United States v. Richard ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Javon C. RICHARD, Airman Basic
United States Air Force, Appellant
No. 22-0091
Crim. App. No. 39918
Argued May 10, 2022—Decided September 7, 2022
Military Judge: Christopher M. Schumann
For Appellant: Major Matthew L. Blyth (argued); Major
Stuart J. Anderson and Mark C. Bruegger, Esq. (on brief).
For Appellee: Major Brittany M. Speirs (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and
Mary Ellen Payne, Esq. (on brief).
Judge HARDY delivered the opinion of the Court, in which
Chief Judge OHLSON, Judge SPARKS, Judge MAGGS, and
Senior Judge STUCKY joined. Judge MAGGS filed a separate
concurring opinion, in which Senior Judge STUCKY joined.
_______________
Judge HARDY delivered the opinion of the Court.
The Government charged Appellant with three
specifications of violating the general article, Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2018), for producing, possessing, and distributing child
pornography. To obtain a conviction for these offenses, the
Government was required to prove beyond a reasonable doubt
both that Appellant engaged in the alleged conduct and that
the general article’s “terminal element” was satisfied,
meaning that the conduct either: (1) prejudiced good order
and discipline in the armed forces; (2) was of a nature to bring
discredit upon the armed forces; or (3) was otherwise a
noncapital crime or offense. Id. The Government elected to
charge only the first of these three options and was thus
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Opinion of the Court
required to prove that Appellant’s misconduct was prejudicial
to good order and discipline.1
Despite this burden, the Government failed to proffer any
evidence at Appellant’s court-martial that demonstrated how
Appellant’s behavior prejudiced good order and discipline,
and instead focused on proving the other element of the
offense: that Appellant engaged in the alleged misconduct.
Nevertheless, the panel convicted Appellant of all three
Article 134 specifications, and the United States Air Force
Court of Criminal Appeals (AFCCA) affirmed. Because every
element of a criminal offense—including the terminal
element of Article 134, UCMJ—must be proven beyond a
reasonable doubt and cannot be conclusively presumed based
on the accused’s conduct, we conclude that Appellant’s child
pornography-related convictions under the general article
were not legally sufficient. The AFCCA is reversed,
Appellant’s convictions for the child pornography-related
offenses under Article 134, UCMJ, are set aside, and the case
is remanded for further proceedings.
I. Background
While stationed at Ramstein Air Base in Germany,
Appellant initiated a sexual relationship with IB, a sixteen-
year-old German citizen. In the course of their relationship,
Appellant filmed himself and IB having intercourse in his
barracks dorm room two times—once without IB’s consent
and once with her consent. After Appellant returned to the
Unites States, but before IB turned eighteen, Appellant and
IB continued to engage in sexual acts over live video chats,
several of which Appellant memorialized by taking
screenshots without IB’s awareness. Appellant kept those
photos on his phone along with other sexually explicit images
IB consensually sent him.
1 To be clear, nothing in this case prevented the Government
from charging that Appellant’s conduct was service discrediting in
addition to being prejudicial to good order and discipline. See
United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010) (noting
that, in charging violations of Article 134, “the government is
always free to plead in the alternative”). In the instant case,
however, the Government chose to limit itself to proving
Appellant’s conduct prejudiced good order and discipline.
2
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Opinion of the Court
Appellant and IB’s relationship soured when each became
upset about the other engaging in relationships with other
people. Angered by IB’s actions, Appellant sent several
sexually explicit pictures of IB to her mother. After another
instance of suspected infidelity, Appellant logged into IB’s
Snapchat account, posted several nude photos of IB to her
story (a feature of the app that allows IB’s Snapchat contacts
to see the images), and changed her password so that she was
unable to remove the images until Appellant relinquished the
new password. Although IB was eventually able to remove the
images, she testified that she received multiple messages
from people who saw the images on her Snapchat story.
