The Military Offense of Communicating a Threat

• Author: Major Heyward G. Jeffers
• Pages: 02

I. INTRODUCTION

The Manual for Courts-Martial, Cnited States, 1951,' presents to the casual reader an appearance of being inconsistent in its attitude toward the use of threatening words. It seems to minimize and belittle the offensiveness of such language. In speaking of the assault offense, it states, "the mere use of threatening words" does not constitute the offense.s The other side of the cain is found in the Table of Maximum Punishments. There the offense of communicating a threat is specifically listed as an offense under Article 134 and provides far a maximum authorized punishment of dishonorable discharge, total forfeiture of pay and allowances, and confinement at hard labor for a period of three years.a Certainly this is no belittling attitude.

While the listing of communicating a threat under the general article appears for the first time in the present Manual, and is "new" in the sense that it has now been individually selected for a specific punishment, it is not a new offense. The misconduct involved in this offense finds legal support under the broad language of the general article, which makes punishable those acta not specifically mentioned in other articles of the Uniform Code of Military Justice which are "disorders and neglects to the prejudice of good order and discipline in the armed forces" and "con- * Thia artieie was adapted from B thesis presented to The Judge Advocate General's School, U.S. Army, Chariottesvilie, Virginia, while the author was B member of the Ninth Career Course. The opinions and ~~nelusi~ns ex.

preaaed herein are those af the author and do not neeeararily repiesent the

WBVB of The Judge Advocate Gensrsl's Sehoai OT any ather governmental agency.

** JAGC, U.S. Anw: Office of the Staff Jndga Advocate, Headquarters, U.S. Army Armor Center, Fort Knor, Kentucky: LL.B.. 1950. Louisiana State Umveialty: Member of the Lovialma Bar.

1 U.S. Dep't of Defense, Manuai for Courts-Martial, United States, 1951 (hereinafter referred to as the Manual and cited a8 MCJ1, 1861, Pam.

The Manvsi was prescribed by Presidential Executive Order, Exec. Order No. 10214, February 8, 1851, m implementation of the Uniform Code of Military Justice, 10 U.S.C. $1 801.940 (1968). Like the UCJIJ, it is applicable to all the ieivi~es.

1 MCM, 1861, p m ~ .

207a, nt p. 370.

* Id. para. 121~.

0 A, st P. 221.*oo I0,iB za

JR.'*

duct of a nature ta bring discredit upon the armed f~rces."~

Identi- cal language was used in the general article of past rnllitary law

for the Army, Navy and Air Farce.$ Furthermore, certain types of threats have in the past been given particular attention under specific Articles of War and Articles for the Government of the Navy.&

The major change in the offense of communicating a threat introduced by the present Manual is in the amount of punishment now provided. As an offense under the general article, the 1949 Manual considered the offense a disorder for purposes of punishment and provided a maximum permissible sentence of confinement at hard labor for four months and forfeiture of two-thirds pay per month for four months.7

Under present law, the offense has been elevated to the status of a felony, This drastic increase in punishment, plus the fact it was specifically listed under Article 134, has focused attention upon what previously had been a rather obscure offense.

The President, under the authority given him by Congress, has seen fit io particularize this aspect of misconduct under the general article, describe it as communicating a threat, and then place it for purposes of punishment on an equal footing with the offense

COMMUNICATING THREATS of extortion. What type of threats calling for such severe sanctions were cantemplatea by the Presiaent'! h a s It intenaed to apply to

D threat maae In moments oi anger, frustration, or intoxicatmn, where no intent to execute the threat IS present? Why was auch an extreme penalty provided ior this offense and what evil did it intend to prohibit? Was its purpose the prevention of the threat or the ultimate execution of the threatened harm?

The answer to these and other questions could have been furnished by a Manual discussion of the actual coverage contemplated. This was not done. The sole reference to this offense found in the Manual appears in the listing under the general article in the Table of Maximum Punishments and a sample form specification in the appendix to the Manual which is set out to aid the pleader in alleging the affense.B These offer little or no assistance to the lawyer and legal scholar interested in knowing what the law is or ahould be. By this very scheme of things, the decisions of the United States Court of Military Appeals? therefore, take on added significance.

