CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 (2024)

CORE CRIMINAL LAW SUBJECTS: Crimes: Article134 - General Article

2019 (October Term)

United States v. Rice, 80 M.J. 36 (where the conduct and mens rea charged under Article 134, UCMJ, are proscribed by directly analogous federal criminal statutes, the jurisdictional element of the Title 18 offense is not considered for purposes of determining whether it is the same offense as, or a lesser included offense of, the Article 134, UCMJ, offense).

(Article 134, UCMJ, the General Article, is an expansive, flexible, and amorphous prosecutorial tool within the military justice system with no analog in Title 18; intended to serve as a means for a military commander to meet and enforce the exigencies of military discipline, it requires a finding that (1) the accused did or failed to do certain acts, and (2), proof that the accused’s conduct was to the prejudice of good order and discipline in the armed forces, of a nature to bring discredit upon the armed forces, or a crime or offense not capital; the General Article can thus be used to vindicate particular military interests either via the first two terminal elements or to assimilate wholesale any Title 18 offense not capital into the military justice system using the third terminal element; the exceptionally broad statutory language and potential for abuse is balanced, in large part, by an appellate court’s duty to constrain it).

(there is a distinction between substantive elements and jurisdictional elements; and those differences are valid ones when determining what constitutes the same offense for purposes of a double jeopardy analysis involving Article 134, UCMJ).

United States v. Avery, 79 M.J. 363 (whether an Article 134, UCMJ, offense is preempted depends on statutory interpretation).

(the preemption doctrine limits the general article’s expansive scope, prohibiting application of Article 134 to conduct covered by Articles 80 through 132; this doctrine is designed to prevent the government from eliminating elements fromoffenses under the UCMJ, in order to ease its evidentiary burden at trial).

(a limitation similar to the preemption doctrine prevents the government from charging conduct under a novel Article 134, UCMJ, specification where that conduct is already criminalized by an enumerated Article 134, UCMJ, offense).

(an offense listed in Articles 80 through 132, UCMJ, will only preempt an Article 134, UCMJ, offense if (1) Congress intended to limit prosecution fora particular area of misconduct to offenses defined in those specific articles of the Code, and (2) the offense charged is composed of a residuum of elements of a specific offense; simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine; in addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way; and an appellate court will only find a congressional intent to preempt in the context of Article 134, UCMJ, where Congress has indicated through direct legislative language or express legislative history that particular actions or facts are limited to the express language of an enumerated article).

2018 (October Term)

United States v. Gleason, 78 M.J. 473 (if conduct by an accused does not fall under any of the listed offenses for violations of Article 134, UCMJ, in the MCM, a specification not listed in the Manual may be used to allege the offense; however, the government may not charge a novel offense if the offense is otherwise listed as an Article 134, UCMJ, offense; in other words, if an offense is already listed inside Article 134’s framework, it may not be charged as a novel general disorder offense).

(in determining whether appellant’s novel specification under Article 134, UCMJ, alleging interference with his assault victim’s ability to place an emergency call to the police fell under a listed offense under Article 134, UCMJ, the allege conduct must necessarily be viewed within the circ*mstances in which it arose; in determining whether the alleged conduct already fell under a listed offense, the focus is on specific conduct committed under specific circ*mstances; in analyzing conduct alleged in novel specifications, a relatively broad approach is used and a court need not confine itself to an element-by-element comparison between the drafted offense and the offense listed in the MCM).

(the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circ*mstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced).

(a novel specification in violation of Article 134, UCMJ, that charged appellant with interfering with his victim’s emergency call to the police after appellant assaulted and pointed at gun at her and took her phone, failed to state an offense because the offense was already listed inside Article 134’s framework as the offense of obstructing justice and was therefore barred by MCM, pt. IV, para. 60.c.(6)(c), which provides that the government may not charge a novel Article 134, UCMJ, offense if the offense is otherwise listed as an Article 134, UCMJ, offense).

United States v. Tucker, 78 M.J. 183 (with there being no explicit or implicit guidance from Congress on the mens rea requirement for an Article 134, UCMJ, offense, it is necessary to read into the statute the lowest level of mens rea that is necessary to separate wrongful conduct from otherwise innocent conduct, and in doing so, broadly applicable scienter requirements are employed).

