Court-Martial Trial Practice Blog
The Navy-Marine Corps Court of Criminal Appeals’ recent decision in United States v. Tennyson underscores a reality that senior enlisted members and officers cannot afford to ignore: sexual-harassment allegations under Article 92, UCMJ, often turn on regulatory language, not common-law instincts about severity or harm. The case also illustrates why early, experienced defense representation matters when commands rely on broad policy orders rather than traditional punitive articles.
The Case at a Glance
Gunnery Sergeant Eric Tennyson faced a special court-martial for alleged violations of Article 92, UCMJ, based on Marine Corps Order 5354.1E, the Prohibited Activities and Conduct (PAC) Order. The Government charged him with three specifications of sexual harassment arising from separate workplace incidents during his check-in to a new command in October 2020. The military judge, sitting alone, convicted him of two specifications and acquitted him of a third. The adjudged and approved sentence consisted of a reprimand.
On appeal, Tennyson raised four assignments of error, including challenges to legal sufficiency, factual sufficiency, failure to state an offense, and a due-process challenge to mandatory judge-alone special courts-martial. The NMCCA rejected all claims and affirmed the findings and sentence.
Why This Opinion Matters
This case matters because it clarifies how little the Government must prove when it charges sexual harassment as a violation of a general order rather than under a stand-alone punitive article. Paragraph 010502 of the PAC Order defines multiple categories of prohibited conduct. The Government deliberately charged Tennyson under Section C, which prohibits “deliberate or repeated unwelcome verbal comments or gestures of a sexual nature,” so long as there is a nexus to military service. Critically, Section C does not require proof of severity, pervasiveness, or psychological harm.
That charging decision drove the outcome.
On appeal, Tennyson argued—reasonably—that the Government failed to prove a “hostile or offensive work environment” as contemplated by other portions of the PAC Order. The NMCCA rejected the argument as legally irrelevant. Because the Government charged only Section C, it needed to prove only that the comments were deliberate, sexual in nature, and unwelcome. The court emphasized that the PAC Order expressly disclaims any requirement of concrete harm.
For practitioners, the lesson is stark: the charging subsection controls the analysis, not the broader policy document or how a reasonable service member might intuitvely understand “harassment.”
Sufficiency Review Still Has Teeth—but Only if Used Early
The court applied traditional legal- and factual-sufficiency standards. For offenses occurring before 2021, the NMCCA conducted a de novo factual-sufficiency review. Even under that more searching standard, the court credited testimony from junior Marines who described feeling uncomfortable and unable to correct a senior NCO. The court found that power differentials, workplace context, and the absence of welcome were sufficient to sustain the convictions.
Equally important, the court rejected the argument that the specifications failed to state an offense because they did not list the precise words spoken. The NMCCA reiterated long-standing precedent: a specification need not plead evidentiary detail. If an accused wants specifics, the proper remedy is a bill of particulars, not an appellate challenge after conviction.
This procedural point routinely proves decisive. Defense counsel who do not litigate notice issues early—through motions practice—often lose them forever.
How Cave & Freeburg Fits In
Cases like Tennyson sit squarely at the intersection of command policy, criminal law, and workplace dynamics. At Cave & Freeburg, we have handled precisely these issues for service members across the armed forces:
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Article 92 cases premised on broad regulatory orders, where the real fight centers on interpretation, charging theory, and scope.
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Sexual-harassment allegations that fall short of assault, but still carry career-ending consequences.
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Judge-alone special courts-martial, where credibility determinations and careful evidentiary framing matter even more.
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Pre-trial strategy, including motions to dismiss, bills of particulars, and challenges to overbroad application of policy language.
Tennyson demonstrates how easily a case can pivot on regulatory nuance. A senior enlisted Marine received “only” a reprimand, but the court’s legal principles expose service members to criminal liability for conduct many assume will remain in the administrative realm. That risk makes early consultation with experienced military defense counsel essential.
Final Takeaway
United States v. Tennyson reinforces a simple but often misunderstood point: when commands criminalize conduct through general orders, appellate courts will enforce those orders as written. Intent, welcome, and regulatory subsection selection matter far more than whether the conduct shocks the conscience.
For service members facing similar allegations—or commands navigating these issues—the margin for error is thin. At Cave & Freeburg, we understand that margin, because we have litigated it.