UCMJ Article 134 Conduct Prejudicial to Good Order and Discipline

The general Article: UCMJ Article 134

Background of UCMJ Article 134 Conduct Prejudicial to Good Order and Discipline

Article 134 of the Uniform Code of Military Justice (UCMJ) is often referred to as the “general article” because it covers a wide range of offenses that are not specifically enumerated in other articles of the UCMJ. This article is designed to ensure that all conduct detrimental to the good order and discipline of the military or that brings discredit to the armed forces can be addressed and penalized. The broad scope of Article 134 allows it to serve as a catch-all provision for various types of misconduct that do not fall under other specific articles.

Elements of the Offense

To secure a conviction under Article 134 for conduct prejudicial to good order and discipline, the prosecution must prove the following elements beyond a reasonable doubt:

Conduct: The accused engaged in a specific act or behavior.
Prejudicial Effect: The conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Conduct in question need not be explicitly criminal under civilian law, but it must directly and palpably affect military discipline or the military’s reputation.

Examples of Conduct Prejudicial to Good Order and Discipline

Examples of conduct that might be charged under Article 134 include, but are not limited to:

Disorderly conduct or behavior that disrupts unit cohesion.
Fraternization between officers and enlisted personnel in a manner that undermines the chain of command.
Acts of indecency or immoral conduct.
Public drunkenness or drug use.
Failure to pay debts or financial irresponsibility that affects unit morale.
Making false official statements.

Punishments

The punishments for a conviction under Article 134 can vary widely depending on the nature and severity of the offense. Potential punishments include:

Confinement for up to 1 year (or more for serious offenses).
Reduction in rank.
Forfeiture of pay and allowances.
Dishonorable discharge, bad conduct discharge, or other than honorable discharge.
Reprimand or censure.

The exact punishment will be determined by the court-martial based on the specifics of the case and the impact of the conduct on military discipline.

Collateral Consequences of a Conviction

A conviction under Article 134 can have numerous collateral consequences beyond the immediate punishments imposed by the court-martial. These consequences may include:

Difficulty obtaining civilian employment due to the nature of the conviction and any resulting discharge status.
Loss of military benefits, including retirement pay, VA benefits, and healthcare.
Significant damage to personal and professional reputation.
Potential civil lawsuits related to the conduct in question.

These collateral consequences can have long-lasting effects on the individual’s life, career, and financial stability.

Purpose of the Law

The primary purpose of Article 134 is to maintain the good order and discipline essential to the effective functioning of the military. The unique nature of military service requires a higher standard of conduct than is typically expected in civilian life. By providing a broad and flexible mechanism to address various forms of misconduct, Article 134 helps to ensure that all service members adhere to the standards necessary for military readiness and cohesion.

Key objectives of Article 134 include:

Protecting Military Discipline: Ensuring that all service members conduct themselves in a manner that supports the overall discipline and effectiveness of the armed forces.
Promoting Professionalism: Encouraging a culture of professionalism and respect within the military.
Deterring Misconduct: Dissuading service members from engaging in conduct that could harm the reputation or operational capabilities of the military.
Upholding Military Standards: Maintaining the high standards of conduct necessary for military readiness and effectiveness.

Conclusion

Article 134 of the UCMJ is critical in maintaining the good order and discipline required for a functional and effective military. Its broad scope allows it to address a wide range of misconduct that may not be specifically covered by other articles of the UCMJ. By penalizing conduct that is prejudicial to good order and discipline or that brings discredit upon the armed forces, Article 134 helps to uphold the standards and values essential to military service.

For more detailed information on military law and the UCMJ, you can visit the following authoritative websites:

Uniform Code of Military Justice (UCMJ) Document
Military OneSource: Uniform Code of Military Justice

Three Bases of Criminal Liability

Conduct Prejudicial to Good Order and Discipline.
Conduct of a Nature to Bring Discredit upon the Armed Forces.
Conduct Constituting a Non-capital Crime.

Offenses Listed in MCM, pt. IV, 61-113

Require proof of prejudice to good order and discipline or tendency to bring discredit upon the armed forces.
This list is non-exhaustive. Other novel offenses may be charged, provided the alleged misconduct satisfies the standard in one of the three clauses of Article 134 and the misconduct cannot be prosecuted under another article of the UCMJ.

