One of the Uniform Code of Military Justice’s Most Flexible Charges – Conduct Unbecoming, can be used to allege a wide variety of offenses.
The Breadth of the Charge of Conduct Unbecoming
Article 133, Uniform Code of Military Justice (UCMJ) states that, “[a]ny commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” Being so broad, this language is rife for abuse by commanders and Judge Advocates for the imposition of their own moral code or long ago antiquated norms that persist in the military. Importantly, as the United States Court of Appeals for the Armed Forces has held, “the appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising . . . notwithstanding whether or not the act otherwise amounts to a crime.” In other words, the conduct charged does not even have to be a crime – to be a crime.
So Can a Commander Charge Anything He/She Wants?
While commanders have very broad discretion, some limits have been placed on the use of this charge. As the United States Court of Appeals for the Armed Forces has held, the charge of Conduct Unbecoming, “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 [only] by conduct that exceeds the limit of tolerance set by the custom of the service to which the officer belongs.” However, while this sounds like a good limit, in practice, numerous questions arise, such as how customs are determined and who determines them.
Gratefully, however, there are some concrete limits. First, a charge for an offense under Article 133, UCMJ, cannot be based on the exact same act as another charge. Put simply, if the military charges you for an offense under say Article 120, they cannot then say, “oh yea, and it also violates Article 133, UCMJ.” Instead, there must be a difference in the acts charged. The purpose of this is to prevent the prosecution from overcharging what is essentially a single act. Additionally, in order to be found guilty of the offense, the conduct must be such that it “disgraces [the officer] personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission. So, put simply, the conduct cannot just be embarrassing to the military – it must affect one’s ability to lead his or her subordinates.
So, There are Limits Then, Right?
The answer is . . . yes, sort of, well, maybe. Think about it. While the language in the above cases makes sense and seems to limit what commanders and Judge Advocates can charge, how hard do you think it is to show, to a jury of officers, that you have done something they think affects your ability to lead subordinates. As a former prosecutor and defense counsel in the military, I would argue not hard at all. The jury is officers. And they will likely believe your conduct is a personal reflection on them. Because of this, Conduct Unbecoming might be one of the easiest charges to prove. And while the prosecutors are limited on what can be sustained as a conviction as discussed above, it is not unheard of to charge Conduct Unbecoming for the very same act as another charged offense. How do the Judge Advocates do this? Simple – they charge both the substantive offense and Conduct Unbecoming, and see which one they get a conviction on. And if by some magic they get a conviction on both charges, the prosecutors can simply ask that one of them (probably the one with the lowest maximum punishment) be dismissed by the military judge.
If you have been convicted of Conduct Unbecoming, or any offense in the military, give my firm a call. As the former #1 appellate defense counsel in the Air Force and the former senior legal advisor to the Chief Judge at the Court of Appeals for the Armed Forces, I have a great deal of experience in court-martial appeals. All initial consultations are free of charge and I’d welcome the opportunity to discuss your case with you.
 Though it references a “gentleman,” this charge is equally applicable to female officers.
 United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009); see also United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009) (“An officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ.”).