Chapter 48: Article 133, UCMJ Conduct Unbecoming an Officer
§ 48:1
Elements
§ 48:2
Discussion
§ 48:3
Standard Instructions
§ 48:4
Maximum Punishments
§ 48:5
Lesser Included Offenses
§ 48:1 – Elements
Article 133 generally prohibits any conduct in an official or private capacity that dishonors or disgraces the person as officer, compromises his or her character, or compromises their standing as an officer. The law is equally applicable to female officers. One would think the law would eventually change to reflect a gender-neutral title. The article is not void for vagueness according to the classic Supreme Court case Parker v. Levy.[1]
The code describes the moral characteristics of the ideal officer including: honesty, fair dealing, decency, decorum, lawfulness, justice, and a lack of cruelty. The definition of an officer includes cadets and midshipmen. The article also includes all other crimes in the Uniform Code of Military Justice.
The Manual for Courts-Martial provides the following examples of offenses – some of which are the basis for bench book jury instructions:
-False official statement
-Failing to pay debts
-Cheating on exams
-Using defamatory language about another officer in that officer’s presence or to another officer
-Drunk or disorderly conduct in a public place
-Public association with known prostitutes
-Crimes of moral turpitude
-Failing to support the officer’s family
The unique feature of the law is that it provides criminal penalties for conduct that may not otherwise be criminal.
As described above, the mere association with a known prostitute can be offense. That logic has extended to known associations with drug dealers also.[3]
The offense can also include the obstruction of foreign criminal investigations or proceedings. In Schweitzer, the accused was a Marine pilot involved an Italian investigation over an aircraft mishap near Aviano, Italy that resulted in a loss of life. The government alleged that the accused destroyed videotape from inside the cockpit of cockpit activities nearly half an hour before the mishap. The actions and conversations in the video had no relationship to the cause of the mishap. Nonetheless, he was convicted of Article 133 for obstructing the Italian investigation.[4]
§ 48:3 - Standard Instructions
Standard Instructions
DA Pamphlet 47-9
3-59-1: Copying or Using Examination Paper.
3-59-2: Drunk or Disorderly.
3-59-3: Failing, Dishonorably, to Pay Debt.
3-59-4: Failure to Keep Promise to Pay Debt.
§ 48:4 - Maximum Punishment
The maximum punishment is dismissal, forfeiture or all pay and allowances, and confinement not in excess of that authorized for the most analogous offense for which punishment is prescribed in the Manual for Courts-Martial. If none is provided for in the manual, then the maximum confinement is one year.
§ 48:5 – Lesser Included Offenses
The stated lesser-included offenses include Article 80 – attempts. A service disorder or discredit under Article 134 can also be a lesser-included offense where the underling acts are covered by Article 134.[5]
[1] Parker v. Levy, 417 U.S. 733 (1974).
[2] United States v. Moore, 38 M.J. 470 (C.M.A. 1994).
[3] United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009).
[4] United States v. Maderia, 38 M.J. 474 (C.M.A. 1994).
[5] United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009).
Elements
§ 48:2
Discussion
§ 48:3
Standard Instructions
§ 48:4
Maximum Punishments
§ 48:5
Lesser Included Offenses
§ 48:1 – Elements
- That the accused did or omitted to do certain acts; and
- That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.
Article 133 generally prohibits any conduct in an official or private capacity that dishonors or disgraces the person as officer, compromises his or her character, or compromises their standing as an officer. The law is equally applicable to female officers. One would think the law would eventually change to reflect a gender-neutral title. The article is not void for vagueness according to the classic Supreme Court case Parker v. Levy.[1]
The code describes the moral characteristics of the ideal officer including: honesty, fair dealing, decency, decorum, lawfulness, justice, and a lack of cruelty. The definition of an officer includes cadets and midshipmen. The article also includes all other crimes in the Uniform Code of Military Justice.
The Manual for Courts-Martial provides the following examples of offenses – some of which are the basis for bench book jury instructions:
-False official statement
-Failing to pay debts
-Cheating on exams
-Using defamatory language about another officer in that officer’s presence or to another officer
-Drunk or disorderly conduct in a public place
-Public association with known prostitutes
-Crimes of moral turpitude
-Failing to support the officer’s family
The unique feature of the law is that it provides criminal penalties for conduct that may not otherwise be criminal.
As described above, the mere association with a known prostitute can be offense. That logic has extended to known associations with drug dealers also.[3]
The offense can also include the obstruction of foreign criminal investigations or proceedings. In Schweitzer, the accused was a Marine pilot involved an Italian investigation over an aircraft mishap near Aviano, Italy that resulted in a loss of life. The government alleged that the accused destroyed videotape from inside the cockpit of cockpit activities nearly half an hour before the mishap. The actions and conversations in the video had no relationship to the cause of the mishap. Nonetheless, he was convicted of Article 133 for obstructing the Italian investigation.[4]
§ 48:3 - Standard Instructions
Standard Instructions
DA Pamphlet 47-9
3-59-1: Copying or Using Examination Paper.
3-59-2: Drunk or Disorderly.
3-59-3: Failing, Dishonorably, to Pay Debt.
3-59-4: Failure to Keep Promise to Pay Debt.
§ 48:4 - Maximum Punishment
The maximum punishment is dismissal, forfeiture or all pay and allowances, and confinement not in excess of that authorized for the most analogous offense for which punishment is prescribed in the Manual for Courts-Martial. If none is provided for in the manual, then the maximum confinement is one year.
§ 48:5 – Lesser Included Offenses
The stated lesser-included offenses include Article 80 – attempts. A service disorder or discredit under Article 134 can also be a lesser-included offense where the underling acts are covered by Article 134.[5]
[1] Parker v. Levy, 417 U.S. 733 (1974).
[2] United States v. Moore, 38 M.J. 470 (C.M.A. 1994).
[3] United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009).
[4] United States v. Maderia, 38 M.J. 474 (C.M.A. 1994).
[5] United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009).
