Conduct Unbecoming an Officer – Article 133, UCMJ
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Conduct “must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.” William Winthrop, Military Law and Precedents 711-12 (2d ed.1920)).
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All that is required is for the offender’s conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. United States v. Rogers, 54 M.J. 244, 256 (C.A.A.F. 2000).
Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal. United States v. Moore, 38 M.J. 490 (C.M.A. 1994); United States v. Norvell, 26 M.J. 477, 481 (C.M.A.1988). Conduct constitute an offense elsewhere under the UCMJ. United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987).
Applies to female officers. United States v. Norvell, 26 M.J. 477 (C.M.A.1988).
Acts Covered by Conduct Unbecoming an Officer – Article 133, UCMJ
Includes acts punishable under other articles of the UCMJ and offenses not solisted, except for minor derelictions that do not satisfy the requirements of Article 133. United States v. Taylor , 23 M.J. 314 (C.M.A. 1987) (UCMJ art. 133 conviction affirmed even where misconduct does not violate a punitive article); United States v. Wolfson , 36 C.M.R. 722 (A.B.R. 1965) (not every deviation in conduct constitutes unbecoming conduct; to be actionable conduct must be morally unbefitting and unworthy). Examples include:
- Child Pornography. United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009). Conduct involving child pornography, including receipt and possession, can constitute conduct unbecoming an officer. This can include both actual and virtual child pornography. But see United States v. Amazaki , 67 M.J. 666 (A. Ct. Crim. App. 2009) (holding that, under the facts, as a matter of due process, the accused was not “on fair notice that his unwitting possession of child pornography . . . was negligent or that his conduct in failing to discover, delete, or secure these images amounted to conduct unbecoming an officer and gentleman.”).
- Drugs. United States v. Graham , 9 M.J. 556 (N.C.M.R. 1980); United States v.Maderia , 38 M.J. 494 (C.M.A. 1994) (publicly associating with person known by the accused to be a drug smuggler and discussing drug use and possibility of assistance in drug smuggling operations).
- Sex. United States v. Coronado , 11 M.J. 522 (A.F.C.M.R. 1981) (even though the offense occurred off the military installation, jurisdiction was properly exercised by general court-martial which convicted accused of conduct unbecoming an officer and gentleman by performing acts of sodomy on an enlisted man); United States v. Jefferson , 21 M.J. 203 (C.M.A. 1986) (adultery and fraternization); United States v. Shobar , 26 M.J. 501 (A.F.C.M.R. 1988) (sexual exploitation of civilian waitress under the accused’s supervision); United States v. Frazier , 34 M.J. 194 (C.M.A. 1992) (officer’s engaging in open and intimate relationship with wife of enlisted soldier constituted conduct unbecoming an officer).
- Sexual Harassment. United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011) (a senior male officer made repeated, unwanted comments in attempts to establish a personal and unprofessional relationship with a senior female noncommissioned officer, who was not his immediate subordinate).
- Indecent language and conduct. United States v. Parini , 12 M.J. 679 (A.C.M.R.1981) (colonel attempted to extract sexual favors from subordinates in return for favorable treatment); United States v. Hartwig , 35 M.J. 682 (A.C.M.R. 1992) (officer was properly convicted of conduct unbecoming based on his letter containing sexually suggestive comments to 14 year-old girl in response to her letter of support for Operation Desert Storm), aff’d, 39 M.J. 125 (C.M.A. 1994); United States v. Moore , 38 M.J. 490 (C.M.A. 1994) (private remarks to sex partner in adulterous relationship regarding oral and anal sex were indecent and degrading and not protected by First Amendment); see also United States v. Mazer , 58 M.J. 691 (N-M. Ct. Crim. App. 2003) (making suggestive, explicit and indecent statements on an internet chat room to someone the accused believed to be a 14-year old girl), set aside on other grounds, remanded by, 60 M.J. 344 (C.A.A.F. 2004).
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- Homosexual conduct.
- United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App. 2009). Conduct that falls within a recognized liberty interest under Lawrence , as applied to the military through Marcum , may nonetheless be punished under Article 133. Under the circumstances of this case, fellatio between consenting adults “evince[d] . . . a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer.”
- United States v. Modesto , 39 M.J. 1055 (A.C.M.R. 1994) (off-post, off-duty, cross-dressing at gay club was conduct unbecoming); see generally TJAGSA Practice Note, Cross-Dressing as an Offense , Army Law., Mar. 1991, at 42.
- Homosexual conduct.
- Lying and breaches of trust. United States v. Lindsay , 11 M.J. 550 (A.C.M.R. 1981)(lying to a criminal investigator about a subject of official investigation is conduct unbecoming an officer and gentleman. Even though making a false statement to a CID agent was, at the time, generally not an offense absent an independent duty to account the special status of an officer and the position of trust he occupies makes the intentional deceit a crime under Article 133); United States v. Timberlake , 18 M.J. 371 (C.M.A. 1984) (forging false PCS orders); United States v. Gunnels , 21 C.M.R. 925 (A.B.R. 1956) (taking money to procure a discharge); United States v. Rushatz , 30 M.J. 525 (A.C.M.R. 1990) (advising junior officers how to overstate rent for off-post housing using backdated receipts), aff’d, 31 M.J. 450 (C.M.A. 1990).
- Financial impropriety. United States v. Brunson , 30 M.J. 766 (A.C.M.R. 1990)(failing to pay a just debt); United States v. Jenkins , 39 M.J. 843 (A.C.M.R. 1994) (negligently writing 76 dishonored checks and six false letters purportedly from bank officials).
- Physical contact. United States v. Isaac , 59 M.J. 537 (C.G. Ct. Crim. App. 2003)(officer pled guilty to three specifications of Art. 133 for “forcefully” picking up and carrying three different female enlisted personnel on three separate occasions).
