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Article 134 consists of three types of offenses. The first clause of Article 134 punishes offenses prejudicial to good order and discipline that are not made punishable by other articles of the Code. The second clause of Article 134 punishes offenses that are of a nature to bring discredit on the armed forces, and the third clause punishes acts of misconduct that are not punishable by other articles of the Code but which are criminal offenses under federal law triable in the federal courts.

In United States v. Sadinsky, 34 U.S.C.M.A. 563, 34 C.M.R. 343 (1964), the United States Court of Military Appeals discussed the application of Article 134 to offenses not specifically prohibited by the Uniform Code of Military Justice. In Sadinsky, the accused was tried by special court-martial convened aboard the U.S.S. INTREPID. The accused pleaded guilty to unauthorized absence, missing movement, and breach of restriction, in violation of Articles 86, 87 and 134. The accused also was charged with a violation of Article 134 alleging that he "did wrongfully and unlawfully . . . through design jump from U.S.S. INTREPID (CUS-11) into the sea." To this last offense, the accused pleaded not guilty. The accused was convicted of all offenses and sentenced to a bad conduct discharge, confinement at hard labor for 5 months, and forfeiture of $55.00 per month for 5 months.

On review the Court of Military Appeals noted the specific provisions of Article 134 and stated that:

It is well settled that the quoted statute is not void for vagueness. See United States v Frantz, 2 USCMA 161, 7 CMR 37, and authorities therein collated. See also Dynes v. Hoover, 20 Howard 65 (U.S. 1858). Nor does the defense contend otherwise. However, as appellate defense counsel points out, the General Article is not such a catchall as to make every irregular, mischievous, or improper act a court-martial offense. Rather, as this Court stated in United States v Holiday, 4 USCMA 454, 456, 16 CMR 28:

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". . . [T]he Article contemplates only the punishment of that type of
misconduct which is directly and palpably—as distinguished from indirectly
and remotely—prejudicial to good order and discipline."

See also the admonition of paragraph 213a, Manual for Courts-Martial, United
States, 1951, to the same effect.

We need not be concerned with the second and third categories set forth in Article 134, supra. The problem before us is simply whether the specification in question alleges commission of an act which is palpably and directly prejudicial to good order and discipline. The defense asserts that it does not, but we conclude to the contrary.

The specification alleges that accused wrongfully and unlawfully, and through design, jumped from the aircraft carrier on which he served into the sea. That pleading flatly eliminates any possibility that the accused was pushed or slipped, or that the incident otherwise resulted from misfortune, accident, or negligence. Moreover, although addition of words of criminality-in this case that the act was done "wrongfully and unlawfully”—cannot make criminal acts which obviously are not, here that allegation serves to demonstrate the proscribed character of accused's act. Manual for Courts-Martial, United States, 1951, paragraph 28a (3). See, in this connection, United States v Bunch, 3 USCMA 186, 11 CMR 186; United States v Fout, 3 USCMA 565, 13 CMR 121; United States v. Julius, 8 USCMA 523, 25 CMR 27; United States v Brown, 12 USCMA 368, 30 CMR 368; United States v Gaskin, 12 USCMA 419, 31 CMR 5; United

States v Holland, 12 USCMA 444, 31 CMR 30; United States v Reid, 12 USCMA 497, 31 CMR 83; United States v Annal, 13 USCMA 427, 32 CMR 427. Thus, the pleading makes clear that accused did not, under unusual circumstances, jump overboard in the course of his legitimate duties as, possibly, to rescue a shipmate, or for some other purpose which might be completely innocent. While such acts might not be offensive, they are effectively excluded by the terms of the specification.

Can it be said, then, that accused's act of jumping from his ship, as the specification alleges he did, falls into a category having merely a remote or indirect impact on good order and discipline? We conclude not. In our view the direct and palpable prejudicial impact of his alleged conduct is manifest. Indeed, although the evidence cannot prop up a defective specification, the proof adduced at trial in support of this offense forcefully illustrates the validity of the conclusion we reach.

It was shown that the incident occurred in the early evening, as it was beginning to get dark. The ship was underway, in a rough sea, proceeding at the rate of approximately ten to fifteen knots. The accused and other members of the crew were standing on an elevator positioned at the flight deck, waiting for aircraft to come down. Accused had wagered a substantial amount with shipmates who did not believe he would jump, one of whom offered an additional sum if accused would do a backflip. He distributed his wallet and watch, along with other items, to his companions, so that they would not get wet. It would have been impossible to swim ashore and, prior to jumping, accused discussed the length of time it would take to rescue him. Further, he asked witnesses to say at any resulting inquiry that he slipped. Accused then jumped from the ship, and in fact did a backflip as he went over the side into the sea. The aircraft carrier did not stop to pick him up, but accused was subsequently recovered from the sea by a destroyer.

To state such a proposition provides the answer. As the Government argues in its brief, "An intentional wrongful and unlawful jumping into the sea from the deck of a carrier, could not possibly have any result other than disruption of good order and discipline, not to mention the possibility of endangering the property and lives of others in rescue operations."

The majority of the board of review members, notwithstanding pointed out that the instant specification did not allege facts bringing the accused's act within the prohibition of some order, regulation, or statute limiting conduct or defining the offense sought to be charged. Based on the absence of pleading such prohibition, the majority concluded the specification failed to allege a cognizable offense.

We find no force in the premise they relied upon. Rather, we are in agreement with the dissenting board member that the specification properly alleged a military disorder violative of Article 134, Uniform Code of Military Justice, supra.

