U.S. v. Erickson, 61 M.J. 230

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. Article 134, UCMJ, prohibits all disorders and neglects to the prejudice of good order and discipline in the armed forces; but it is not such a catchall as to make every irregular, mischievous, or improper act a court-martial offense; conduct prejudicial to good order and discipline must cause a direct and palpable prejudice to good order and discipline
2. Appellant’s plea of guilty to wrongful inhalation of nitrous oxide under Article 134, UCMJ, was provident where he admitted that his inhalation of the substance could produce damage to the brain; the admission regarding impairment of mental faculties reflected Appellant’s understanding that he had engaged in conduct that would undermine his capability and readiness to perform military duties -- a direct and palpable effect on good order and discipline; Appellant has provided no information on appeal that would undermine the validity of his acknowledgement at trial as to the harmful effects of inhalation of nitrous oxide; on the contrary, this Court takes judicial notice of the fact that a number of states have recognized the harmful effects of the inhalation of nitrous oxide by criminalizing it; however, such state action is not necessary to sustain a wrongful inhalation conviction under Article 134; the state laws here simply underscore the absence of a basis in the present case for questioning the factual sufficiency of Appellant’s statements during the plea inquiry
3. the military preemption doctrine limits the application of Article 134, UCMJ, with respect to conduct covered by the specific punitive articles; this statutory interpretation doctrine does not necessarily preclude treatment of offenses under Article 134 whenever there is a similar offense in the specific punitive Articles; simply because the offense charged under Article 134 embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine; for an offense to be excluded from Article 134 based on preemption, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way
4. the inhalation of an intoxicating substance charged under Article 134, UCMJ, is not preempted by Article 112a, UCMJ, which bears the heading “Wrongful use, possession, etc., of controlled substances”; the legislative history of Article 112a reflects congressional intent to not cover the class of drug-related offenses in a complete way; there is nothing on the face of the statute creating Article 112a or in its legislative history suggesting that Congress intended to preclude the armed forces from relying on Article 134 to punish wrongful use by military personnel of substances, not covered by Article 112a, capable of producing a mind-altered state; to the extent that dicta in Reichenbach, suggests otherwise with respect to prejudicial or service-discrediting conduct, see 29 M.J. at 136-37, we decline to adhere to that view

Core Criminal Law Subjects: Evidence: Judicial Notice

1. this Court takes judicial notice of the fact that a number of states have recognized the harmful effects of the inhalation of nitrous oxide by criminalizing it

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. this Court reviews the military judge’s acceptance of an appellant’s guilty plea for abuse of discretion; the test is whether there is a substantial basis in law and fact for questioning the guilty plea