NOTE 1: Limitations on offenses under Clauses 1 and 2, Article 134. A capital offense may not be tried under Article 134. The General Article should not be charged when the offense is prohibited by Articles 80-132, or otherwise listed as an Article 134 offense. Under the preemption doctrine, the General Article also may not be used to charge a residuum of the elements of an Article 80-132 offense, such as charging larceny less the element of intent. See MCM, Part IV, Paragraph 91c(5) and (6); US v. Guardado, 77 MJ 90 (CAAF 2017).
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
RCM 1003(c)(1)(B)(i) provides: “For an offense not listed in Part IV of this Manual which is included in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; however if an offense not listed is included in a listed offense, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses.” But see US v. Beaty, 70 MJ 39 (CAAF 2011) (Beaty holds that, when confronted with an Article 134 offense that is not specifically listed in the MCM, that is not closely related to or included in a listed offense, that does not describe acts that are criminal under the United States Code, and that has no maximum punishment authorized by the custom of the service, the offense is punishable as a general or simple disorder, with a maximum sentence of 4 months confinement and forfeiture of 2/3 pay per month for 4 months. Beaty also provides useful guidance on how to determine if an offense is “closely related” to another offense.). (Criteria)
b. SAMPLE SPECIFICATION:
NOTE 3: The MCM does not provide a sample specification for violation of unlisted offenses under Clauses 1 or 2 of Article 134. Ordinarily a specification alleging an unlisted offense in violation of Article 134 substantially as below should be sufficient.
In that __________ (personal jurisdiction data), did, at/on board—location, on or about __________, (state the act or omission alleged), and that such conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (here state the act, conduct, or omission alleged); and
(2) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces.)
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.
“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.
NOTE 4: Optional instructions applicable to Clause 1 or 2 offenses. The evidence may raise an issue whether the conduct alleged constitutes conduct proscribed under Article 134. In such cases, some or all of the following instructions, properly tailored, may be appropriate. Where alleged or otherwise pertinent, an instruction on the meaning of “wrongful” or “wrongfully,” which typically means without legal justification or excuse, may be appropriate.
(With respect to “prejudice to good order and discipline,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.)
(With respect to “service discrediting,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.)
(Not every act of (__________) constitutes an offense under the UCMJ. The government must prove beyond a reasonable doubt, either by direct evidence or by inference, that the accused’s conduct was (prejudicial to good order and discipline in the armed forces) (or) (of a nature to bring discredit upon the armed forces.) In resolving this issue, you should consider all the facts and circumstances (to include (where the conduct occurred) (the nature of the official and personal relationship between the persons who were involved) (who may have known of the conduct) (the effect, if any, upon the accused’s or another’s ability to perform his/her/their duties) (the effect the conduct may have had upon the morale or efficiency of a military unit) (__________.))
NOTE 5: Conduct pled as both prejudicial to good order and discipline and service discrediting. When the conduct is pled as both prejudicial to good order and discipline and service discrediting, the following instruction should be given:
The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).