Conduct Prejudicial to Good Order and Discipline (Clause 1)

Not every irregular, mischievous, or improper act is a court-martial offense. MCM, pt. IV, 60c(2)(a). United States v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); United States v. Rowe, No. 32852, 1999 CCA LEXIS 125 (A.F. Ct. Crim. App. Apr. 7, 1999)(unpublished) (allegation of knowing and willful harassment by repeated contact causing substantial emotional stress and reasonable fear of bodily harm was legally sufficient).
The conduct must be directly and palpably prejudicial to good order and discipline. United States v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); see United States v. Davis, 26 M.J. 445 (C.M.A. 1988) (cross-dressing); United States v. Woods, 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse where the accused has the HIV virus).
A breach of custom may result in a violation of clause one of Article 134. MCM, pt.IV, 60c(2)(b). United States v. Smart, 12 C.M.R. 826 (A.F.B.R. 1953). It must satisfy the following requirements: (1) long-established practice; (2) common usage attaining the force of law; (3) not contrary to military law; and (4) ceases when observance has been abandoned.

Conduct of a Nature to Bring Discredit upon the Armed Forces (Clause 2)

The conduct must have the tendency to bring the service into disrepute or tend to lower it in public esteem. MCM, pt. IV, 60c(3); United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (any reasonable officer would have known that asking strangers of the opposite sex intimate questions about their sexual activities while using a false name and a fictional publishing company as a cover, was service discrediting conduct); United States v. Sanchez, 29 C.M.R. 32 (C.M.A. 1960) (sex act with chicken; “[W]hen an accused performs detestable and degenerate acts which clearly evince a wanton disregard for the moral standards generally and properly accepted by society, he heaps discredit on the . . . Government he represents.”).
Considering “open and notorious” conduct. The time and place of conduct are considered by the finder of fact in weighing whether it is service-discrediting. For cases of this type, it is not necessary to prove that a third person actually observed the act, but only that it was reasonably likely that a third person would observe it. United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999) (sexual intercourse in barracks room while two roommates also in room, even though accused hung sheet that substantially blocked roommates’ side of room); United States v. Sims, 57 M.J. 419 (2002) (not open and notorious when appellant was in his unlocked private dorm room, with a greater expectation of privacy than a shared room, and neither party had disrobed); United States v. Carr, 28 M.J. 661 (N.M.C.M.R. 1989) (intercourse on a public beach at night not likely to be seen).
Public knowledge is not necessary. United States v. Phillips, 70 M.J. 161 (C.A.A.F.2011)(“The statute, which requires proof of the ‘nature’ of the conduct, does not require the government to introduce testimony regarding views of ‘the public’ or any segment thereof.”) Overruling United States v. Green, 39 M.J. 606 (A.C.M.R. 1994)(holding that conduct will be service discrediting where civilians are aware of both the military status and the discrediting behavior; see also United States v. Kirksey, 20 M.R. 272 (C.M.A. 1955).
Violations of state or foreign law is not per se service discrediting. United States v. Sadler, 29 M.J. 370 (C.M.A. 1990).

Conduct Punishable Under First Two Theories

Prosecutors often charge, and courts often affirm various offenses invoking both the language of Clause 1 and of Clause 2. When using the list below, be sure to distinguish whether the specific court treated the conduct as both PGO & D and SD, or exclusively as one or the other.