Based on Appellant’s interactions with IB, the
Government charged Appellant with three specifications of
violating the general article, Article 134, UCMJ, for
producing, possessing, and distributing child pornography,
and one specification of assault under Article 128, UCMJ, 10
U.S.C. § 928 (2018), for shoving and striking IB.2 With respect
to the violations of the general article, the Government
charged Appellant with conduct to the prejudice of good order
and discipline in the armed forces. Thus, for each of these
offenses, the Government was required to prove two
elements: (1) that Appellant knowingly and wrongfully
produced, possessed, or distributed child pornography; and
(2) that under the circumstances, the Appellant’s conduct was
to the prejudice of good order and discipline in the armed
forces. Article 134, UCMJ; Manual for Courts-Martial, United
States pt. IV, para. 68b.b. (2016 ed.) (Manual or MCM).
At trial, the Government failed to present any specific
evidence to support the second element of the Article 134
charges, and the Government trial counsel neglected to
include any analysis of the second element during the closing
2 Unrelated to Appellant’s relationship with IB, the
Government also charged Appellant with one specification of
destruction of nongovernment property under Article 109, UCMJ,
10 U.S.C. § 909 (2018), four specifications of using or distributing
controlled substances under Article 112a, UCMJ, 10 U.S.C. § 912a
(2018), three specifications of assault under Article 128, UCMJ, 10
U.S.C. § 928, and two additional violations of the general article
under Article 134, UCMJ. Those charges are not at issue in this
appeal.
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argument, focusing solely on whether Appellant produced,
possessed, or distributed child pornography. After the defense
highlighted this failure in its closing argument, the
Government tried to salvage the Article 134 charges during
rebuttal with the following statement:
And finally, with respect to prejudicial to good
order and discipline, let me get this right. That it’s
okay—this is what the defense argument is, it’s okay
to have child pornography on your phone as a
military member, just that nobody knows about it,
so it’s certainly not prejudicial to good order and
discipline. It is prejudicial to good order and
discipline to have child pornography on your phone.
We do not allow our members to commit crimes and
have criminal possessions on our phone. That’s—the
argument that for some reason, you know, that is not
prejudicial to good order and discipline for our
members to commit crimes as long as it’s quiet and
in secret, we would all agree that what you do on
your private time matters. We’re held accountable
for what we do o our private. And to get up here and
say, Members, to have child pornography on your
phone and distribute is not prejudicial to good order
and discipline (indiscernible) this, was her mama
the military, no, but the people he was distributing
these messages—these images to in the military, no.
How does that look? How does that look? It’s not
prejudicial to good order and discipline because, I
don’t know, you know, because he had it but it was
just on his phone, it doesn’t hurt us, it’s not—it
doesn’t impact the military, it’s ridiculous. It’s
ridiculous. Keep that line. Keep that line. Do not get
smudged.
Transcript of Record at 723–24, United States v. Richard, No.
22-0091 (C.A.A.F. 2022) (errors in original).
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of all
three specifications related to the production, possession, and
distribution of child pornography in violation of Article 134,
UCMJ, and one specification of assaulting IB, in violation of
Article 128, UCMJ.3 The court-martial sentenced Appellant
3 The panel found Appellant not guilty of all the remaining
charges unrelated to Appellant’s interactions with IB.
4
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to a bad-conduct discharge and confinement for thirty days.
After the convening authority took no action on the case, the
AFCCA affirmed the findings and the sentence. United States
v. Richard, No. ACM 39918, 2021 CCA LEXIS 632, at *2, 2021
WL 5505091, at *1 (A.F. Ct. Crim. App. Nov. 24, 2021)
(unpublished). We granted review to answer the question:
Whether the evidence of prejudice to good order and
discipline for the Article 134, UCMJ, offenses was
legally sufficient.
United States v. Richard, 82 M.J. 235 (C.A.A.F. 2022) (order
granting review).