2017 (October Term)

United States v. Wheeler, 77 M.J. 289 (the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 to 132, and is designed to prevent the government from eliminating elements from congressionally established offenses under the UCMJ in order to ease their evidentiary burden at trial).

United States v. Guardado, 77 M.J. 90 (the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132; in other words, the preemption doctrine only prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134).

(based on the plain language of the President’s guidance in MCM pt. IV, ¶60.c.(6)(c), the government may not charge a “novel” offense under Article 134, UCMJ, if the offense is otherwise listed as an Article 134, UCMJ, offense; in other words, if an offense is already listed inside Article 134’s framework, it may not be charged as a “novel” general disorder offense under Article 134, UCMJ).

(where appellant was charged with a “novel” Article 134 general disorder offense that could have been charged as Article 134 indecent language offense, the “novel” offense arising from appellant’s indecent language was barred by MCM pt.IV, ¶60.c.(6)(c), and therefore, it failed to state an offense under the UCMJ).

2016 (October Term)

United States v. Reese, 76 M.J. 297 (Part IV, para 60.c.(6)(c) of the MCM states that if conduct by an accused does not fall under any of the listed offenses for violations of Article 134 in the MCM (paragraphs 61 through 113 of Part IV), a specification not listed in the MCM may be used to allege the offense).

(Part IV, para. 60.c.(5)(a) of the MCM prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134; however, preemption under part IV, para. 60.c.(5)(a) is distinct from the provisions of part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c), of the MCM, prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework).

(a novel Article 134, UCMJ, offense charged by the government that was intended to charge the listed Article 134, UCMJ, offense of obstructing justice but relieved the government of having to prove two elements of obstructing justice and thereby reduced the government’s burden of proof, was barred by part IV, para. 60.c.(6)(c), of the MCM, a provision that prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework, and it therefore failed to state an offense).

United States v. Tucker, 76 M.J. 257 (in Article 134, UCMJ, the term ‘neglects’ simply refers to the failure of a servicemember to perform an act that it was his or her duty to perform; stated differently, the term ‘neglects’ has no connection to the mens rea requirement that the government must prove under the statute; the word ‘neglect’ indicates, as a purely objective fact, that a person has not done that which it was his or her duty to do; it does not indicate the reason for this failure; a person can ‘neglect’ his or her duty either intentionally or negligently).

2013 (September Term)

United States v. Moon, 73 M.J. 382 (appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct).

(under appropriate circ*mstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces).

(where an Article 134 charge implicates constitutionally protected conduct, the heightened plea inquiry requirements of Hartman (69 MJ 467 (CAAF 2011)) apply: the colloquy must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior).

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective).

(an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against).

(to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)).

(in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circ*mstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against).

(in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice).

United States v. Goings, 72 M.J. 202 (in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element).

(Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself).

United States v. Caldwell, 72 M.J. 137 (Article 134, UCMJ, criminalizes all disorders and neglects to the prejudice of good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces).

(under Article 134, UCMJ, conduct that is prejudicial to good order and discipline is conduct that causes a reasonably direct and palpable injury to good order and discipline; the acts in question must be directly prejudicial to good order and discipline, and not prejudicial only in a remote or indirect sense; conduct of a nature to bring discredit on the armed forces must have a tendency to bring the service into disrepute or it must tend to lower it in the public esteem).

2011 (September Term)

United States v. Humphries, 71 M.J. 209 (the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven, and regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication).

United States v. Barberi, 71 M.J. 127 (under appropriate circ*mstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces).

United States v. Hayes, 71 M.J. 112 (many violations of state law can be prosecuted under Article 134, UCMJ, 10 USC § 934, through the federal Assimilative Crimes Act, 18 USC § 13, assuming at least concurrent federal jurisdiction over the situs of the offense).

