2010 (September Term)
United
States v. Lofton, 69 M.J. 386 (the elements of
a violation of Article 133
are that: (1) the accused did or omitted to do certain acts; and (2)
under the
circumstances, these acts or omissions constituted conduct unbecoming
an
officer and a gentleman; conduct violative of this article is action or
behavior in an official capacity which, in dishonoring or disgracing
the person
as an officer, seriously compromises the officer’s character as a
gentleman, or
action or behavior in an unofficial or private capacity which, in
dishonoring
or disgracing the officer personally, seriously compromises the
person’s
standing as an officer; an officer’s conduct need not violate other
provisions
of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ;
the
gravamen of the offense is that the officer’s conduct disgraces him
personally
or brings dishonor to the military profession such as to affect his
fitness to
command the obedience of his subordinates so as to successfully
complete the
military mission).
(evidence that appellant, a
senior officer,
made unsolicited comments of a sexual nature to an enlisted woman as a
means to
further his attempt to establish a personal and unprofessional
relationship
with her, and that the enlisted woman lost respect for him as a
military
officer as a result of his comments, was legally sufficient to support
his
conviction of conduct unbecoming an officer and a gentleman;
appellant’s
actions disgraced him personally and as an officer such that they
compromised
his fitness to command and to successfully complete the military
mission;
taking the evidence in the light most favorable to the government, any
rational
trier of fact could have found beyond a reasonable doubt each of the
elements
of the offense).
2009 (September Term)
United
States v. Diaz, 69 M.J. 127 (the focus of
Article 133, UCMJ, is the effect
of the accused’s conduct on his status as an officer, and the test for
a
violation of Article 133, UCMJ, is whether the conduct has fallen below
the
standards established for officers).
(evidence of appellant’s
ethical duties as a
judge advocate and attorney was relevant in a prosecution for conduct
unbecoming an officer to show that he had an honorable motive when he
released
classified documents about detainees at the Guantanamo naval base; a
determination
as to whether conduct charged under Article 133, UCMJ, is unbecoming of
an
officer and gentleman includes taking all the circumstances into
consideration;
such circumstances incorporate the concept of honor; appellant’s view
of what
those circumstances entailed, and what was “honorable,” was therefore
relevant
to his charge of conduct unbecoming an officer for releasing classified
documents; in short, evidence of an honorable motive may inform a
factfinder’s
judgment as to whether conduct is unbecoming an officer; this is
possible even
where the conduct itself amounts to a delict; this might be the case,
for
example, where an accused drives under the influence of alcohol in
order to
rush a gravely injured person to an emergency room; accordingly, in
this case,
the military judge abused his discretion when he prohibited appellant
from
presenting motive evidence on the Article 133, UCMJ, charge, without
first
evaluating appellant’s specific proffers for factual and legal
relevance under
MRE 401, MRE 402, and MRE 403 in the context of the Article 133, UCMJ,
charge).
United
States v. Ashby, 68 M.J. 108 (the criminal
conduct sought to be punished by
an Article 133, UCMJ, offense is the act of committing dishonorable or
compromising conduct, regardless of whether the underlying conduct
constitutes
an offense under the UCMJ).
(where the government chooses
to incorporate separate offenses into a Article
133, UCMJ, charge and where the military judge has instructed on the
elements
of those offenses, an appellate court we will analyze the legal
sufficiency of
the Article 133, UCMJ, offense by determining whether there was legally
sufficient evidence supporting all of the elements instructed upon by
the
military judge).
(appellant’s conduct, as a
captain in the
United States Marine Corps who was the pilot of an aircraft that had
been
involved in an international incident which caused the deaths of 20
civilians,
in concealing potential evidence and assisting in its destruction, was
sufficient to establish all the elements of conduct unbecoming an
officer).
(one of the elements of
obstruction of justice
under Article 134, UCMJ, is that appellant knew or had reason to know
that
there would be “criminal proceedings” pending; although the MCM does
not define
“criminal proceedings,” in this case, nothing supports appellant’s
contention
that his conduct cannot be sustained as conduct unbecoming an officer
because
the criminal investigation that was impeded was foreign rather than
domestic or
military).
United
States v. Schweitzer, 68 M.J. 133 (an officer’s
conduct need not
violate other provisions of the UCMJ or even be otherwise criminal to
violate
Article 133, UCMJ; the gravamen of the offense is that the officer’s
conduct
disgraces him personally or brings dishonor to the military profession
such as
to affect his fitness to command the obedience of his subordinates so
as to
successfully complete the military mission; clearly, then, the
appropriate
standard for assessing criminality under Article 133 is whether the
conduct or
act charged is dishonorable and compromising as hereinbefore spelled
out - this
notwithstanding whether or not the act otherwise amounts to a crime).