II. Discussion
The general article has governed the conduct of American
servicemembers since the Continental Congress enacted the
first domestic Articles of War in 1775.4 And the Supreme
Court has recognized that the military has, by necessity due
to its unique and critical mission, “developed laws and
traditions of its own during its long history.” Parker v. Levy,
417 U.S. 733, 743 (1974). Nevertheless, Article 134, UCMJ, is
a statutory criminal offense, and as such, this Court has
recognized that the Constitution demands that the
Government prove every element of an Article 134 offense—
including the second or “terminal” element—beyond a
reasonable doubt. United States v. Phillips, 70 M.J. 161, 165
(C.A.A.F. 2011); United States v. Fosler, 70 M.J. 225, 226
(C.A.A.F. 2011); United States v. Wilcox, 66 M.J. 442, 448
(C.A.A.F. 2008) (citing In re Winship, 397 U.S. 358, 364
(1970)). Thus, in this case, for Appellant’s Article 134
convictions to be legally sufficient, the Government must
have carried its burden of proving that Appellant’s
4 See Article L of the American Articles of War of 1775, reprinted
in William Winthrop, Military Law and Precedents 957 (2d ed.,
Government Printing Office 1920) (1895) (“All crimes, not capital,
and all disorders and neglects, which officers and soldiers may be
guilty of, to the prejudice of good order and military discipline,
though not mentioned in the articles of war, are to be taken
cognizance of by a general or regimental court-martial, according to
the nature and degree of the offence, and be punished at their
discretion.”).
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misconduct was to the prejudice of good order and discipline
in the armed forces.
A. Standard of Review
This Court reviews issues of legal sufficiency de novo.
United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019). In
determining whether a conviction was legally sufficient, this
Court asks whether, viewed “in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F.
2018) (internal quotation marks omitted) (quoting United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). It is well
established that the terminal element of the general article is
an “ ‘essential element of the offense.’ ” Phillips, 70 M.J. at
164 (quoting United States v. Williams, 8 C.M.A. 325, 327, 24
C.M.R. 135, 137 (1957)). To whatever extent some of this
Court’s (or its predecessor’s) older cases may have treated the
terminal element of Article 134, UCMJ, as something less
than an essential element, those cases have been expressly
overruled. See, e.g., United States v. Miller, 67 M.J. 385, 389
(C.A.A.F. 2009); United States v. Jones, 68 M.J. 465, 470–71
(C.A.A.F. 2010); Fosler, 70 M.J. at 232–33.
B. Analysis
To determine whether the Government established that
Appellant’s misconduct prejudiced good order and discipline
in the armed forces, we must first decide what that phrase
means, or at least what it requires in this case. Despite the
general article’s long history as part of the American military
justice system—and the even longer history of the British
antecedents from which the general article was derived5—the
phrase “to the prejudice of good order and discipline” has
avoided precise definition, either by Congress, the judiciary,
or the President. In the absence of any additional
explanation, many courts and observers have recognized that
the language in the general article is remarkably vague. As a
former Chief Judge of our predecessor Court observed before
5 See Parker, 417 U.S. at 745–46 (tracing the history of Article
134, UCMJ); see also Gilbert G. Ackroyd, The General Articles,
Articles 133 and 134 of the Uniform Code of Military Justice, 35 St.
John’s L. Rev. 264, 266–78 (1961) (same).
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he joined the bench, the “awesome generality” of the general
article’s language “would seem in many ways to defy
explanation, and whose true meaning might baffle the
examination of the most skilled lawyer.” Robinson O. Everett,
Article 134, Uniform Code of Military Justice—A Study in
Vagueness, 37 N.C. L. Rev. 142, 142 (1959).
In the 1970s, this vagueness caused both the. United
States Court of Appeals for the Third Circuit and the United
States Court of Appeals for the District of Columbia Circuit
to strike down the general article as violating the Fifth
Amendment’s guarantee of due process. Levy v. Parker, 478
F.2d 772, 796 (3d Cir. 1973), rev’d, 417 U.S. 733 (1974);
Avrech v. Sec’y of Navy, 477 F.2d 1237, 1244 (D.C. Cir. 1973),
rev’d, 418 U.S. 676 (1974). The Supreme Court reversed those
decisions, but in doing so, it expressly relied on the fact that
our predecessor Court had “narrowed the very broad reach of
the literal language” of Article 134, UCMJ, such that it only
applies “to conduct that is ‘directly and palpably—as
distinguished from indirectly and remotely—prejudicial to
good order and discipline.’ ” Parker, 417 U.S. at 753, 754(quoting United States v. Sadinsky, 14 C.M.A. 563, 565, 34
C.M.R. 343, 345 (1964)). The Supreme Court took further
comfort from the fact that the President had expressly
codified that limitation in the Manual, see Parker, 417 U.S. at753 & n.22 (citing MCM pt. IV, para. 213c (1969 ed.)), a
restriction that remains in the Manual to this day, MCM pt.