What interpretation has the Court given to this offense and what has been their source as to the law they believe should be applied in threat cases? Readily apparent to the reader is the freedom of the Court in dealing with this broadly stated, undefined and unregulated offense, to give it that meaning and effect they so choose.

The purpose of this article is primarily to present a critical study of the reported cases of communicating threats. While Some consideration will be given to the origin of this offense, particular emphasis will be placed on its development, present content, and the legal problems encountered in interpreting this offense by the military appellate bodies. Incident to this examination will be an inquiry into the need of the military aervices for the threat offense in ita present judicially developed farm based an experience gained during the decade it has so existed. In this connection, eonsideration will be given to any problems it may have created in the miiitary justice system and whether or not it can blend harmoniously u,ith those other provisions of law specifically defined bv Congress if it is retained in future military law.

8 MCM, 1851, app. 6c. at p. 494: "171. In that. . . , did, (at) (on board)

. . . , on or about. . , . 18 . , , wrongfully eommunieat~ to . . . . B threat to(iniura , . , , b y . . . .) (accuse . . , . of havane committed the offense of . . . .)(, ,..I.''

9 The United States Court of Military Appeals (hereinafter referred to a8 the Court of Military A~peals or the Court) was created pursuant to UCMJ,Lit. 67(a).

11. THE THREAT OFFENSE

A. JUDICIAL DEVELOPMENT

The offense of extortion was recognized by Congress by way of a specific article in the Uniform Code of Military Justice.10 and n discussion of that offense is set forth in the Manual.L1 This offense requires communication of a threat to another with the intention thereby to obtain anything of value, or any acquittance, advantage, or immunity of any description. It is significant to note that without the intent to influence there remains a simple communication of a threat.

This simple threat offense wab not an offense at common law.12 However, it has been recognized by statute in some jurisdictions.18 Could this be the offense the present Manual contemplated? Having excluded extortion, which is specifically recognized by a codal article, and considering the bare words listed of communicating a threat, the logical answer would appear ta be an affirmative one.

The Court of Military Appeals' initial consideration of the term "threat" was in Cnited States \-. St~rrner.~' That case was not involved with the present Manual offense but was a consideration of whether an offense was properlyalleged under Article 4 (Third), Articles far the Government of the Navy, and the element of threat as set forth therein. In deciding the meaning to be given to this term, the Court declared:

'A threat IS an avowed present deteiminstion OF intent to injum pres~ntly

or m the future.' 16

This definition was adopted from a federal court decision, L'nited States v. Metzdorf,'C where the threat undergoing legal consideration was one made against the President of the United States. It remains as the meaning to be applied to the present threat offenses

10 UCMS,art. 127.

11 MCM. 1951. D~TP. 207. at D. 3SO

11 Bailentine, Law Dictionary 1281 (2d ed. 1948) : "Mere verbal threats were not an indictable offense at common la-, but Statute has sometrmes made it a ernme to threaten mother in B msnnsi ta am~unr to a disturbance of the public peace. To amount to aueh a disturbance, it is ~auallg held that

B threat must be of some grievous bodily harm, muat be put forth in B

deaoerate and reckless manner. nceomosnied by u t 8 ahou'ine a formed mtmt

COMMUNICATING THREATS

and is the appropriate definition furnished to the court-martial in the instructions given by the law officer.'T

In United States V. Holidau,lB the Court considered for the first time the offense of communicating a threat. There, the accused,

R stockade prisoner, was being returned to his celi by his guard who grasped his arm to expedite his progress. At this action, the accused declared, "If I'm not walking fast enough for you, don't push me or I'll knock your , . , teeth dawn your throat." In sus-taining the conviction, a majority of the Court relied upon its former definition and held that communicating a threat to any person in the military establishment is directly and palpably prejudicial to goad order and discipline of the armed forces. As this offenae was not provided for elsewhere in the Code, the allegation under Article 134 was proper. Recognizing the severity of the punishment provided, the opinion holds that there was no abuse of discretion by the President in establishing this penalty, even though the actual commission of the conduct threatened may call for a lesser punishment. The reasoning used was that elimination of the threat which precedes the assault in such cases effectively eliminates the assault itself.

In an apparent attempt to justify the lending of support to this offense, Chief Judge Quinn, writing for the majority, stated:

Such conduct. if committed in the civilian community...