Historically, other offenses have also been prosecuted. United States v. Light, 36 M.R. 579 (A.B.R. 1965) (borrowing money from subordinates); United States v. Baur,10 M.J. 789 (A.F.C.M.R. 1981) (obstruction of justice); United States v. Pechefsky, 13 M.J. 814 (A.F.C.M.R. 1982) (forging credit recommendations).
These listings are not exhaustive, and other novel offenses may be charged under the first two theories of the article, provided the offenses are not prosecutable elsewhere in the UCMJ. United States v. Wright, 5 M.J. 106 (C.M.A. 1978).
1. United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) (inhalation “huffing” nitrous oxide); United States v. Glover , 50 M.J. 476 (C.A.A.F. 1999) (inhaling Dust-Off, a cleaning product).
2. United States v. Choate , 32 M.J. 423 (C.M.A. 1991) (“mooning,” under some circumstances, can be PGO & D).
3. United States v. Johnson , 4 M.J. 770 (A.C.M.R. 1978) (peeping tom).
4. United States v. Kopp , 9 M.J. 564 (A.F.C.M.R. 1980) (wrongfully setting off a false alarm in a residential building at Air Force base).
5. United States v. Woods , 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse where the accused has the AIDS virus); see also United States v. Morris , 30 M.J. 1221 (A.C.M.R. 1990).
6. United States v. Davis , 26 M.J. 445 (C.M.A. 1988) (on-post cross-dressing); United States v. Guerrero , 33 M.J. 295 (C.M.A. 1991), cert. denied , 502 U.S. 1096 (1992) (off-post cross-dressing).
7. United States v. King , 34 M.J. 95 (C.M.A. 1992); United States v. Perez , 33 M.J. 1050 (A.C.M.R. 1991) (adultery).
8. United States v. Sullivan , 42 M.J. 360 (C.A.A.F. 1995) (non-consensual, obscene phone calls).
9. United States v. Warnock , 34 M.J. 567 (A.C.M.R. 1991) (photographing nude female officer with her consent and showing negatives to enlisted paramour NOT prejudicial to good order and discipline under the circumstances).
10. United States v. Henderson , 32 M.J. 941 (N.M.C.M.R. 1991), aff’d, 34 M.J. 174 (C.M.A. 1992) (sexually exploiting recruits).
11. United States v. Stone , 40 M.J. 420 (C.M.A. 1994) (falsely claiming during a speech to high school students to have been a special forces leader in Iraq).
12. United States v. Vaughan , 58 M.J. 29 (C.A.A.F. 2003) (child neglect where soldier-mom left infant at home, unattended for several hours).
13. United States v. Saunders , 59 M.J. 1 (C.A.A.F. 2003) (harassment/stalking). Be cognizant of preemption concerns (Art. 120a, Stalking).
14. United States v. Farence , 57 M.J. 674 (C.G. Ct. Crim. App. 2002), pet. denied, 58 M.J. 203 (2003) (displaying images depicting bestiality to subordinates while on duty).
15. Child Pornography. See Ch. 3, Part II, Para. II.G.
  1. United States v. Irvin , 60 M.J. 23 (C.A.A.F. 2004) (child pornography).
  2. United States v. Mason , 60 M.J. 15 (C.A.A.F. 2004) (virtual, as well as actual, child pornography).
  3. United States v. Brisbane , 63 M.J. 106 (C.A.A.F. 2006) (knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual).

Speech Offenses

“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.” Id. at 758.

“The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” Id. at 758.Parker v. Levy, 417 U.S. 733 (1974) (upholding application of Article 134 to “a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat,” and finding that such conduct “was unprotected under the most expansive notions of the First Amendment.”)

United States v. Priest, 45 C.M.R. 338 (C.M.A. 1972) (upholding the accused’s conviction under Article 134 for making disloyal statements, including statements protesting U.S. involvement in Vietnam, in a publications where copies were made available to service members at the Navy Exchange, the Washington Navy Yard, and at a Pentagon newsstand).

“[T]he right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our Country.” Id. at 344.

“Our inquiry, therefore, is whether the gravity of the effect of accused’s publications on good order and discipline in the armed forces, discounted by the improbability of their effectiveness on the audience he sought to reach, justifies his conviction.” Id. at 344–45.

United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008). In determining whether speech can be punished under Article 134 as prejudicial to good order and discipline, or service-discrediting, a balance must be struck “between the essential needs of the armed forces and the right to speak out as a free American.” Before reaching this balancing test, though, there are two threshold determinations: (1) whether the speech is otherwise protected under the First Amendment, and (2) whether the government proved the elements of the Article 134 offense. In addressing the first prong, certain types of speech lack protection under the First Amendment. They include fighting words, dangerous speech, and obscenity. In the military, dangerous speech “interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.” See United States v. Brown, 45 M.J. 389, 395 (C.A.A.F. 1996).

In addressing the second prong, the CAAF stated that to prove the element of an Article 134 offense involving speech where the question is whether the conduct is prejudicial to good order and discipline, the government must prove that there is a “direct and palpable connection between speech and the military mission.” See Priest, supra, at 343. To prove that the conduct is service-discrediting, there must be “a direct and palpable connection between [the] speech and the military mission or environment.” In Wilcox, the court held that the accused’s statements on the Internet were not unprotected speech. The postings were not dangerous speech because the language did not “interfere[ ] with or prevent[ ] the orderly accomplishment of the mission or present[ ] a clear danger to loyalty, discipline, mission, or morale of the troops.”

Furthermore, the court concluded that the language was not obscene and did not constitute fighting words. As the language was protected speech, the court next addressed the connection between the speech and the military. The court found that the connection between the accused’s statements and the military was so “tenuous and speculative as to be legally insufficient to support the conclusion” that his conduct was either prejudicial to good order and discipline or service discrediting. In conclusion, the speech was protected, and the government did not prove the elements of an Article 134 charge, so the court did not conduct a balancing test between First Amendment protections and the needs of the military.

