Last month, the Court of Appeals for the Armed Forces (CAAF) reversed an Airman’s convictions under Article 134, UCMJ. The Court found the convictions legally insufficient because the Government did not prove that the Airman’s actions were prejudicial to good order and discipline.
Article 134 of the Uniform Code of Military Justice (UCMJ) is a uniquely military Article. In order to convict a servicemember under this Article, the Government must prove both the underlying criminal act and another element that is found only in Article 134. This “terminal element” states that the offense must be: 1) prejudicial to good order and discipline, 2) service discrediting, or 3) a noncapital crime or offense not otherwise found in the UCMJ. In the past, military courts did not place much emphasis on this element and did not require that this element be specifically included in the specification or separately proven at trial.
Between 2008 and 2011, the CAAF reasserted the requirement that the Government separately allege and prove this element, just as it must every other element of a charged offense. The Government can charge acts under Article 134 as either prejudicial to good order and discipline or service discrediting or as both under alternate theories of criminality.
In United States v. Richard, the Government charged the Airman with three specifications in violation of Article 134, UCMJ. He was accused of producing, possessing, and distributing child pornography after making sexually explicit videos and photos with a sixteen year-old civilian and then publishing those images when the two broke up. The Government alleged that the conduct was prejudicial to good order and discipline. At trial, the Government introduced no evidence of any effect on the Airman’s unit or the military at all. They did not discuss the terminal element in their closing argument. The defense raised this omission of evidence during its closing and the Government then argued in rebuttal that the nature of the offense met the requirements of the element.
On appeal, the defense argued that even when all evidence was considered in a light most favorable to the Government, no reasonable factfinder could find that this terminal element had been proven beyond a reasonable doubt. The CAAF agreed. The Court examined the meaning of this element and relied on Colonel William Winthrop’s treatise on military law from 1895. The Court found that in order to prove an action was prejudicial to good order and discipline, “the misconduct must be activity against good order which affects the condition of tranquility, security, and good government of the military service.” In this case, the Government did not provide any evidence of any effect at all, let alone a negative one, on the good order and discipline of the military. The convictions for all three specifications were set aside and the case was sent back to the Air Force to reassess the sentence based on an assault conviction that was affirmed.
If you or your loved one wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.