IV, para. 91.c. (2019 ed.).
Yet, despite having exhausted our traditional sources of
constitutional, statutory, and judicial authority, we are still
left with the question whether the Government established
that Appellant’s misconduct was directly and palpably “to the
prejudice of good order and discipline in the armed forces.”
Article 134, UCMJ. In Parker, the Supreme Court observed
“that the longstanding customs and usages of the services
impart accepted meaning to the seeming imprecise
standards” of the general article. 417 U.S. at 746–47. But the
procedural history of this case indicates that—at least among
the various participants in Appellant’s trial and appeal—
there was no “accepted meaning” of what it means for conduct
to be “to the prejudice of good order and discipline.” Both at
Appellant’s court-martial and before the AFCCA, the
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Government prevailed on arguments that would seem more
appropriate for charges brought under clause 2 of the general
article’s terminal element—that Appellant’s conduct was of a
nature to bring discredit upon the armed forces. But, as we
have explained before, the three clauses of the terminal
element are separate and distinct, and “ ‘disorders and
neglects to the prejudice of good order and discipline’ is not
synonymous with ‘conduct of a nature to bring discredit upon
the armed forces.’ ” Fosler, 70 M.J. at 230.
Beyond noting that the three clauses of the terminal
element are not interchangeable, Appellant makes no effort
to define conduct that is prejudicial to good order and
discipline because he argues that the Government’s failure to
proffer any evidence in support of the terminal element
renders his convictions legally insufficient. Appellant
observes that there is no evidence in the record that anyone
in the military was aware of his misconduct or that his
misconduct had any effect on good order and discipline—
regardless of exactly what that phrase means—let alone a
“direct and palpable” one.
The Government concedes that there is no clear definition
of “good order and discipline,” and it does not dispute
Appellant’s description of the record of trial, but it argues that
it proved the terminal element in this case because the
evidence established that Appellant “used his military status
and the resources he received from the military to effectuate
the commission of his crimes.” Brief for Appellee at 15, United
States v. Richard, No. 22-0091 (C.A.A.F. Apr. 25, 2022).
Citing historical cases, the Government argues that crimes
committed by servicemembers against civilians, that involve
the use of government-issued equipment, or are committed on
military installations prejudice good order and discipline even
when performed in secret. The Government acknowledges
that this Court has held that no misconduct can be considered
per se prejudicial to good order and discipline, but the
Government argues that our predecessor Court’s decision in
United States v. Davis supports Appellant’s Article 134
convictions because some misconduct—including Appellant’s
actions in this case—“by its unlawful nature, tends to
prejudice good order or to discredit the service.” 26 M.J. 445,
448 (C.M.A. 1988) (emphasis added).
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The Government’s expansive view of the scope of conduct
that is “to the prejudice of good order and discipline”—
essentially that any misconduct that has a nexus to the
military qualifies—suggests that it might be necessary for us
to better define such conduct, something that would be well
within this Court’s authority to do. See, e.g., Wooden v. United
States, 142 S. Ct. 1063, 1069 (2022) (defining the term
“occasions” in 18 U.S.C. § 924(e)(1)); DePierre v. United
States, 564 U.S. 70, 72 (2011) (defining the term “cocaine
base” in 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)); United States v.
Santos, 553 U.S. 507, 509 (2008) (defining the term “proceeds”
in 18 U.S.C. § 1956(a)(1)); United States v. Granderson, 511
U.S. 39, 42 (1994) (defining the term “original sentence” in 18
U.S.C. § 3565(a)). But before taking that step, we find it
instructive to return to what is, to the best of our knowledge,
the source of the direct and palpable limitation that our
predecessor Court adopted and that the President codified in
the Manual: Colonel William Winthrop’s treatise on
American military law. See Winthrop, supra, at 723 (noting
that the general article is “confined to cases in which the
prejudice is reasonably direct and palpable” rather than cases
that are “indirectly or remotely” prejudicial); see also United
States v. Snyder, 1 C.M.A. 423, 425–26, 4 C.M.R. 15, 17–18
(1952) (citing Winthrop’s treatise to determine whether the
appellant’s Article 134 convictions were legally sufficient).