(in this case, there was no
substantial basis in law or fact for setting aside appellant’s guilty
pleas to
conduct unbecoming an officer by obstructing justice, where appellant
admitted
knowing that he was obstructing justice by destroying a videotape he
knew would
have been of significant interest to Italian criminal authorities
investigating
the death of twenty persons, and that such conduct was wrong;
appellant’s
admissions were sufficient to establish that his conduct was unbecoming
an
officer - it was dishonorable, disgraced him personally, and
compromised his
fitness to command the obedience of his subordinates so as to
successfully
complete the military mission; furthermore, there was nothing in the
record to
suggest that appellant was not on notice that such conduct was
unbecoming an
officer, and he never made such a claim at trial).
United
States v. Forney, 67 M.J. 271 (the receipt and
possession of virtual child
pornography may also constitute conduct unbecoming an officer).
(an
officer’s conduct that disgraces him personally or brings dishonor to
the
military profession affects his fitness to command the obedience of his
subordinates so as to successfully complete the military mission – that
is the
gravamen of the Article 133 offense of conduct unbecoming an officer).
(conduct need not be a
violation of any other
punitive article of the UCMJ, or indeed a criminal offense at all, to
constitute conduct unbecoming an officer).
(the essence of an Article 133
conduct unbecoming
offense is not whether an accused officer’s conduct otherwise amounts
to an
offense, but simply whether the acts meet the standard of conduct
unbecoming an
officer; the appropriate standard for assessing criminality under
Article 133
is whether the conduct or act charged is dishonorable and compromising,
notwithstanding whether or not the act otherwise amounts to a crime).
(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; speech that is protected in
the
civil population may nonetheless undermine the effectiveness of
response to
command; if it does, it is constitutionally unprotected; in this case,
appellant’s receipt and possession of virtual child pornography
disgraced him
personally and compromised his fitness to command the obedience of his
subordinates).
(constitutional
free speech protection of virtual child pornography in civilian society
was not
a defense to a charge of conduct unbecoming an officer based on
appellant’s
possession of virtual child pornography on government computers on a
Navy warship
underway; in any event, in this case, there is absolutely no evidence
that the
images were or might have been virtual; thus, even if appellant’s
defense were
recognized in military law, and it is not, the military judge would not
have been
required to instruct on it).
United
States v. Conliffe, 67 M.J. 127 (the
elements of Article 133 are (1) that the accused did or omitted to do
certain
acts, and (2) that, under the circumstances, these acts or omissions
constituted conduct unbecoming an officer and gentleman; the focus of
Article
133, UCMJ, is the effect of the accused’s conduct on his status as an
officer,
cadet, or midshipman; the essence of an Article 133 offense is not
whether an
accused officer’s conduct otherwise amounts to an offense, but simply
whether
the acts meet the standard of conduct unbecoming an officer; the
appropriate standard
for assessing criminality under Article 133 is whether the conduct or
act
charged is dishonorable and compromising, this notwithstanding whether
or not
the act otherwise amounts to a crime).
(a
violation of Article 133, UCMJ, necessarily requires proof that the
accused is
a commissioned officer, cadet, or midshipman because the conduct must
have
disgraced or dishonored the accused in his or her official capacity).
(the
offense of conduct unbecoming an officer and gentleman under Article
133, UCMJ,
is a purely military offense when it constitutes the underlying
criminal
offense for housebreaking under Article 130, UCMJ; only a commissioned
military
officer, cadet, or midshipman can commit the offense, and it is only a
court-martial that has jurisdiction to prosecute such an offense;
therefore,
because it is a purely military offense, the offense of conduct
unbecoming an
officer and gentleman under Article 133, UCMJ, cannot serve as the
underlying
criminal offense for the purposes of an Article 130, UCMJ,
housebreaking charge).
(whereas the military
preemption doctrine bars
the government from charging an accused under Article 134(1), UCMJ, and
Article
134(2), UCMJ, for conduct that is appropriately charged under an
enumerated
article, this same doctrine does not apply to conduct unbecoming an
officer and
a gentleman charged under Article 133, UCMJ).
(an accused can be charged
with either an
Article 133, UCMJ, offense or the enumerated punitive article based on
the same
underlying conduct, provided the conduct is, in fact, unbecoming an
officer and
a gentleman; Article 133, UCMJ, addresses the purely military nature of
the
conduct in question).
(as
a matter of law, it is well-established that, when the underlying
conduct is
the same, a service discredit or disorder under Article 134 is a
lesser-included offense of conduct unbecoming an officer under Article
133).
(conduct
unbecoming an officer rationally entails a higher level of dishonor or
discredit than simple prejudice to good order and discipline; thus,
when a
servicemember engages in conduct unbecoming an officer and a gentleman,
he or
she also necessarily engages in service discrediting conduct or conduct
prejudicial to good order and discipline).
