2023 (October Term)
United States v. Grijalva, 84 M.J. 433 (the preemption doctrine generally prohibits using Articles 133 and 134, UCMJ, to charge conduct covered by Articles 80 through 132, UCMJ).
(the scope of Article 134, UCMJ, is not unlimited; the initial phrase of the article expressly restricts its reach only to conduct not specifically mentioned in the chapter; this phrase prohibits the charging of conduct as an offense under Article 134, UCMJ, if Congress has already codified the conduct as an offense in Articles 80 through 132, UCMJ).
(the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ).
United States v. Rocha, 84 M.J. 346 (Article 134, among other things, criminalizes service discrediting conduct by servicemembers).
(as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice may be found in the Manual for Courts-Martial).
(presidential narrowing of the general article through examples in the MCM of how it may be violated is part of why Article 134, UCMJ is not considered unconstitutionally void for vagueness; importantly, it is this narrowing of the breadth of Article 134 through these presidential enumerations that provides servicemembers with fair notice of what conduct is subject to criminal sanction under the statute).
(the President is not creating new offenses with his enumeration of examples of Article 134 offenses; there is a distinction between the ability to create offenses—thus adding new articles to the UCMJ—and the ability to enumerate elements that narrow the construction of an existing criminal statute; the former is not within the President's power while the latter is, through his constitutional authority as commander-in-chief).
(presidentially enumerated elements in Part IV of the MCM standing alone can provide fair notice to servicemembers that certain conduct is criminal).
2021 (October Term)
United States v. Richard, 82 M.J. 473 (every element of a criminal offense, including the terminal element of Article 134, UCMJ, must be proven beyond a reasonable doubt and cannot be conclusively presumed based on the accused’s conduct).
(it is well established that the terminal element of the general article is an essential element of the offense).
(Article 134, UCMJ, only applies to conduct that is directly and palpably, as distinguished from indirectly and remotely, prejudicial to good order and discipline).
(the three clauses of the terminal element of Article 134, UCMJ, are separate and distinct, and disorders and neglects to the prejudice of good order and discipline is not synonymous with conduct of a nature to bring discredit upon the armed forces).
(no misconduct can be considered per se prejudicial to good order and discipline under Article 134, UCMJ).
(with respect to misconduct that is prejudicial to good order and discipline under Article 134, the misconduct must be activity against good order that affects the condition of tranquility, security, and good government of the military service).
(prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused).