CORE CRIMINAL LAW SUBJECTS: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman

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).

 
2008 (September Term)


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). 


(appellant, who took a videotape from a mishap aircraft that had severed a cable supporting a gondola, causing the deaths of 20 passengers, who secreted the tape in his quarters, and who eventually provided the tape to his co-accused several days later knowing that he was going to get rid of it, had fair and reasonable notice, as required by due process, that his obstruction of an Italian criminal investigation could amount to conduct unbecoming an officer; undoubtedly, conduct of a United States military officer designed to prevent authorities of an allied foreign nation from investigating a fatal accident on its national soil involving United States military personnel may constitute service discrediting conduct and conduct unbecoming an officer and a gentleman; first, an experienced officer in appellant’s position would or should have been on notice of the NATO SOFA provisions between the United States and Italy that impose a duty on both parties to assist in carrying out investigations, collecting and producing evidence, and handing over objects related to an offense; as such, appellant had  notice that his conduct in failing to hand over a videotape that he knew would have evidentiary value in an Italian investigation violated his official duties; second, acts of dishonesty and deceit are prohibited by illustration in both Article 133, UCMJ, and Article 134, UCMJ; third, common sense supports the conclusion that appellant was on notice that his conduct violated the UCMJ; appellant, as a seasoned officer and aircraft pilot, understood that under the circumstances his actions would reflect poorly upon him as an officer and would discredit the service [but note: “Our ruling today is limited to factual situation before the court - whether an Article 133, UCMJ, conduct unbecoming an officer and a gentleman specification is legally sufficient where the conduct underlying the charge was incorporated by reference as an Article 134, UCMJ, obstruction of justice charge, and where the military judge’s instruction linked the obstruction of the foreign criminal proceeding to conduct that was ‘directly prejudicial to good order and discipline in the Armed Forces or being directly discreditable to the Armed Forces.’”]). 

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). 


2001

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


United States v. Henley, 53 MJ 488 (under the circumstances of this case involving long-term sexual abuse of appellant’s natural children, a rational finder of fact, given proper instructions, could conclude that possession of nude photographs of children and adolescents brings disgrace upon an officer of the armed forces).


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