The Court of Appeals for the Armed Forces recently issued its decision in United States v. Grijalva. Petty Officer Grijalva was a member of the Coast Guard in 2019 when he guessed the Snapchat password of a female civilian, B.C.. B.C. had several photographs stored in her Snapchat account, including some nude pictures of herself. Petty Officer Grijalva digitally shared these photos with others in exchange for money. As a result of this conduct, Petty Officer Grijalva was charged with several offenses. One of these was an offense charged under Article 134, UCMJ.
Article 134, UCMJ, is known as the General Article. It is intended to capture conduct that is not found in the articulated offenses listed in Articles 80-133 but that is still prejudicial to good order and discipline or service discrediting. There are some limitations to what can be charged under this article, including the preemption doctrine. The preemption doctrine prevents the Government from taking an offense that is listed in Articles 80-133 and charging it slightly differently under Article 134 in an effort to avoid having to prove an element of the listed offense.
For example, Article 91, UCMJ, criminalizes contemptuous or disrespectful conduct toward a warrant, noncommissioned, or petty officer. The elements of the offense are: 1) that the accused was a warrant officer or an enlisted servicemember; 2) that the accused did certain acts or used certain language; 3) that such behavior or language was used toward or in the sight and hearing of a certain warrant, noncommissioned, or petty officer; 4) that the accused then knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty officer; 5) that the victim was then in the execution of his office; and 6) that under the circumstances the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer.
If a servicemember made a disrespectful gesture to a noncommissioned officer in front of his fellow servicemembers, but the victim’s back was turned and did not see it, the Government would not be able to prove the third element of this offense. If the Government instead tried to charge this offense under Article 134, as behavior that was prejudicial to good order and discipline without the requirement of the third element, this novel offense would not be allowed. Such an offense would be preempted by the Article 91 offense that already exists, so long as it is clear that Congress intended to “occupy the field” of disrespect offenses with the enumerated offenses and the novel Article 134 specification was composed of almost every element of the Article 91 offense except for the third element.
In Grijalva, the Government did not choose to charge Petty Officer Grijalva with Article 117a, UCMJ, which criminalizes broadcasting intimate images without the consent of the person depicted. Instead, he was charged with an Article 134 novel offense with almost the exact same language as an Article 117a offense. The novel offense did not have the requirement that the conduct had a reasonably direct and and palpable connection to a military mission or military environment. The Court of Appeals opined that the Government did not have the evidence to prove this element, and so created the novel offense to avoid it. The appellate court determined that Congress had intended Article 117a to “occupy the field” on the broadcast of intimate images and that the offense charged was composed of almost every element of the Article 117a offense except for this military mission element. It ruled that the Article 134 offense was preempted by the existence of Article 117a and dismissed the guilty finding. The Court sent the case back to the Coast Guard Court of Military Appeals for a sentence reassessment on the remaining guilty findings.
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