U.S. v. Fosler, 70 M.J. 225

First Principles: Constitutional Matters: Generally

1. the Constitution protects against conviction of uncharged offenses through the Fifth and Sixth Amendments; the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation

First Principles: Constitutional Matters: Due Process

1. the Constitution protects against conviction of uncharged offenses through the Fifth and Sixth Amendments; the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation
2. no principle of procedural due process is more clearly established than notice of the specific charge and a chance to be heard in a trial of the issues raised by that charge

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met: that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134
2. the three clauses of Article 134 constitute three distinct and separate parts; violation of one clause does not necessarily lead to a violation of the other clauses; clause 1, disorders and neglects to the prejudice of good order and discipline, is not synonymous with clause 2, conduct of a nature to bring discredit upon the armed forces, although some conduct may support conviction under both clauses; this is particularly true of clause 3, crimes and offenses not capital
3. an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice
4. the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element
5. when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled
6. because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification

Core Criminal Law Subjects: Crimes: Article 134 - Adultery Pre-2019 offenses

1. an accused cannot be convicted under Article 134 if the trier of fact determines only that the accused committed adultery; the trier of fact must also determine beyond a reasonable doubt that the terminal element of prejudicial or service discrediting conduct has been satisfied
2. an allegation that appellant wrongfully engaged in adulterous conduct in violation of Article 134 did not necessarily imply the terminal element of prejudicial or service discrediting conduct; because adultery, standing alone, does not constitute an offense under Article 134, the mere allegation that an accused has engaged in adulterous conduct cannot imply the terminal element; likewise, the word “wrongfully” cannot of itself imply the terminal element; “wrongfully” is a word of criminality, and words of criminality speak to mens rea and the lack of a defense or justification, not to the elements of an offense; finally, the inclusion of the words “Article 134” in the charge does not imply the terminal element; the words “Article 134” do not, by definition, mean prejudicial to good order and discipline, of a nature to bring discredit upon the armed forces, or a crime or offense not capital; these components of the charge and specification do not imply the terminal element alone or when combined

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

1. to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met: that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134
2. the three clauses of Article 134 constitute three distinct and separate parts; violation of one clause does not necessarily lead to a violation of the other clauses; clause 1, disorders and neglects to the prejudice of good order and discipline, is not synonymous with clause 2, conduct of a nature to bring discredit upon the armed forces, although some conduct may support conviction under both clauses; this is particularly true of clause 3, crimes and offenses not capital
3. an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice
4. the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element
5. when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled
6. because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification

Trial Stages: Pretrial: Charges and Specifications

1. to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met: that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134
2. the military is a notice pleading jurisdiction; a charge and specification will be found sufficient if they, first, contain the elements of the offense charged and fairly inform an accused of the charge against which he must defend, and, second, enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense
3. a specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication; this requirement ensures that an accused understands what he must defend against
4. an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice
5. minor and technical deficiencies are not fatal to a charge and specification, assuming they do not prejudice the accused
6. the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element
7. when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled
8. because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. although Congress delegated to the President certain rulemaking authority under Article 36, UCMJ, not everything in the MCM represents an exercise of that authority, and the President does not have the authority to decide questions of substantive criminal law
2. some of the MCM is merely explanatory or hortatory; the sample specifications and drafters’ analysis are included among these categories and do not purport to be binding

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. although Congress delegated to the President certain rulemaking authority under Article 36, UCMJ, not everything in the MCM represents an exercise of that authority, and the President does not have the authority to decide questions of substantive criminal law
2. some of the MCM is merely explanatory or hortatory; the sample specifications and drafters’ analysis are included among these categories and do not purport to be binding
3. the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element

Miscellaneous Matters: Judicial Review: Stare Decisis

1. the doctrine of stare decisis does not apply when a statute, executive order, or other basis for a decision changes
2. stare decisis cannot possibly be controlling when the decision in question has been proved manifestly erroneous and its underpinnings eroded by subsequent decisions of the Supreme Court