The General Article-Elemental Confusion

• Author: Captain James A. Hagan
• Pages: 03

1. INTRODUCTION

   To provide for the government of the armed farces of the United States, Congress enacted Khat is euphemistically entitled the "Uniform Code of ldilitary Justice." The euphemism in the appellation is demonstrated by the existence of two articles in the Code which provide punishment for conduct which is not definitely proscribed.' The latter of these, Article 134, operated as the medium through which various acts not denounced in the specific penal articles were made punishable by establishing what can be imperfectly analogized to B 'hmmon law" of crimes for the military. In some civil jurisdictions, absent appropriate iegisiation, resort has been had to the common law as a source for determining whether certain conduct is punishable as a crime.? What conduct is punishable by this unwritten law is determined by usage and tradition as evidenced by records of trials, books of reports, digests, and treatises of the sages, from all of which applicable principles are derived.* It has been said that the doing of an act, or Omitting its performance where a legal duty to act is present, is a crime at common law if it injures or tends to injure the community at large.' Resolution of the question is the function of the judiciary. In the corresponding military area, much the same approach had been taken, at least until 1957.

   'Thle BrtlOle warn adapted from a theaia Drenented to Ths Judge Advocate Generapa School, U.8. Army, Charlsftesrllle, Virginla, while the author was a member of the Elghth AdPBnOed Claaa. The oDinloni and mncl~slons pra. herded herelo BPB thole of the author and do not s*o"*sa~il~

   ~emessnt th~

   em el The Jndge Advocate Generalla School nm an7 elhei gOIeinmenta1 agency.

   **Stal Judre Adroeate Omce, Sehofleld Barracks, Hawall: member of the Texas Stste Bar: gllduafe of the Wnlverslty of Texal Law School.

   'Art. 133, UCMJ, 10 USC 933: Art. 134, UCPJ,

   10 USC 934.'Clark, Mdarshall, A Treatlsa on the Law a! Crlmes, Seo. 10 at 9 (5th ed., 1952). *Id., Seo. 13. at 23-24.,Id., Sea. 15, at 26.

   100 LlWB ea

   By a series of recent decisions, commencing in 1967,' the United States Court of Military Appeals has raised doubt 8s to whether bigamy, adultery, assault with intent to commit certain felonies, indecent assault, possesison of habit forming drugs and other commonly recognized offensese are necessarily punishable as crimes within the purview of Article 154 of the Uniform Code of Military Justice.

   That assertion is based on the holdings, by majority decision, that the conviction of a sailor for willfully and maliciously libelling an officer of the S a w in a letter to the Federal Bureau of Investigation,' the conviction of a soldier of the wrongful and unlawful use of habit forming narcotic and of soldiers for an assault on a military policeman@ in the execution of his duties and on a civilian in the execution of civil law enforcement duties could not be sustained an appeal where the court-martial members were not instructed that they had to find, a8 a matter of fact, that such conduct was either prejudicial to good order and military discipline in the armed farces or was of a nature to bring discredit upon the armed forces.

   The statute under which the acts were charged reads as follows: Though not meelneally mentioned lo thin code. all dlaorders and neglects to the PIajudloe of good older and military dls~lpllne In the armed lorce~, PI1 Conduct of a nature ta brlng diseredlt upon the armed farces. and climes m d Oilensea not mPLtal. al rhlch ~ersons svbjeat to thin oode may hs gullty ahall he taken co%nlzance of by a general 01 s~eeial or LIummPrY cOuTf-maitla1. aceardlng to the nature and degree ai the olease, and Dun. lshed at the disctetion of such muif."

   The decisions relate to the first two clauses of this article, anddo not entail consideration of the clause pertaining to "crimes and offenses not capital".12 To serve brevity, these first clauses will be

   Wnlrad States V. G~OSSO.

   7 USCMA 566, 23 CMR 30 (1857); United StLeP 7 Wllllams. 3 TSCMA 325. 24 CMR 135 (1857); United Shfas Y Cittsns, 3 USCYA 613, 21 CMR 177 (13181: Unlted States V. Lanrenee, 3 USC\IA 732, 26 CMR 236, (1858). el. United States 7. Gnmes, 8 USCHA 272. 26 CMR 52 (1866).

   THE GENERAL ARTICLE

   referred to collectively 83 the "terminal clause", or separately a8

   "clause (1)" or "clause ( Z ) " , respectively, where not spelled out for clarity.

   In finding prejudicial error in the failure of the la\%- officer to submit the terminal clause as an element of the conduct charged as a violation of Article 134, the majority of the court, composedof Chief Judge Quinn and Judge Ferguson, rejected the contention that proof of the conduct alleged in the specification established, as a matter of law, an offense punishable under the ~tatute.'~ This action laid to rest a concept which had long found expression in prior decisions of boards of review. Antecedent decisions in this area of the Code turned either expressly or impliedly, in many cases. on the proposition that proof of the commission of a "crime" as to xhich the President of the United States had declared the maximum punishment or provided a form specificationin the Manual for Courts-Martial was sufficient under Article 134 or its predecessors. Boards of revie17 did not uniformly require a specific finding by the court-martial members, as triers of facts, that the offense denounced by such specifications or for which punishments were expressed did, in fact, equate to a standard of conduct punishable under the article.

