In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–
[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.
M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior. It’s profile evidence (and it’s wrong, but the law allows it). Hills was a members case! As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–