Attacking Article 133 – Conduct Unbecoming Charges – on Constitutional Grounds

We recently had a successful result when a judge dismissed Article 133 – Conduct Unbecoming charges in an officer general court-martial. As a matter of philosophy, Mr. Conway is aggressive in Article 133 cases about challenging the allegations based on failure to state an offense and the concept of void for vagueness. The officer had been accused of calling his ex-wife a “stupid b**ch.” The judge ruled that there was not proper notice that using those words would be a crime under Article 133. This blog post reflects an update to our site and provides good info on Article 133. Article 133 – Conduct Unbecoming an Officer and a Gentleman – is an offense with deep roots in military history and the original Articles of War. The elements of the offense are: 1) That the accused did or omitted to do certain acts; and, 2) Under the circumstances, the acts or omitted acts constituted conduct unbecoming an officer and gentleman. The word gentleman is gender neutral in the eyes of the law. Article 133 was always intended to be a “catch-all” to create liability for actions that dishonor or disgrace officers. Because they are often vague – one of the first places to look in defending an Article 133 charge is whether the service member was on proper notice for due process purposes. The focus of Article 133, UCMJ, a purely military offense, is the effect of the accused’s conduct on his [or her] status as an officer.” Amazaki, 67 M.J. at 670 (citing United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009)), review denied, (C.A.A.F. 2009). “The gravamen of Article 133, UCMJ, is ‘[a]n officer’s conduct that disgraces him personally or brings dishonor to the military profession or affects his fitness to command the obedience of his subordinates so as to successfully complete the military mission.’” Id. (quoting United States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009)) (alteration in original). Before an officer can be convicted of an offense under Article 133, due process requires “fair notice” that the conduct “is forbidden and subject to criminal sanction.” United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). For notice, the question is whether a “reasonable military officer would have no doubt that the activities charged constituted conduct unbecoming an officer.” United States v. Frazier, 34 M.J. 194, 198 (C.M.A. 1994) (footnote omitted) (citing Parker, 417 U.S. at 757). See also Amazaki, 67 M.J. at 670 (citing Frazier for same proposition). Notice that conduct is unbecoming may be shown by custom, regulation, or otherwise. United States v. Guaglione, 27 M.J. 268, 272 (C.M.A. 1988) (citation omitted). The law recognizes that there are certain moral attributes necessary to lead troops. The bottom line is that Article 133 charges need to be challenged aggressively because military prosecutors tend to be very liberal in charging Article 133 offenses that simply do not rise to the level of criminal conduct.