   These prior authorities apparently considered that the statute established a legal standard against which conduct was to be tested in view af precedent and Presidential declaration. Colonel Winthrop, writing on the question as to whether crime8 committed by soldiers against civilians could be viewed as affecting the discipline of the command and so be triable as offenses under the then applicable general article, stated that the question should be leftto the decision of the department or commander, in each instan~e.'~ Boards of review did not recognize that any such distinct element existed. In a case Tchere an officer had been conricted of B violation of Article 134, it was held to be unnecessary to submit to the court-martial the question of whether his acts were violative of clauses (1) or (2). the board of review commenting that his conduct was clearly and directly prejudicial ta good order and military discipline.1a A like result obtained on a conviction of being drunk and disorderly on base, the board concluding that drunkenness

   "Cnltsd States s. Willlam9, 8 USCMA 325. 327, 24 CYR 135. 131 (1957)."WlnthroD, llllltary Law and Preoedent, st 15 (26 ad. 1520 reprlnt) [herelnaiter cited ai Wmthrml.

   "Chl 348951. Lee, 4 ChlR 185, 191 (19621, pel. denled, 1 L'SCXA 712, 4 CMR 173 11962): ACll 5615, SIDDel, 8 ChIR 698. 158 11563). aBU 4 USCMA 60, 16CMR SO (1564) (mint not In Insus)

   100 urn8 88

   MILITARY L4W REVIEWwas, per se, an offense.lB Where the law officer instructed the court-martial that the offense of indecent exposure constituted a disorder as a matter of law, no error was found." Likewise, the offenses of false smearing,'8 carnal knowledge under Article of War 96,Ig negligent homicide, and bigamy had previously been defined as violations of the statute without inclusion of the terminal element. In a case involving conviction of fleeing the scene of an accident and negligent homicide, where the concluding instruction was omitted, no prejudicial error was found, although the board of review commented that such an instruction would have been proper.2? In fact, as late as 1956, omission of the terminal instruction mas not noted as err0r.~3 This result apparently flowed from the belief that the inclusion of a farm specification in the Mmual constituted an "executive pronouncement" that such conduct was an offense cognizable by a court-martial and that all of its elements were contained in the spe~ification.~' Language of the United States Court of Military Appeals in sex7'eral decisions, or its inaction, undoubtedly contributed to the perpetuation of this concept, and suggests the court, in fact, embraced it.

   In Cnited States 8. rMarke?, the court, unanimously overruling the contention that a specification under the general article which failed to aver that the conduct was of a nature to bring discredit upon the military service did not state an offense, declared:

   In truth, we believe the luggeeled lsnguage to be nothing mole than trdditionallg Permisnibie lurPlYBWs in BpeelRcattons lald vnder Article 01 War 86. supra. Its Use therein can add nothing 01 legal eileet to anallegation of condnet not of aveh a dlsmedlting nature-and It3 omlsiilon detraeta not st ail from Conduct ~ h l o h elesrly is"

   uAC.\I 5289. Wahl. 5 CHR 733, 737 (1952). pei denied. 2 USCMA 671, 6 CPR 130 (19531.

   WBl 356118, Anderaon, 8 CIR 212, 214 (19521, pel dcn2ed. 2 USCHA 375, 8 CMR 178 (18131: me also, as to Lalae auearlng, CM 363654, Long, 12 CPR 420,

   YCM 353601, C~lloway, 8 CMR 323 (1962). opd 2 CSCMA 433, 9 CMR 53

   "ACM 2683. Deese, 3 CYR AF 301, 313 (19501

   WM 359117, Johnson. 9 CXR 421. 427 (1953): ACM 66S5, Roblnson. 12 CMR

   'CM 368280, Weber, 13 CMR 113, 117 (1963).

   .ACM 11615, Hake, 21 CMR 681, 684 (1956), pat. den

   SACM 2927, Jaekley, 4 CMR AF 130, 138 (18501, but Bee the "Indorsamsnf of

   Tnifed Statpa >. llnrker 1 I.ST>!A 3S3 400 3 CllR 121 131 ( 1 P i ? l

   429 (1953). pet mird, a USCMA 816. 13 CMR 142 (1853).

   (13531.

   850. 869 (1953). pet. denied, 3 USCIA 839,14 CYR 228 l1953l.

   =.an! 9 4 ~ 0 ,

   BOOPP, 18 CMR siz.675 (1954).

   ChlR SdO (19561.

   The Judge Adsacate General of the Air Force", Donfra.

   tle AGO llSDB

   THE GENERAL ARTICLE

   The majority opinion of the court, in United States 8. Willia?iis, indicated that the phrase "traditionally permissible surplusage"2e 8s it applied to a specification did not extend to a declaration that proof of the service discrediting nature of the conduct...