United
States v. Rogers, 54 MJ 244 (specification charged
under
Article 133, conduct unbecoming an officer, was not void for vagueness
where it
failed to allege a violation of a regulation or custom of the service
which
forbade an unprofessional relationship of inappropriate familiarity
between a
commander and a subordinate officer; the Constitution does not require
that a
regulation of custom of the service be established, with the possible
exception
of officer-enlisted “fraternization cases charged under Article 133
instead of Article
134).
(officer charged with conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity between a
himself and
a subordinate officer was on fair notice that his conduct was
punishable under
Article 133 where a nonpunitive regulation gave examples of
unprofessional
relationships and where that officer had had occasion to discuss and
apply the
standards relating to personal relationships).
(there is certain conduct to which Article 133 clearly applies
without vagueness
of imprecision; but where areas of uncertainly as to the coverage of
the
article remain, further content may be supplied by less formalized
custom and
usage, and the officer charged with an Article 133 offense must have
fair
notice that his or her conduct was punishable).
(specification alleging conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity with a
subordinate
officer did not fail to state an offense because it did not specify the
acts
which constituted the unprofessional relationship; the acts did not
constitute
the relationship, rather they evidenced that relationship, and
appellant was
notice of those acts which were set forth in a Bill of Particulars as
supplemented by the Article 32 investigating officer’s report).
(evidence was legally sufficient to support finding of guilty of
specification alleging conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity with a
subordinate
officer – this evidence is set forth in some detail in the Senior Judge
Cox’s
opinion).
United
States v. Frelix-Vann, 55 MJ 329 (dual convictions
under
Article 133 and Article 121, UCMJ, cannot be sustained when based on
the very
same act, i.e., where the criminal conduct alleged in the
Article 121
violation is the sole basis for the allegation of conduct unbecoming an
officer
under Article 133).
United
States v. Brown, 55 MJ 375 (Article 133,
prohibiting
conduct unbecoming an officer and a gentleman, is constitutional as
applied to
members of the armed forces, so long as the accused has received fair
warning
of the criminality of his or her conduct).
(Article 133 is not violated by conduct that falls short of the
attributes
of an ideal officer and the perfect gentleman or by slight deviations
constituting indecorum or breaches of etiquette, but by conduct that
exceeds
the limit of tolerance set by the custom of the service to which the
officer
belongs).
(in prosecution for conduct unbecoming an officer and a gentlemen
under
Article 133, UCMJ, military judge did not abuse his discretion by
admitting Air
Force Pamphlet setting forth policy on sexual harassment to show notice
of the
type of conduct that was prohibited and to establish the applicable
standards
of conduct in the Air Force community).
(in prosecution for conduct unbecoming an officer and a gentlemen
under
Article 133, UCMJ, notice of the type of conduct that was prohibited
and the
applicable standards of conduct in the Air Force community was
particularly
important where the charges alleged verbal and physical sexual
harassment as
the unbecoming conduct; under these circumstances, pamphlets or other
evidence
of customs and standards limiting communications with fellow officers
of the
opposite sex provide notice of the distinctions between permissible
banter and
impermissible remarks).
(Air Force Pamphlet setting forth policy on sexual harassment was
relevant
in prosecution for conduct unbecoming an officer and a gentlemen under
Article
133, UCMJ, because: (1) pamphlet’s focus on “unwelcome” comments
provided
notice of the standard for making the critical distinction between
permissible
and impermissible speech; and, (2) the pamphlet set a standard that
conduct be
not merely offensive, but that it be so severe or pervasive that it
creates a
hostile work environment).
(Air Force Pamphlet setting forth policy on sexual harassment was
relevant
in prosecution for conduct unbecoming an officer and a gentlemen under
Article
133, UCMJ, but it may be necessary in given cases to protect against
the
impermissible introduction of command policy into the deliberation room
by
redacting some examples or by providing tailored instructions
explaining the
difference between examples and standards of conduct, and further
explaining
the manner in which the standards of conduct apply to the elements of
proof).
(evidence was legally insufficient to support findings of guilty of
conduct
unbecoming an officer and a gentleman for persistently directing
comments and
questions of a personal or sexual nature to three fellow officers; the
government had relied upon the policy of an Air Force pamphlet on
sexual
harassment to show notice of the type of conduct that was prohibited
and to
establish the applicable standards of conduct in the Air Force
community, and
the evidence showed that the verbal conduct at issue did not violate
the
standard relied upon by the government).
(evidence was legally sufficient to support findings of guilty of
conduct
unbecoming an officer and a gentleman for physical contact with fellow
officers
where the contact involved intimate contact with members of the
opposite sex
that was not incidental, collegial or innocuous, and it was not
reasonable for
appellant to assume that his fellow officers would consent to physical
contact
of an intimate nature absent some communication of receptivity or
consent).
2000