CORE CRIMINAL LAW SUBJECTS: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman

2001

United States v. Rogers, 54 MJ 244 (specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness where it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation of custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134).

(officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships).

(there is certain conduct to which Article 133 clearly applies without vagueness of imprecision; but where areas of uncertainly as to the coverage of the article remain, further content may be supplied by less formalized custom and usage, and the officer charged with an Article 133 offense must have fair notice that his or her conduct was punishable).

(specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer did not fail to state an offense because it did not specify the acts which constituted the unprofessional relationship; the acts did not constitute the relationship, rather they evidenced that relationship, and appellant was notice of those acts which were set forth in a Bill of Particulars as supplemented by the Article 32 investigating officer’s report).

(evidence was legally sufficient to support finding of guilty of specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer – this evidence is set forth in some detail in the Senior Judge Cox’s opinion).

United States v. Frelix-Vann, 55 MJ 329 (dual convictions under Article 133 and Article 121, UCMJ, cannot be sustained when based on the very same act, i.e., where the criminal conduct alleged in the Article 121 violation is the sole basis for the allegation of conduct unbecoming an officer under Article 133).

United States v. Brown, 55 MJ 375 (Article 133, prohibiting conduct unbecoming an officer and a gentleman, is constitutional as applied to members of the armed forces, so long as the accused has received fair warning of the criminality of his or her conduct).

(Article 133 is not violated by conduct that falls short of the attributes of an ideal officer and the perfect gentleman or by slight deviations constituting indecorum or breaches of etiquette, but by conduct that exceeds the limit of tolerance set by the custom of the service to which the officer belongs).

(in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, military judge did not abuse his discretion by admitting Air Force Pamphlet setting forth policy on sexual harassment to show notice of the type of conduct that was prohibited and to establish the applicable standards of conduct in the Air Force community).

(in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, notice of the type of conduct that was prohibited and the applicable standards of conduct in the Air Force community was particularly important where the charges alleged verbal and physical sexual harassment as the unbecoming conduct; under these circumstances, pamphlets or other evidence of customs and standards limiting communications with fellow officers of the opposite sex provide notice of the distinctions between permissible banter and impermissible remarks).

(Air Force Pamphlet setting forth policy on sexual harassment was relevant in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, because:  (1) pamphlet’s focus on “unwelcome” comments provided notice of the standard for making the critical distinction between permissible and impermissible speech; and, (2) the pamphlet set a standard that conduct be not merely offensive, but that it be so severe or pervasive that it creates a hostile work environment).

(Air Force Pamphlet setting forth policy on sexual harassment was relevant in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, but it may be necessary in given cases to protect against the impermissible introduction of command policy into the deliberation room by redacting some examples or by providing tailored instructions explaining the difference between examples and standards of conduct, and further explaining the manner in which the standards of conduct apply to the elements of proof).

(evidence was legally insufficient to support findings of guilty of conduct unbecoming an officer and a gentleman for persistently directing comments and questions of a personal or sexual nature to three fellow officers; the government had relied upon the policy of an Air Force pamphlet on sexual harassment to show notice of the type of conduct that was prohibited and to establish the applicable standards of conduct in the Air Force community, and the evidence showed that the verbal conduct at issue did not violate the standard relied upon by the government).

(evidence was legally sufficient to support findings of guilty of conduct unbecoming an officer and a gentleman for physical contact with fellow officers where the contact involved intimate contact with members of the opposite sex that was not incidental, collegial or innocuous, and it was not reasonable for appellant to assume that his fellow officers would consent to physical contact of an intimate nature absent some communication of receptivity or consent).

2000


United States v. Henley, 53 MJ 488 (under the circumstances of this case involving long-term sexual abuse of appellant’s natural children, a rational finder of fact, given proper instructions, could conclude that possession of nude photographs of children and adolescents brings disgrace upon an officer of the armed forces).


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