United States v. Nealy, 71 M.J. 73 (although it was error to fail to allege, expressly or by necessary implication, the terminal element of the offense of communicating a threat charged under Article 134, UCMJ, nonetheless, there was no prejudice to appellant’s substantial rights where he pleaded guilty to a specification that was legally sufficient at the time of trial, where during the providence inquiry, the military judge described and defined clauses 1 and 2 of the terminal element, and where appellant did in fact admit that his actions were prejudicial to good order and discipline in violation of clause 1).

United States v. Watson, 71 M.J. 54 (in this case, although the failure to allege the terminal element in the specifications alleging the offenses of communicating a threat and indecent language under Article 134 was error, the error was not prejudicial to appellant’s substantial rights where he admitted in his stipulation of fact that his conduct in each incident was service discrediting, entered into a pretrial agreement and pleaded guilty to the charges, and specifically explained during the plea colloquy why his conduct was service discrediting as to both specifications).

United States v. Ballan, 71 M.J. 28 (while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused).

(whether specifications for charged violations of Article 134, UCMJ, may be upheld in the guilty plea context where the terminal element is not alleged cannot be answered by determining that the act that an accused did or failed to do, is inherently, impliedly, or as a matter of common sense, prejudicial to good order and discipline or service discrediting).

(the terminal element of an Article 134, UCMJ, offense, which may be charged in three different ways, is an actual and distinct element; as such, the terminal element, like any element of any criminal offense, must be separately charged and proven).

(a violation of any of the three clauses of Article 134, UCMJ, does not necessarily lead to a violation of the other clauses, and the principle of fair notice requires that an accused know to which clause he is pleading guilty, and against which clause or clauses he must defend; regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication).

(while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2).

United States v. Winckelmann, 70 M.J. 403 (the underage enticement statute, 18USC §2422(b), criminalizes attempts to knowingly persuade, induce, entice, or coerce any minor to engage inany sexual activity using a means of interstate commerce; to be guilty of an attempt under §2422(b), the government must prove, inter alia, that the defendant (1) had the intent to entice, and (2) took a substantial step toward enticement).

(there is an elusive line separating mere preparation from a substantial step; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circ*mstances).

(in the context of the underage enticement statute, 18 USC §2422(b), different types of evidence can establish a substantial step depending on the facts of a particular case; for example, travel constitutes a substantial step in §2422(b) cases; but travel is not a sine qua non of finding a substantial step in a section 2422(b) case; in non-travel cases involving online dialogue on the Internet, courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach; the online dialogue must be analyzed to distinguish hot air and nebulous comments from more concrete conversation that might include making arrangements for meeting the supposed minor, agreeing on a time and place for a meeting, making a hotel reservation, purchasing a gift, or traveling to a rendezvous point; where an accused has not traveled to a rendezvous point and not engaged in such concrete conversation, an accused may be found to have taken a substantial step toward enticement of a minor where there is a course of more nebulous conduct, characterized as grooming the victim).

(under the facts of this case, an online chat line “u free tonight” from the accused to the alleged victim did not constitute a substantial step toward enticement of a minor to engage in sexual activity in violation of 18 USC §2422(b), and the evidence was thus not legally sufficient; there was no travel, no concrete conversation, such as a plan to meet, and no course of conduct equating to grooming behavior; viewing the question “u free tonight” in the light most favorable to the government, it is simply too preliminary to constitute a substantial step; the accused engaged in a single chat with the alleged victim containing 41 lines of text; even though the chat was sexually explicit, the accused did not discuss when and where they would meet, how they would find each other, what they would do when they met, or make any other specific arrangements to facilitate the rendezvous, and left it up to the alleged victim to contact him if he wanted to get together; consequently, there was no evidence when the chat ended that either enticement or sexual activity with a minor would take place unless interrupted by independent circ*mstances; rather, the enticement or sexual activity could only occur if the alleged victim contacted the accused; therefore, the accused’s actions did not exceed the threshold level of evidence required for a substantial step under the fact-specific analysis required in 18 USC §2422(b) cases, and the evidence was not legally sufficient for a finding of guilt).

United States v. Pierce, 70 M.J. 391 (clause 3 offenses under Article 134, UCMJ, involve noncapital crimes or offenses which violate Federal law; when alleging a clause 3 violation, each element of the federalstatute must be alleged expressly or by necessary implication).