In his seminal treatise, Winthrop wrote that “prejudice,”
as used in the general article, means “detriment,
depreciation, or an injuriously affecting.” Winthrop, supra, at
723. He further explained that because the cases
contemplated by the general article are generally military
neglects and disorders, “good order” means the “condition of
tranquility, security and good government” of the military
service. Id. Even when the general article is applied to civil
wrongs, Winthrop noted that the accused’s misconduct must
still “actually prejudic[e] military discipline.” Id.
Winthrop’s definition of conduct that prejudices good
order and discipline—which the United States Army Court of
Military Review adopted more than four decades ago, see
United States v. Evans, 10 M.J. 829, 830 (A.C.M.R. 1981)
(“The misconduct must be activity against ‘good order’ which
affects the ‘condition of tranquility, security, and good
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government of the military service.’ ” (quoting Snyder, 1
C.M.A. at 426, 4 C.M.R. at 15 (quoting Winthrop, supra, at
723))—comports with our own understanding of clause 1 of
the terminal element. It is also consistent with the various
more detailed explanations that the President has provided
in the Manual to distinguish conduct that does prejudice good
order and discipline from conduct that does not. See, e.g.,
MCM pt. IV, para. 99.c.(1) (2019 ed.) (explaining when
extramarital sexual conduct qualifies as an Article 134
offense under clause 1 of the terminal element); MCM pt. IV,
para. 101.c.(1) (explaining when contact between officers and
enlisted servicemembers qualifies as an Article 134 offense
under clause 1 of the terminal element). In light of this
existing guidance about what the government must prove to
establish that conduct prejudiced good order and discipline,
we see no need to formally define that phrase, but instead
proceed with those well-known hallmarks of good order and
discipline in mind.
Based on the record here, we conclude that Appellant’s
Article 134 convictions were not legally sufficient. As an
initial matter, the Government failed to proffer any evidence
that Appellant’s misconduct had any negative effect—indeed,
any effect at all—on the good order and discipline of the
armed forces. No one in the military had any idea that
Appellant was producing child pornography in his barracks
dorm room, and there is no evidence that this misconduct
interfered in any way with any of the traditional hallmarks of
good order and discipline identified by Winthrop in his
treatise or the President in the Manual.
The Government’s arguments about Appellant’s military
status and his misuse of military property cannot cure the
Government’s failure to proffer evidence of actual harm to
good order and discipline. Viewed in the best possible light,
these are purely speculative arguments about how
Appellant’s misconduct might have prejudiced good order and
discipline that cannot establish legal sufficiency. See Wilcox,
66 M.J. at 451 (holding that “tenuous and speculative”
theories about how the appellant’s conduct prejudiced good
order and discipline failed to establish the terminal element).
But viewed less charitably, these arguments—which presume
prejudice to good order and discipline based on factors such
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as the location of the offense or the military status of the
accused—urge a return to exactly the kind of per se rules that
this Court has expressly rejected as constitutionally deficient.
See Phillips, 70 M.J. at 164–65 (“The use of conclusive
presumptions to establish the elements of an offense is
unconstitutional because such presumptions conflict with the
presumption of innocence and invade the province of the trier
of fact.”). We decline the Government’s invitation to turn back
the clock on our treatment of the general article.
To be fair, the Government cites various historical cases
both from this Court and from our predecessor that would
seem to support its argument for a more relaxed approach
toward proving the general article’s terminal element. What
the Government’s reliance on these older cases neglects,
however, is the sea change that occurred in this Court’s
Article 134 jurisprudence between 2008 and 2011. As this
Court recognized in Fosler, by 2011 “the jurisprudence of the
Supreme Court and our own Court ha[d] changed.” 70 M.J. at
232. To whatever extent older cases suggest that prejudice to
good order and discipline can be assumed or implied based on
the misconduct of the accused, those cases have been
overruled.6 “To satisfy the due process requirements of the
Fifth Amendment, the Government must prove beyond a
reasonable doubt every element of the charged offense.”
