The Manual for Courts-Martial has long included the following limitation on the maximum punishment for a violation of Article 92:

Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed elsewhere for that particular offense.

Since 1984, the language has been a note within paragraph 16e of Part IV of the Manual. Prior versions had the language as Footnote 5 in the Table of Maximum Punishments.

But in the 2012 version of the Manual for Courts-Martial, the language is missing (see page IV-25).

This language is important because it eliminates a particularly offensive abuse by prosecutors: charging an act or omission as the specific offense, and as a violation of some order to not commit that offense. A good example of this is charging a servicemember accused of drunken operation of a vehicle under both Article 111 and Article 92, based on some given order to not operate a vehicle while drunk. Another good (and common) example is charging restriction breaking as an orders violation. The abuse is that the addition of the Article 92 charge almost universally results in an apparent dramatic increase in the maximum punishment. In the case of a simple DUI and an applicable general order, the maximum increases from a BCD and  six months confinement to a DD and two years confinement. In the case of restriction breaking, the maximum increases from no discharge and one month confinement to a BCD and six months confinement (assuming not a general order).

There are three reasons to conclude that the omission of this language is a misprint, and not a substantive change:

1. The MCM is a reference, not a directive. As LTCOL Kennebeck explained in this post:

Parts I through V of the MCM are rules prescribed by the President pursuant to his Article 36 rule-making authority.  The actual rules are contained in EOs and are amended by subsequent EOs; therefore, I would argue that the true citation to the rule itself should reference the controlling EO – not the MCM. We all cite to the MCM regularly, but a typo or misprint in the MCM does not affect the actual rule as contained in the relevant EO.  The Discussion, analysis, and most of the appendices are non-binding, treatise-like guidance from the JSC.  Read the introduction to Appendix 21 for more detail.  The MCM is intended to be an all-in-one reference for the deployed attorney far from civilization, and its design is reflective of that goal.  In the digital age; however, the usefulness of its references may be waning.

He’s right, even though we’re not likely to stop citing to the MCM any time soon…

2. The controlling Executive Order is still in effect. The President last addressed this language in Executive Order 12473, dated April 13, 1984, in which he promulgated the 1984 Manual for Courts-Martial (a wholesale revision from the 1969 Manual). Only two edits have been made to Paragraph 16 since, one in 1986 (EO 12550) and one in 2005 (EO 13387). Neither affected this language or the maximum authorized punishments in any way.

3. The reference to the language in Appendix 12 – the Maximum Punishment Chart – is unchanged. Footnote 2 of the Maximum Punishment Chart in the 2012 Manual reads:

See paragraph 16e(1) & (2) Note, Part IV

This is unchanged from the 2008 Manual, and a similar note dates back to the 1984 Manual.

Misprints happen of course, and the Manual for Courts-Martial is a massive document whose assembly and publication is the literary equivalent of the shots that saved Maersk Alabama Captain Richard Phillips. In this case, it looks like the omission is a simple error, and the punishment limitation still applies.

4 Responses to “Did the maximum punishment for Article 92 change? No.”

  1. Gene Fidell says:

    Readers who are interested in this topic may want to look at Is There a Common Law of Footnote Five?, 24 JAG J. 157 (1969-70). 

  2. Hines says:

    I didn’t realize it was news to anyone that one cannot be charged for not obeying an order to follow the law.

  3. Zachary Spilman says:

    It’s not exactly the same point, but tell that to Airman First Class Hayes who was convicted of dereliction of duty, “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” CAAF passed on that opportunity to draw such a bright line.

  4. Devin Winklosky says:

    Good catch and great points.  In addition to Gene Fidell’s recommended reading, these two appellate discussions on Footnote 5 and the “ultimate offense doctrine” are informative:  U.S. v. Battle, 27 M.J. 781 (A.F. Ct. Mil. Rev. 1988) and U.S. v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999).  In fact, Hargrove specifically says

    Military law has long held that minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors. See United States v. Loos, 4 USCMA 478, 16 CMR 52 (1954).FN2  The President has continued this principle in the present Manual for Courts-Martial, United States (1998 ed.). See para. 16e(2)(Note), Part IV.

    Footnote 2 of Hargrove further states:

    Practitioners of military justice colloquially referred to such charges as “footnote 5” offenses, from the footnote to the Table of Maximum Punishments in the 1951 and 1969 Manuals for Courts-Martial, United States, that limited the punishment to actual offenses committed by the accused, not the greater punishment prescribed for the more serious offenses against authority set forth in Articles 90, 91, and 92, Uniform Code of Military Justice, 10 USC §§ 890, 891, and 892, respectively. This was also known as the “ultimate offense” test.

    Ultimately, I think you’re right that, despite the omission in the present MCM, the E.O. remains in effect and the President intends to keep the longstanding limitation in place.