Article 133: Conduct Unbecoming an Officer — Crimes — CAAF Opinion Digest

United States v. Gonzalez, 86 M.J. 165 · decided Sep 15, 2025 · No. 25-0032/AR

a higher code termed honor holds military officers to stricter accountability than enlisted and civilian personnel; Article 133, UCMJ, embodies this standard, providing that any 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; in order to obtain a conviction under Article 133, UCMJ, the government must prove that the accused did or omitted to do a certain act, and that under the circumstances this conduct constituted conduct unbecoming an officer
the gravamen of the Article 133, UCMJ, offense is that the officer's conduct disgraces him 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; conduct unbecoming is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty; a determination whether conduct is unbecoming requires a court to take all of the circumstances into consideration; in determining whether a servicemember had fair notice that conduct violates Article 133, UCMJ, the question is whether a reasonable military officer would have no doubt that the activities charged in this case constituted conduct unbecoming an officer
for purposes of determining if a specification charges fraternization, the test is if it looks like fraternization and the parties treated it like fraternization, it is fraternization
in this case, considering the language of the specification in its entirety, the government's articulated theory of the case, and the defense's agreement that fraternization was the most analogous offense, the gravamen of the charged conduct was fraternization; because it is well established that fraternization may be charged as conduct unbecoming an officer, any reasonable officer would have no doubt that fraternizing with a junior enlisted trainee by kissing her on the lips can be sanctioned as conduct unbecoming an officer in violation of Article 133, UCMJ
in this case, the MCM (2019 ed.), Army regulation, and military custom and usage provided appellant fair notice that kissing a junior enlisted trainee who was not his wife on the lips in public was prohibited conduct unbecoming an officer; a reasonable officer would know that such conduct -- not simply an extramarital kiss on the lips but an officer's extramarital kiss on the lips of a junior enlisted trainee -- was unbecoming an officer; although there are many gradations of relationships and associations between servicemembers that will not put the parties fairly on notice that the conduct might be inappropriate, this was not such a case

United States v. Grijalva, 84 M.J. 433 · decided Jun 26, 2024 · No. 23-0215/CG

the preemption doctrine generally prohibits using Articles 133 and 134, UCMJ, to charge conduct covered by Articles 80 through 132, UCMJ
the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