(in this case, appellant was charged with using the Internet to attempt to entice a minor to engage in sexual activity in violation of 18 USC §2422(b); in order to be guilty of that offense, an accused must use, inter alia, any facility or means of interstatecommerce to knowingly entice a minor; this element recognizes that regulating activity under the Commerce Clause provides a means for Congress to create federal crimes).

(the question whether an activity constitutes a facility or means of interstate commerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity, is a question of law).

(the question whether the Internet was a facility or means of interstatecommerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity, is one of statutory interpretation, a question of law to be answered by the military judge; there is no support for the proposition that it is within the province of the members to either interpret statutory language or to traverse Commerce Clause jurisprudence, as would be necessary to determine whether the Internet was a constitutionally sufficient facility or means of interstate commerce).

(as a point of law, the Internet constitutes a facility or means of interstate commerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity).

(the question whether the Internet was used to commit the attempted enticement of a minor in violation of 18 USC § 2422 is one of fact to be decided by the trier of fact; in this case, the members were instructed that they must find that the accused knowingly used the Internet to attempt to entice a minor, there was no error in this instruction, and the evidence on this point was legally sufficient).

2010 (September Term)

United States v. Fosler, 70 M.J. 225 (to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met: that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134).

(the three clauses of Article 134 constitute three distinct and separate parts; violation of one clause does not necessarily lead to a violation of the other clauses; clause 1, disorders and neglects to the prejudice of good order and discipline, is not synonymous with clause 2, conduct of a nature to bring discredit upon the armed forces, although some conduct may support conviction under both clauses; this is particularly true of clause 3, crimes and offenses not capital).

(an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice).

(the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element).

(when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled).

(because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification).

2009 (September Term)

United States v. Jones, 68 M.J. 465 (an LIO, the subset necessarily included in the greater offense, must be determined with reference to the elements defined by Congress for the greater offense; however, this opinion does not, and should not, be read to question the President’s ability to list examples of offenses with which one could be charged under Article 134, UCMJ; the President in those instances is not defining offenses but merely indicating various circ*mstances in which the elements of Article 134 could be met; the President’s listing of offenses under Article 134 is persuasive authority to the courts, and offers guidance to judge advocates under his command regarding potential violations of the article).

UnitedStates v. Anderson, 68 M.J. 378 (the preemptiondoctrine prohibits applicationof Article 134 to conduct covered by Articles 80 through 132; however,simplybecause the offense charged under Article 134, UCMJ, embraces all butoneelement of an offense under another article does not trigger operationof thepreemption doctrine; in addition, it must be shown that Congress,throughdirect legislative language or express legislative history, intendedthe otherpunitive article to cover a class of offenses in a complete way).

(charges of attempting to giveintelligence tothe enemy, attempting to communicate with the enemy, and attempting toaid theenemy did not preempt the charge of conduct prejudicial to good orderanddiscipline or service discrediting conduct under the general article;thelegislative history of Article 104, UCMJ, does not clearly indicatethatCongress intended for offenses similar to those at issue to only bepunishableunder Article 104, UCMJ, to the exclusion of Article 134, UCMJ;furthermore,while the two charges in this case have parallel facts, as charged theyarenonetheless directed at distinct conduct; the Article 104, UCMJ, chargewasdirected at appellant’s attempt to aid the enemy directly; the Article134,UCMJ, charge was directed towards the distribution of sensitivematerial toindividuals not authorized to receive it; unlike Article 104, UCMJ, thegeneraloffense as charged prohibits the dissemination of the informationregardless ofthe intent behind that dissemination; if this distinction was notpermissiblein light of Article 104, UCMJ, Congress was free to clearly state thatArticle104, UCMJ, supersedes Article 134, UCMJ, in this context).

United States v. Miller, 67 M.J. 385 (thecourts of criminal appeals, after finding the evidence factuallyinsufficientto support a finding of guilty to a charged violation of an enumeratedarticleof the UCMJ, may not affirm a conviction to a “simple disorder,” underArticle134, UCMJ, as an offense necessarily included in the enumeratedarticles;Article 134, UCMJ, is not an “offense necessarily included” underArticle 79,UCMJ, of the enumerated articles and may not be affirmed under Article59, UCMJ).

