2009 (September
Term)
United States v. Anderson, 68 M.J. 378
(charges of attempting to give intelligence to the enemy, attempting to
communicate with the enemy, and attempting to aid the enemy did not
preempt the
charge of conduct prejudicial to good order and discipline or service
discrediting conduct under the general article; the legislative history
of
Article 104, UCMJ, does not clearly indicate that Congress intended for
offenses similar to those at issue to only be punishable under Article
104,
UCMJ, to the exclusion of Article 134, UCMJ; furthermore, while the two
charges
in this case have parallel facts, as charged they are nonetheless
directed at
distinct conduct; the Article 104, UCMJ, charge was directed at
appellant’s
attempt to aid the enemy directly; the Article 134, UCMJ, charge was
directed
towards the distribution of sensitive material to individuals not
authorized to
receive it; unlike Article 104, UCMJ, the general offense as charged
prohibits
the dissemination of the information regardless of the intent behind
that
dissemination; if this distinction was not permissible in light of
Article 104,
UCMJ, Congress was free to clearly state that Article 104, UCMJ,
supersedes
Article 134, UCMJ, in this context).