ARTICLE 133 – CONDUCT UNBECOMING
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:
- That the accused did or omitted to do certain acts; and,
- 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 the 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 the 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.
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. We recently (January 2016 ruling) had an Article 133 charge dismissed on those grounds. 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.
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.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
Gary Myers Partner
Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More