(a simple disorder under Article 134, UCMJ, isnot a lesser included offense of resisting apprehension under Article95, UCMJ,because Article 134, UCMJ, has an element not present in Article 95,UCMJ;clauses 1 and 2 of Article 134, UCMJ, include the element that, inaddition todoing or failing to do a certain act, “under the circ*mstances, theaccused’sconduct was to the prejudice of good order and discipline or was of anature tobring discredit upon the armed forces” - an element not contained inthetextual exposition of Article 95, UCMJ).

(clauses 1 and 2 of Article 134, UCMJ, are notper se included in every enumerated offense under the UCMJ, overruling UnitedStates v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v.Sapp,53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J.195(C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140(C.M.A.1994)).

UnitedStates v. Nance, 67 M.J. 362 (in a guiltyplea to wrongful use of coricidincough and cold medicine as conduct prejudicial to good order anddisciplineunder Article 134, UCMJ, the factual circ*mstances as revealed by theaccusedhimself objectively supported his plea where appellant admitted that herepeatedly gathered with other airmen to abuse the medicine with theintent ofgetting high and that this conduct would affect military readiness; inastipulation of fact, appellant admitted that he met on five occasionswith fourfellow airmen, including one of lower rank, and one enlisted member ofthe U.S.Army to abuse the medicine with the intent to become intoxicated, andthat inaddition to making him high, abusing the medicine impaired his motorskills andsometimes made him pass out or enter into a dream-like state from whichheemerged disoriented; appellant repeated the same facts during the pleainquiry,stating that he experienced nausea, blackouts, and extremely impairedmotorskills after taking the medicine; these facts legally and factuallysupportedthe prejudicial to good order and discipline element of the chargedviolation ofArticle 134, UCMJ).

UnitedStates v. Conliffe, 67 M.J. 127 (whereas themilitary preemption doctrine barsthe government from charging an accused under Article 134(1), UCMJ, andArticle134(2), UCMJ, for conduct that is appropriately charged under anenumerated article,this same doctrine does not apply to conduct unbecoming an officer andagentleman charged under Article 133, UCMJ).

(Article134, UCMJ, punishes, among other things, conduct which is or generallyhas beenrecognized as illegal under the common law or under most statutorycriminalcodes; such activity, by its unlawful nature, tends to prejudice goodorder orto discredit the service).

(asa matter of law, it is well-established that, when the underlyingconduct isthe same, a service discredit or disorder under Article 134 is alesser-included offense of conduct unbecoming an officer under Article133).

(conductunbecoming an officer rationally entails a higher level of dishonor ordiscredit than simple prejudice to good order and discipline; thus,when aservicemember engages in conduct unbecoming an officer and a gentleman,he orshe also necessarily engages in service discrediting conduct or conductprejudicial to good order and discipline).

UnitedStates v. Wilcox, 66 M.J. 442 (the SupremeCourt has upheld Article 134,UCMJ, against constitutional attack for vagueness and overbreadth inlight ofthe narrowing construction developed in military law through theprecedents ofthe CAAF and limitations within the MCM; as such, a limited Article134, UCMJ,does not make every irregular or improper act a court-martial offenseand doesnot reach conduct that is only indirectly or remotely prejudicial togood orderand discipline; if it were otherwise, the forces of narrowinginterpretation thatsaved Article 134, UCMJ, from constitutional challenge would fail).

(the CAAF’s jurisprudence onchargedviolations of Article 134, UCMJ, involving speech recognizes theimportance ofthe context of that speech; consistent with the focus on contextnecessary toestablish a violation of Article 134, UCMJ, while speech that would beimpervious to criminal sanction in the civilian world may be proscribedin themilitary, the CAAF has long recognized that when assessing a criminalviolationimplicating the First Amendment, the proper balance must be struckbetween theessential needs of the armed services and the right to speak out as afreeAmerican; necessarily, the CAAF must be sensitive to protection of theprinciple of free thought; prior to applying this balancing test to achargedviolation of Article 134, UCMJ, involving speech, two thresholddeterminationsmust be made: first, the speech involvedmust be examined to determine whether it is otherwise protected underthe FirstAmendment, and second, the government must have proved the elements ofanArticle 134, UCMJ, offense).