Wilcox, 66 M.J. at 448 (citing In re Winship, 397 U.S. at 364).
That constitutional mandate applies just as much to the
terminal element of Article 134, UCMJ, as it does to every
other element of a criminal offense. Phillips, 70 M.J. at 165
(“The terminal element must be proved beyond a reasonable
doubt like any other element. Whether any given conduct
violates clause 1 or 2 is a question for the trier of fact to
determine, based upon all the facts and circumstances; it
6 Appellant argues that for this reason, Davis, 26 M.J. 445,
should also be overruled “to purge an anomaly in an otherwise
uniform progression towards requiring proof of the terminal
element.” Brief for Appellant at 33, United States v. Richard, No.
22-0091 (C.A.A.F. Mar. 25, 2022). Because the holding in Davis is
unrelated to the specific sentence cited by the Government (and
quoted by the AFCCA), we see no reason to overrule Davis. But
nothing in Davis undermines the fundamental requirement that
the government must prove all elements—including the terminal
element of the general article—beyond a reasonable doubt.
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cannot be conclusively presumed from any particular course
of action.”).
III. Conclusion
Because no evidence established the terminal element of
the three specifications for violating Article 134, UCMJ, we
conclude that no reasonable factfinder could have found the
essential elements of those offenses beyond a reasonable
doubt. The decision of the United States Air Force Court of
Criminal Appeals is reversed, and the findings with respect
to those specifications for production, possession, and
distribution are set aside and dismissed. The decision is
affirmed as to the remaining charge. The record of trial is
returned to the Judge Advocate General of the Air Force for
remand to the AFCCA to either reassess the sentence based
on the affirmed findings or order a sentence rehearing.
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Judge MAGGS, with whom Senior Judge STUCKY joins,
concurring.
I concur in the Court’s opinion holding that the evidence
admitted at trial was legally insufficient to sustain findings
that Appellant is guilty of three specifications alleging that
he violated Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2018), by producing, possessing,
and distributing child pornography. The Government intro-
duced evidence that Appellant sponsored a sixteen-year-old
German girl’s entry onto Ramstein Air Base, took her into his
dorm room, recorded a video of her engaging in sexually ex-
plicit conduct, stored the video and nude photos of her on his
phone, and then posted nude photos of her on the internet.
The Government, however, made essentially no effort at trial
to prove that this conduct was to the prejudice of good order
and discipline in the armed forces, as the specifications at is-
sue alleged. Because our precedent has established that the
Government must prove the “good order and discipline” ele-
ment of Article 134, UCMJ, offenses with evidence, United
States v. Gaskins, 72 M.J. 225, 233 (C.A.A.F. 2013), the Court
correctly sets aside the findings of guilt on these specifica-
tions. The offenses of which Appellant was charged were not
“of necessity incapable of proof” but the Government failed in
this case because it “did not prove them.” Varney v. Ditmars,
111 N.E. 822, 826 (1916) (Cardozo, J., dissenting).
I write separately to add a few words to what the Court
says about the pressing question of what constitutes “good or-
der and discipline” within the meaning of Article 134, UCMJ.
Although cases involving this term have arisen since the in-
ception of the United States military, neither Congress, nor
the President, nor this Court, nor the Supreme Court has sup-
plied a comprehensive definition. The reason is probably that
no comprehensive definition is possible. Some terms in law
defy general definition, and are best explained not by describ-
ing everything that they include but instead through a pro-
cess of identifying specific things that they exclude.1 In my
1 Professor Robert Summers influentially identified “good faith”
as such a term, arguing that “good faith, as used in the case law, is
best understood as an ‘excluder’—it is a phrase which has no
general meaning or meanings of its own, but which serves to
exclude many heterogeneous forms of bad faith.” Robert S.
