeant testified Lofton, her superior, repeatedly initiated uninvited after-hours calls and emails seeking a personal off-duty relationship and making sexualized comments.
- She testified the communications were unwelcome and caused her to lose respect for Lofton as an officer, affecting the professional officer–enlisted relationship.
- The sentence included dismissal, nine years’ confinement, total forfeitures, and a $14,000 fine with contingent confinement; the convening authority approved the sentence with limited suspensions/waivers of forfeitures.
- The Air Force Court of Criminal Appeals affirmed the findings and sentence.
- On further review, Lofton challenged (1) the legal sufficiency of the Article 133 conviction based on the sexual comments and (2) the convening authority’s failure to order a post-trial Article 39(a) session.

## Issues

1. Whether the evidence was legally sufficient to support an Article 133 conviction based on unsolicited sexual comments from a senior officer to an enlisted subordinate.
2. Whether the convening authority abused discretion by declining to order a post-trial Article 39(a) session, and whether any error materially prejudiced the accused’s substantial rights.

## Decision

- The court affirmed the service court and upheld the Article 133 conviction as legally sufficient.
- Applying the standard that evidence is viewed in the light most favorable to the prosecution, the court held a rational factfinder could find beyond a reasonable doubt that the conduct was wrongful, dishonorable, and unbecoming under the circumstances.
- The court held the convening authority did not abuse discretion by not ordering a post-trial Article 39(a) session.
- The court further held the appellant failed to show material prejudice from the absence of a post-trial session.

## Legal Principles

- Legal sufficiency in military appellate review asks whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find all essential elements beyond a reasonable doubt.
- Article 133 requires proof that the accused committed the alleged acts and that, under the circumstances, the acts seriously compromised the officer’s standing or were of a nature to bring discredit on the armed forces.
- Whether conduct is “unbecoming” is context-dependent, including rank disparity, supervisory relationship, and the effect on professional officer–enlisted relations.
- A convening authority has discretion to order a post-trial Article 39(a) session to address substantial post-trial matters; appellate relief requires both an abuse of discretion and material prejudice to substantial rights.

## Conclusion

The court sustained an Article 133 conviction where a senior officer persistently directed unsolicited sexual comments and personal overtures to an enlisted subordinate in a manner found to compromise the officer’s standing, and it declined to grant relief for the lack of a post-trial Article 39(a) session absent a showing of abuse of discretion and material prejudice.


United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011)