United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009). The accused, while in civilian clothes, posted Ku Klux Klan recruiting flyers in an airport bathroom. Plea to “wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which conduct was of a nature to bring discredit to the Armed Forces, was provident. The court concluded that “publicly displaying an affiliation with the Armed Services” includes conduct that takes place in an area available to the public, whether or not another person is actually present.

In this case, there was a sufficient factual basis for his plea because there was the possibility that a member of the public who knew him to be in the Coast Guard could have readily seen him posting the flyers. Next, the court applied the United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), and found that the conviction was warranted despite First Amendment concerns. Considering matters presented at sentencing, including the airport director’s testimony that it “made [him] sick” when he found out that the source of the flyers was an active duty Coast Guardsman, the CGCCA found that “the potential effects, both stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh [his] interest in his right to speak out while on government business at the airport.”

Limitations on the Use of Article 134, UCMJ

The Preemption Doctrine. MCM, pt. IV, 60c(5)(a). (See also the discussion ofFACA preemption above).
1. Article 134 cannot be used to prohibit conduct already prohibited by Congress in UCMJ arts. 78 & 80-132.
2. Under the test provided in United States v. Wright , 5 M.J. 106 (C.M.A. 1978), conduct is already prohibited if:
  1. Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ,
  2. The offense sought to be charged is composed of a residuum of elements of an enumerated offense under the UCMJ.

Article 134 UCMJ Applications

1. 1. 1. Prosecution under Article 134, Clause 1 for inhalation (“huffing”) of nitrous oxide is not preempted by Article 112a. United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005).
    2. Federal Statutes: Prosecution for attempting to engage a minor in illegal sexual activity (sodomy and carnal knowledge) in violation of 18 U.S.C. § 2422(b) is not preempted by Articles 80, 120, or 125. United States v. Kowalski , 69 M.J. 705 (C.G. Ct. Crim. App. 2010). Prosecution of bank fraud under 18 U.S.C. § 1344 is not be preempted by Article 132. United States v. Tenney, 60 M.J. 838 (N-M. Ct. Crim. App. 2005); Prosecution under 18 U.S.C. § 842 (h) for possessing stolen explosives is not preempted. United States v. Canatelli, 5 M.J. 838 (A.C.M.R. 1978).
    3. State Statutes: State statute prohibiting wrongfully eluding a police officer is not preempted. United States v. Kline, 21 M..J. 366 (C.M.A. 1986); State auto burglary statute is not preempted. United States v. Sellars, 5 M.J. 814 (A.C.M.R. 1978); State statute prohibiting hunting at night is not preempted. United States v. Fishel, 12 M.J. 602 (A.C.M.R. 1981); State statute prohibiting the unlawful termination of another’s pregnancy is not preempted by Articles 118 and 119. United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999); State child abuse statute is not preempted per se; however, the evidence establishes no more than assault under article 128. United States v. Irvin, 21 M.J. 184 (C.M.A. 1985), cert. denied, 479 U.S. 852 (1986); see also United States v. Wallace, 49 M.J. 292 (C.A.A.F. 1998).
    4. Preempted Statutes: State statutes prohibiting false reports of crimes are preempted.United States v. Jones, 5 M.J. 579 (A.C.M.R. 1978); Prosecution of cable television fraud using Hawaii statute is preempted by an applicable federal statute on cable television fraud, 47 U.S.C. § 553 (a) & (b). United States v. Mitchell, 36 M.J. 882 (N.M.C.M.R. 1993), aff’d, 40 M.J. 270 (C.M.A. 1994), cert. denied 513 U.S. 1041 (1994).

The Capital Crime Exception. MCM, pt. IV, ¶ 60c(5)(b).

Capital crimes are those punishable by death under common law or by statute in the United States.
Capital crimes may not be tried under Article 134. Only non-capital offenses may be prosecuted under article 134. United States v. French, 27 C.M.R. 245 (C.M.A. 1959).

Crimes Punishable under Article 92. MCM, pt. IV, ¶ 60c(2)(b).

If the regulation is punitive, violations of “customs of the service” that are now contained in regulations should be charged as violations of Article 92.
United States v. Caballero, 49 C.M.R. 594 (C.M.A. 1975) (setting aside a conviction under Art. 134 for possession of drug paraphernalia, holding that possession of drug paraphernalia is properly prosecuted under Art. 92, where an order or regulation proscribing such possession exists).
United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crim. App. 2009). The AFCCA interpreted Caballero “to mean that when a lawful general order or regulation proscribing the possession of drug paraphernalia exists, an order which is punitive,” the offense must be charged under Art. 92(1), UCMJ, and not Art. 134. Without a lawful general order or regulation, the Government is free to charge the conduct under another theory of Article 92 or Article 134.