United States v. Richard, No. 22-0091/AF
Judge Maggs, concurring
view, “good order and discipline” is such a term. Good order
and discipline in the military must be understood as a state
of affairs in which a variety of heterogeneous conditions are
not prejudiced.
What are the conditions of good order and discipline in the
armed forces? No exhaustive list yet exists. The Court ob-
serves that Colonel William Winthrop mentioned three in his
influential treatise, namely, “the condition[s] of tranquility,
security, and good government of the military service.” Wil-
liam Winthrop, Military Law and Precedents 723 (2d ed., Gov-
ernment Printing Office 1920) (1895).2 But these are not the
only conditions. As the Court also properly recognizes, the
President has identified other, more specific, conditions in the
Manual for Courts-Martial, United States (2019 ed.). For in-
stance, the President has specified that “[e]xtramarital con-
duct that is directly prejudicial to good order and discipline
includes conduct that has an obvious, and measurably divi-
sive effect on unit or organization discipline, morale, or cohe-
sion, or is clearly detrimental to the authority or stature of or
respect toward a Servicemember, or both.” Id. pt. IV, para.
99.c.(1) (emphasis added). Similarly, the President has ex-
plained that “contact or association between officers and en-
listed persons” may violate Article 134, UCMJ, if “[t]he facts
and circumstances . . . lead a reasonable person experienced
in the problems of military leadership to conclude that the
Summers, “Good Faith” in General Contract Law and the Sales
Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195, 196
(1968). Professor Summers also noted that Professor H. L. A. Hart
had identified the term “voluntary” as another such term, asserting
that “ ‘the word “voluntary” in fact serves to exclude a
heterogeneous range of cases such as physical compulsion, coercion
by threats, accidents, mistakes, etc., and not to designate a mental
element or state.’ ” Id. at 201–02 n.33 (quoting H. L. A. Hart, The
Ascription of Responsibility and Rights, 49 Proceedings of the
Aristotelian Soc’y 171, 180 (1949)).
2 In United States v. Karl, 3 C.M.A. 427, 431, 12 C.M.R. 183,
187 (1953), this Court upheld a finding that the accused had vio-
lated Article 134, UCMJ, by selling blank pass forms, concluding
that the accused’s actions were to the prejudice of each of the three
conditions of good order and discipline that Winthrop identified in
his treatise.
2
United States v. Richard, No. 22-0091/AF
Judge Maggs, concurring
good order and discipline of the armed forces has been preju-
diced by their tendency to compromise the respect of enlisted
persons for the professionalism, integrity, and obligations of
an officer.” Id. pt. IV, para. 101.c.(1) (emphasis added).
How are such conditions of good order and discipline iden-
tified? The Supreme Court supplied the answer in Parker v.
Levy, 417 U.S. 733 (1974), a case which upheld a finding that
an Army officer violated Article 134, UCMJ, by making dis-
loyal statements to enlisted soldiers. Id. at 738, 760–61. In
rejecting an argument that Article 134, UCMJ, was void for
vagueness, the Supreme Court reasoned that “longstanding
customs and usages of the services impart accepted meaning
to the seemingly imprecise standards of [Article] 134.” Id. at
746–47. The various conditions of good order and discipline
mentioned by Winthrop in his treatise and by the President
in the provisions quoted above all appear to meet Parker’s cri-
terion of being established by longstanding customs and us-
ages. Other conditions may meet this criterion as well.
Commentators have expressed important concerns about
using the term “good order and discipline” in a criminal stat-
ute when the term lacks a specific, authoritative definition.
See, e.g., Jeremy S. Weber, Whatever Happened to Military
Good Order and Discipline?, 66 Clev. St. L. Rev. 123, 132, 157
(2017). But Congress has the responsibility for the wording of
the articles of the UCMJ. This Court cannot revise the clauses
of Article 134, UCMJ, so that they are more readily defined,
nor can it adopt definitions of its own choosing that would
constrain the language of the statute. Instead, the Court is
limited to a role that the Supreme Court stressed in Parker,
namely, supplying “specificity by way of examples of the con-
duct which they cover” as it decides cases under Article 134,
UCMJ. 417 U.S. at 754.
3