To superimpose a requirement that conduct be prohibited by some order, regulation, or statute in order to fall within the prosciption of the first category of Article 134 would be contrary to the clear and fair meaning of its terms. If certain acts fell within other specific articles of the Code, they would, manifestly, be "specifically mentioned" elsewhere in the Code, and be outside the scope of the General Article. If the proscription were by other Federal statute, the third category of Article 134 would apply. And were the prohibition made by order or regulation, Article 92, Uniform Code of Military Justice, or perhaps Articles 90 or 91 of the Code, would be involved. Clearly, applying such a standard would effectively emasculate the very essence of Article 134, which is by definition intended, inter alia, to reach acts not otherwise covered but which are prejudicial to good order and discipline.

As early as United States v Snyder, 1 USCMA 423, 4 CMR 15, we indicated that the critical inquiry, with regard to the first category of offenses covered by Article 134, was whether the act was palpably and directly prejudicial to the good order and discipline of the service—this notwithstanding that the act was not otherwise denounced. That reasoning is equally applicable here and, as we have seen, it is clear the act committed by accused meets that test. Here the fact that accused's conduct, as alleged, was inimical to good order and discipline was instructed on by the president, and such finding was returned by the members of this special court-martial. See United States v Williams, 8 USCMA 325, 24 CMR 135. And, as was noted in that case; e.g., one of this Court's early decisions held such an allegation need not be made in a specification laid under the General Article. See United States v Marker, 1 USCMA 393, 3 CMR 127.

For these reasons we held that the specification in question did properly allege a violation of Article 134, Uniform Code of Military Justice, supra. It adequately set forth the offense charged, sufficiently apprised accused of what he must be prepared to meet, and the record accurately reflects the extent to which he might claim jeopardy in any future case. See United States v Sell, 3 USCMA 202, 11 CMR 202.

For these reasons the United States Court of Military Appeals affirmed the accused's conviction.

In 1974 in Parker v. Levy, 417 U.S. 733 (1974), the constitutionality of Articles 133 and 134 were challenged as being vague and overbroad. In an opinion written by Justice Rehnquist the Court stressed the differences between military and civilian societies and upheld the constitutionality of Articles 133 and 134. In Secretary of the Navy v. Avrech, 418 U.S. 676 (1974), the Supreme Court similarly upheld the constitutionality of Article 134 and reversed a decision of the United States Court of Appeals decision for the District of Columbia holding that Article 134 was unconstitutionally vague.

CHAPTER 7

INTERNATIONAL LAW

INTRODUCTION

Many Army operations take place in other nations, and much planning is directed toward operations that will occur in other nations. As a result, the Army officer should understand how nation states relate and deal with each other. Over the decades a body of rules, or guides, has been developed to express or clarify these state relationships. This body of rules is the substance of the international legal system. It is not necessary to know all of these rules nor to know all of the interworkings and intricacies of the international system. A general explanation will serve to aid the Army officer in understanding the functions and operations of the military and the US in their relationships with other nations. What is International Law?-Traditionally scholars have defined international law as a body of rules that govern conduct between and among states. This view is necessarily rule oriented and has emphasized the mechanical and limited ways in which states can create international law rules. Generally, only states are the actors or subjects of international law, and they make law through international agreements or through their habitual observance of a rule. International law is generally considered to come from—

a. International conventions.

b. International custom, as evidence of a general practice accepted as law.

c. The general principles of law recognized by civilized nations. Several other views of international law have also developed.

Law and Policy-Some modern scholars view international law as a criteria for judging national activities in the international arena against a background of policy goals. Initially, certain basic and important goals, shared values and expectations must be established for states in their interrelationships. The enhancement of human dignity is an example. The policies enuniciated for attainment of those goals can be expressed as "legal norms." Subsequent action or proposed action by individual states can then be judged by their consistency with the policy goals. Thus, an action determined to be inconsistent with the goals and legal norms would be termed "illegal"; if consistent with them, it would be termed "legal." In short, this view judges national decisionmaking

and action by a set of prior existing game rules. Such judgment can be either as input prior to the decision or action, or as a review of past actions.

Functional Law-A second view of law and policy is more functional in nature. By it, states look to the attainment of a particular objective. The desired result may be expressed as a "legal rule" controlling the conduct of states that have the same or similar objectives. In this manner, international law is serving a functional purpose. As society grows and changes under the impact of technological advancement, so do the needs and desires of society. This view of international law permits these changing needs and desires to be expressed in terms of legal rules. This concept of international law is frequently criticized as providing a legal rationalization for state action rather than a legal analysis or judgment of state actions.

Law as a Guide-One view of international law is that its body of laws provides a network within which states can relate to each other. Whether it concerns nuclear disarmament, business enterprises, termination of hostilities, or other matters, the United States must communicate and deal with other nations in the world and vice versa. International rules provide a common language for communication and a series of guideposts telling states where and how they can relate with each other. This view is frequently called the international law of cooperation. It stresses the importance of mutual national interests as the basis of an effective legal system.

International Law and the Military-For the military officer, it is not necessary to have a hard and fast definition of international law. As world conditions change, the favor or disfavor of different views will also change. It is important to remember, however, that "international law," whatever definition may be given to it, does have an impact on the decisions and actions of the US. As the military departments operate extensively with and in other nations, this impact is felt on military operations. To some degree, the rules of the international legal system do guide or direct the conduct of states in their international relations, and thus affect the activities of the Army and its personnel.

As early as 1900, the Supreme Court ruled in The Paquette Habana, 175 U.S. 677 (1900), that international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are presented for determination. Thus, if there are no relevant treaties, which under Article 6 of the Constitution are the "supreme law of the land," and US courts are to apply the customary law of nations. The courts have so applied the customary law of nations to situations affecting the Army. For example, the Supreme Court recognized the applicability of the laws of war to military conduct in the case of In re Yamashita, 327 U.S. 1, 16 (1945). The Court stated, "We do not make the laws of war

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