(if an accused’s speech is otherwise protectedby the First Amendment, and if a reasonably direct and palpableconnectionbetween the speech and the military mission or military environment isestablished, only then need an appellate court determine whethercriminalization of that speech is justified despite First Amendmentconcerns;ultimately, an appellate court must weigh the gravity of the effect ofthespeech, discounted by the improbability of its effectiveness on theaudiencethe speaker sought to reach, to determine whether the conviction iswarranted;where the record does not establish a reasonably direct and palpableconnectionbetween the speech and the military at all, let alone the militarymission ormilitary environment, the balancing test is mooted by the legalinsufficiencyof the charged offense).

(appellant’s statements on the Internet thatformed the basis for the charge of violating the general article bywrongfullyadvocating anti-government and disloyal sentiments, and advocatingracialintolerance, while distasteful and repugnant, constituted protectedspeechunder the First Amendment, absent evidence that they constituteddangerousspeech that interfered with or prevented the orderly accomplishment ofthemission or presented a clear danger to loyalty, discipline, mission, ormoraleof the troops).

(the evidence was legallyinsufficient tosupport appellant’s conviction for violating the general article bywrongfullyadvocating anti-government and disloyal sentiments, and advocatingracialintolerance, based on his Internet online profiles, his communicationswithothers on Internet message boards, and his statements made on theInternet toan undercover CID agent; the mere possibility that a servicemember ormember ofthe public might stumble upon appellant’s expression of his beliefs,believe hewas in the military, and attribute his views to the military, was sotenuousand speculative as to be legally insufficient to satisfy the element ofeitherservice discrediting behavior or conduct prejudicial to good order ordiscipline).

UnitedStates v. Medina, 66 M.J. 21 (clauses 1 and 2of Article 134, UCMJ, are notnecessarily lesser included offenses of offenses alleged under clause 3ofArticle 134, UCMJ, although they may be, depending on the drafting ofthespecification).

(for the purposes of a guiltyplea underArticle 134, UCMJ, it is important for the accused to know whether heor she ispleading only to a crime or offense not capital under clause 3, adisorder orneglect under clause 1, conduct proscribed under clause 2, or allthree; as a result,while it is appropriate for anappellate court to affirm a lesser included offense, an accused has aright to know to what offense and under what legal theory he or she ispleadingguilty; this fair notice resides at the heart of the plea inquiry).

(ina contested case involving a guilty plea to a clause 3 offense underArticle134, a reviewing court must consider whether or not the prosecutionproceededon the premise or theory that the conduct alleged under clause 3 wasalsoprejudicial to good order or service discrediting in order to affirmlesserincluded offenses under clauses 1 or 2 in the event the clause 3 theoryisinvalidated; in such a case, the members will normally have beeninstructed asto the alternative theory; this is consistent with the principle thatanappellate court may not affirm on a theory not presented to the trierof factand adjudicated beyond a reasonable doubt).

(with respect to Article 134,UCMJ, given itsstructure and elements, an accused must also know under what clause heispleading guilty; this is accomplished either through advice by themilitaryjudge or through operation of the lesser included offense doctrine).

(in this case, appellant’sguilty pleas toclause 3 child p*rnography offenses under Article 134, UCMJ, were notknowingand voluntary to lesser offenses under clause 2 where appellant was notadvisedduring the plea inquiry that in addition to pleading guilty to clause 3offenses, he was by implication also pleading guilty to clause 2offenses notcharged or otherwise included in the specifications as drafted;althoughappellant admitted to service discrediting conduct in the context ofpleadingguilty to violations of clause 3, he did so without knowledge that inpleadingguilty to clause 3 offenses, he was not required to plead guilty toservicediscrediting conduct under clause 2; it bears emphasis that this is aquestionabout the knowing and voluntary nature of the plea and not the adequacyof thefactual basis supporting the plea).