Pleading Considerations in Article 134 UCMJ Cases

Pleading the Terminal Element in Clause 1 and 2 Offenses.
1. Historically, enumerated Article 134 offenses did not require the explicit pleading of the terminal element within the specification. However, United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) marks a dramatic shift in charging Article 134 offenses. Article 134 offenses charged under Clause 1 or 2 should explicitly allege the terminal element, notwithstanding the language of the MCM and prior case law holding otherwise. Specifications that fail to explicitly allege the terminal element will receive increased scrutiny to determine if the terminal element is necessarily implied.
2. Explicit Pleading. The Fosler court reaffirms that a specification provides sufficient notice when it alleges every element of the charged offense either expressly or by necessary implication, as reflected in R.C.M. 307(c)(3). In the context of Article 134, the court states, “[a]n accused must be given notice as to which clause or clauses [of Article 134] he must defend against.” When the terminal element is not expressly alleged, the court analyzes whether the element is necessarily implied.
3. Necessary Implication. Concerning whether the terminal element is necessarily implied, the court looks at historical precedent and stare decisis, including the MCM and Parker v. Levy, 417 U.S. 733 (1974). In recent cases, CAAF notes that increased emphasis on constitutional notice requirements has changed both U.S. Supreme Court and CAAF LIO jurisprudence and “circumsrib[ed] the extent to which Article 134 – and particularly its terminal element – can be implied.” The court states that the historical practice of implying the terminal element and stare decisis supporting this practice “has been substantially eroded.” Merely alleging that a crime is an Article 134 offense does not imply the terminal element and, therefore, the specification does not provide adequate notice – even when coupled with words of criminality (i.e., “wrongfully”) in the specification.

Notice is the legal issue; plain error is the test.

1. 1. Contested trials: Failing to allege the terminal element is an error because the accused does not know against which theory of criminality he must defend. If the specification is challenged for a failure to state an offense at a contested trial, the remedy is dismissal. See Fosler, 70 M.J. at 226.
  2. Guilty pleas: Despite the error failing to allege the terminal element, “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. A court will not “find prejudice and disturb the providence of a plea where the providence inquiry delineates each element of the offense and shows that the [accused] understood ‘to what offense and under what legal theory [he was] pleading guilty.’” United States v. Ballard, ___ M.J. ___ (C.A.A.F 2012). See also United States v. Watson , ___M.J.___(C.A.A.F. 2012); United States v. Nealy , ___M.J.___(C.A.A.F. 2012).

Punishment for Article 134 UCMJ

For the offenses listed in MCM, pt. IV, paras. 61-113, the specified punishments control. R.C.M. 1003(c)(1)(A).
For other offenses, the following rules apply:
1. If the offense is either included in, or closely related to, an offense listed in paras. 61-113, then the penalty provided in the MCM for the listed offense applies. United States v. Sellars, 5 M.J. 814 (A.C.M.R. 1978) (state auto burglary statute was closely related to Article 130 housebreaking and should therefore be punished consistent with article 130 punishments); R.C.M. 1003(c)(1)(B)(i).
2. If an unlisted offense is included in a listed crime and is closely related to another, or is equally related to two or more listed offenses, the lesser punishment of the related crimes shall apply. R.C.M. 1003(c)(1)(B)(i). This is the opposite rule of Article 133, where the greater punishment applies. See section XXII.D.2., supra .
3. If the punishment for an unlisted offense cannot be determined by applying the above tests (a & d, which is usually the case, then the punishment is provided by the civilian statute or authorized by the custom of the service. R.C.M. 1003(c)(1)(B)(ii).
  1. The accused was charged with knowingly receiving visual depictions of minors engaging in sexually explicit conduct under Clauses 1 and 2 of Article 134. The military judge did not err in referencing the analogous federal statute, 18 USC § 2252(a)(2), to determine the maximum punishment “when every element of the federal crime, except the jurisdictional element, was included in the specification.” United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007).
  2. Prosecution under 18 U.S.C. § 842 (h), for possession of stolen explosives, is punished under penalties provided in the federal statute. United States v. Canatelli , 5 M.J. 838 (A.C.M.R. 1978).
  3. Prosecution under 4 U.S.C. § 3 for wrongfully and dishonorably defiling the American flag is punished under the penalties provided in the statute.United States v. Cramer, 24 C.M.R. 31 (C.M.A. 1957).