The highest military court has largely overturned the conviction of a Coast Guard chief who sent inappropriate messages to other senior-enlisted members in a group text thread ― a ruling that will impact how and when troops are charged for sending such content through their phone.
The case involves former Chief Machinery Technician Fernando M. Brown, who was convicted in 2019 on an insubordinate conduct charge under Article 91 of the Uniform Code of Military Justice for sending three text messages to a “chief’s mess” group thread while they were all assigned to the heavy icebreaker Polar Star, according to court records.
Brown was busted down to E-6 and given 30 days of restriction and a reprimand in 2020, and has since retired, according to his civilian attorney, Brian Pristera.
But in a ruling issued Oct. 23, the U.S. Court of Appeals for the Armed Forces overturned convictions related to two of the three troublesome text messages.
Two facets of that ruling will set precedent for service members going forward.
First, the court found that a military member can be convicted under Article 91 for disrespectful conduct toward a warrant, noncommissioned or petty officer even when the disrespect occurs outside the physical presence of the victim.
In other words, disrespect sent via text is still criminally actionable, according to the court.
Second, troops only can be held criminally liable if they conveyed disrespectful language while the victim was “in the execution of his or her office.”
Put another way, the victim has to have been on duty when the disrespectful language occurred.
The only one of Brown’s convictions not overturned involved a text Brown sent to the Chief’s Mess group that showed “a crude drawing of male genitalia” on the photo of a chief referred to in records only as “J.D.”
Chief J.D. was working “down in dry dock” when Brown sent the message, and was therefore doing his job when the infraction occurred, according to the ruling.
But the appeals court threw out two other instances where Brown sent inappropriate messages to the chief’s mess thread, because the chief and senior chief victims were not on the job when Brown sent the images.
In one instance, Brown sent a picture that “depicted a scantily clad man” to the chief’s mess thread after a senior chief petty officer identified only as “K.B.” missed a chief’s call.
“Found out why [K.B.] missed chiefs [sic] call,” Brown wrote, according to the appeals court.
Brown sent the message at 7:39 p.m., outside of regular duty hours.
The third message that got Brown in trouble involved a high school yearbook photo of another unit chief, identified as “S.C.,” that Brown sent to the group.
“Voted most likely to steal your bitch,” Brown wrote with the photo.
Chief S.C., who identifies as a lesbian, was off duty and on convalescent leave when Brown sent the pic, and she later testified that the incident embarrassed her, according to court records.
The court also found that the government failed to introduce evidence that Senior Chief K.B. and Chief S.C. were on duty when Brown sent the texts.
The appeals court has ordered lower courts to reassess Brown’s sentence, according to Pristera, but they have not been notified as to when those proceedings will take place.
“We are thrilled that Mr. Brown was almost entirely vindicated through this appeal,” Pristera said in an email to Military Times. “His sentence rehearing or reassessment remains to fully correct the injustice he has faced from the very beginning of this saga.”
Such a ruling will impact lower courts’ decisions on such matters, he said.
“This case will serve to inform the larger military justice community on the limits of Article 91,” Pristera said.
The appeals court gave a nod to the case’s thorny complexity in its ruling as well.
“Sometimes a seemingly simple statute can be devilishly difficult to interpret,” the court wrote.
Geoff is a senior staff reporter for Military Times, focusing on the Navy. He covered Iraq and Afghanistan extensively and was most recently a reporter at the Chicago Tribune. He welcomes any and all kinds of tips at [email protected].