Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. As used in the preceding sentence, the term “crimes and offenses not capital” includes any conduct engaged in outside the United States, as defined in section 5 of title 18, that would constitute a crime or offense not capital if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of title 18.

The terminal element is merely the expression of one of the clauses under Article 134. See subparagraph c. for an explanation of the clauses and rules for drafting specifications. More than one clause may be alleged and proven; however, proof of only one clause will satisfy the terminal element. For clause 3 offenses, the military judge may judicially notice whether an offense is capital. See Mil. R. Evid. 202.

The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. All offenses under Article 134 require proof of a single terminal element.

For clause 1 offenses under Article 134, the following proof is required:

That the accused did or failed to do certain acts; and

That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces

For clause 2 offenses under Article 134, the following proof is required:

That the accused did or failed to do certain acts; and

That, under the circumstances, the accused’s conduct was of a nature to bring discredit upon the armed forces.

For clause 3 offenses under Article 134, the following proof is required:

That the accused did or failed to do certain acts that satisfy each element of the federal statute (including, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territory, Possession, or District law); and

That the offense charged was an offense not capital.

Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the UCMJ. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate federal civilian law including law made applicable through the Federal Assimilative Crimes Act, see subparagraph c.(4). If any conduct of this nature is specifically made punishable by another article of the UCMJ, it must be charged as a violation of that article. See subparagraph c.(5)(a). However, see subparagraph 90.c for offenses committed by commissioned officers, cadets, and midshipmen.

To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

A breach of a custom of the Service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the Service are now set forth in regulations of the various armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See subparagraph 18.b.(1).

“Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

For the purpose of court-martial jurisdiction, the laws that may be applied under clause 3 of Article 134 are divided into two categories:

Federal crimes and offenses according to the terms of jurisdiction set forth in the applicable federal criminal statute. (i) Noncapital crimes and offenses prohibited by the United States Code that are punishable regardless where the wrongful act or omission occurred.

Counterfeiting is an example of a crime punishable regardless where the wrongful act or omission occurred. See 18 U.S.C. § 471.

If the direct prosecution of state and federal crimes under Article 134, clause 3 is unavailable because the offense is committed outside of otherwise applicable areas of jurisdiction, the substance of these crimes may still be prosecuted, in an appropriate case, under clause 1 or clause 2 of Article 134. In such a case, the Government would be required to prove the terminal element under clause 1 or clause 2 that the underlying misconduct was either prejudicial to good order and discipline; of a nature to bring discredit upon the armed forces; or both. 18 U.S.C. § 5 provides, “The term ‘United States’, as used in this title in a territorial sense, includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone.” 18 U.S.C. § 7 provides, “The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard. (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. (9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act— (a) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (b) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.”

The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent—there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

Although the preemption doctrine generally does not preclude charging Article 134, clause 3 offenses (crimes or offense, not capital), the preemption doctrine does preclude charging a federal “crime or offense, not capital” under Article 134 clause 3 where either direct legislative language or direct legislative history demonstrate that Congress intended a factually similar UCMJ punitive article to cover a class of offenses in a complete way.

A capital offense may not be tried under Article 134.

When alleging a clause 1 or 2 violation, the specification must expressly allege that the conduct was “to the prejudice of good order and discipline” or that it was “of a nature to bring discredit upon the armed forces.” The same conduct may be prejudicial to good order and discipline in the armed forces and at the same time be of a nature to bring discredit upon the armed forces. Both clauses may be alleged; however, only one must be proven to satisfy the terminal element. If conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.

Clauses 1 and 2 are theories of liability that must be expressly alleged in a specification so that the accused will have notice as to which clause or clauses to defend against. The words “to the prejudice of good order and discipline in the armed forces” encompass both subparagraph c.(2)(a), prejudice to good order and discipline, and subparagraph c.(2)(b), breach of custom of the Service. If clauses 1 and 2 are alleged together in the terminal element, the word “and” should be used to separate them. Any clause not proven beyond a reasonable doubt should be excepted from the specification at findings. See R.C.M. 918(a)(1). See also Appendix 17 of this Manual, Art. 79. Although using the conjunctive “and” to connect the two theories of liability is recommended, a specification connecting the two theories with the disjunctive “or” is sufficient to provide the accused reasonable notice of the charge against him. See Appendix 11 of this Manual, Art. 134. However, use of the term “or” as a charging mechanism for alleging the terminal element in an Article 134 specification (i.e. “such conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces”) is not recommended due to the risk of creating a vague and duplicitous specification, which may lead to uncertainty as to which theory of liability the members convicted the accused. To avoid ambiguity, an Article 134 clause 1 or 2 violation should be alleged as follows: (1) the conduct was prejudicial to good order and discipline; (2) the conduct was of a nature to bring discredit upon the armed forces; or (3) the conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces . See Appendix 12A for a chart of lesser included offenses.

When alleging a clause 3 violation, each element of the federal statute (including, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territory, Possession, or District law) must be alleged expressly or by necessary implication, and the specification must expressly allege that the conduct was “an offense not capital.” In addition, any applicable statutes should be identified in the specification.