- Obstruction of Justice. Can include obstruction of foreign criminal investigations or proceedings. United States v. Ashby , 68 M.J. 108 (C.A.A.F. 2009); United States v. Schweitzer , 68 M.J. 133 (C.A.A.F. 2009).
- Miscellaneous conduct. United States v. Schumacher , 11 M.J. 612 (A.C.M.R. 1981) (officer’s public intoxication); United States v. Bonar , 40 C.M.R. 482 (A.B.R. 1969) (affirming conviction for driving in violation of a state justice of the peace’s court order); United States v. Norvell , 26 M.J. 477 (C.M.A. 1988) (dishonorable catheterization to avoid giving a valid urine sample, and then informing an enlisted person of this); see TJAGSA Practice Note, Drugs, Sex and Commissioned Officers: Recent Developments Pertaining to Article 133, UCMJ , Army Law., Feb. 1989, at 62 (discusses Norvell ); United States v. Lewis , 28 M.J. 179 (C.M.A. 1989) (charging a fellow officer for tutoring in leadership); see TJAGSA Practice Note, Charging “Tuition” Can Constitute Conduct Unbecoming an Officer and a Gentleman , Army Law., Aug. 1989, at 36 (discusses Lewis ); United States v. Bilby , 39 M.J. 467 (C.M.A. 1994) (soliciting someone to violate a federal statute); United States v. Miller , 37 M.J. 133 (C.M.A. 1993) (failing to report child abuse by spouse and failing to obtain necessary medical care for abused child).
- Conviction reversed for visiting legal brothel with enlisted members where the accused did not seek or engage in sex, United States v. Guaglione , 27 M.J. 268 (C.M.A. 1988); see generally TJAGSA Practice Note, Drugs, Sex, and Commissioned Officers: Recent Developments Pertaining to Article 133, UCMJ , Army Law., Feb. 1989, at 62 (discusses Guaglione ), and for merely loaning money to a subordinate. United States v. Smith , 16 M.J. 694 (A.F.C.M.R. 1983).
Article 133 is not unconstitutionally void for vagueness. Parker v. Levy , 417 U.S. 733(1974).
Pleadings for Conduct Unbecoming an Officer – Article 133, UCMJ
- Referencing an unconstitutional statutory definition of child pornography in the pleadings and instructing the members using the unconstitutional statutory definition created instructional error in an Article 133 child pornography case. United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting).
- Failing to allege the act was dishonorable or conduct unbecoming an officer is not necessarily fatal. United States v. Wolfson , 36 C.M.R. 722 (A.B.R. 1966); United States v. Wilson , 14 M.J. 680 (A.F.C.M.R. 1982).
- Allegations of “undue familiarity” and “excessive social contacts” with married female service members were legally insufficient. United States v. Kroop , 38 M.J. 470 (C.M.A. 1993). But cf. United States v. Boyett , 42 M.J. 150 (C.A.A.F. 1995) (affirming conviction for unprofessional close personal relationship, including sexual intercourse, with enlisted person not under accused’s supervision); United States v. Rogers , 54 M.J. 244 (C.A.A.F. 2000) (specification that LTC had “unprofessional relationship of undue familiarity” with LT in his command did state an offense).
- Where the underlying acts of misconduct are the same, a service disorder or discredit under Article 134 is a lesser included offense of conduct unbecoming an officer under Article 133. United States v. Cherukuri , 53 M.J. 68 (C.A.A.F. 2000) , aff’d by 54 M.J. 448 (C.A.A.F. 2001); see also United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009); United States v. Harwood, 46 M.J. 26 (C.A.A.F. 1997); United States v. Rodriguez, 18 M.J. 363, 368-369 n. 4 (C.M.A. 1984).
- Where the underlying act of misconduct is the same, larceny under Article 121 is a lesser included offense of conduct unbecoming an officer under Article 133. United States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001) (Army captain pled guilty to one specification of conduct unbecoming and one specification of larceny for same underlying misconduct), aff’d by 56 M.J. 458 (C.A.A.F. 2002). See also United States v. Timberlake , 18 M.J. 371 (C.M.A. 1984) (violation of punitive article, such as art. 123, forgery, is lesser included offense of conduct unbecoming when same underlying misconduct at issue).
- Multiplicity. While any misconduct may be charged as an article 133 offense—evenwhen chargeable as a violation of one of the other punitive articles—findings for both an article 133 offense and the same underlying offense may not stand. United States v. Timberlake , 18 M.J. 371 (C.M.A. 1984). Where service court found conduct unbecoming charge and obstructing justice charge multiplicious, no error in allowing the government to elect which finding to retain. United States v. Palagar , 56 M.J. 294 (C.A.A.F. 2002).
- Unreasonable Multiplication of Charges (UMC). Four specifications ofcommunicating sexually suggestive and sexually explicit language to a minor via e-mail, in violation of Art. 133, did not represent UMC, because they did not reflect the same act or transaction. Each specification identified a discrete and unique communication. United States v. Mazer , 58 M.J. 691 (N-M. Ct. Crim. App. 2003), set aside on other grounds, remanded by 60 M.J. 344 (C.A.A.F. 2004).
Punishment for Conduct Unbecoming an Officer – Article 133, UCMJ
- Maximum punishment is a dismissal, forfeiture of all pay and allowances, andc onfinement for a period not in excess of that authorized for the most analogous offense for which a punishment is prescribed by the MCM, or, if none is prescribed, for one year. MCM, pt. IV, 59e.
- The maximum sentence that may be adjudged for a dupliciously pled specification under Article 133 will be that imposable for “the most analogous offense” with the greatest maximum punishment. United States v. Hart , 32 M.J. 101 (C.M.A. 1991).