Air Force Colonel Jeremy S. Weber recently published an article in the Cleveland State Law Review entitled, “Whatever Happened to Military Good Order and Discipline?” 66 Clev. St. L. Rev. 123 (2017).

Colonel Weber’s article starts by exploring the marked decline in the use of the Uniform Code of Military Justice’s “general article,” Article 134, Uniform Code of Military Justice (UCMJ), which criminalizes “all disorders and neglects to the prejudice of good order and discipline.” Id. at 153-156. Colonel Weber posits that commanders have been less willing to use the “general article” to punish offenders for several reasons.

First, the general article has never been perceived as particularly fair:

Its broad scope has long been recognized as the ‘most comprehensive and potentially most subject to abuse; hence its traditional British nickname, “the Devil’s Article.’”

Id. at 131 (citation omitted).

But, there may be another reason as well – a more fundamental one. Commanders may not be holding their subordinates to the “good order and discipline” standard because nobody really knows what that phrase means.

A study of appellate cases involving guilty pleas, where the accused admitted to having engaged in conduct that was to the prejudice of good order and discipline, demonstrates this point starkly. Any guilty plea requires the accused to complete a providence inquiry with the judge – to articulate how, in the accused’s mind, he or she is guilty of each of the elements of the offense. Intermediate appellate courts in the military review those articulations for legal sufficiency. A trend has emerged:

[A] search of military appellate decisions revealed at least twenty-one cases since 1990 in which courts have overturned guilty pleas under [the general article’s] good order and discipline clause. These cases expose a repeating pattern of accused service members struggling to explain why they believed their conduct prejudiced good order and discipline. Likewise, in these cases, military judges have lacked the ability to help accused members articulate this point.

Id. at 137.

The lack of any sort of common and testable definition of “good order and discipline” has resulted in “individual judges our court members [having to] decide for themselves whether specific acts prejudiced good order and discipline based on their individual, unstated, fact-specific criteria.” Id. at 145. The result of such a subjective standard is wide variability in application – a condition usually regarded as being intolerable to the orderly and fair administration of justice.

For example, in 1988, a transgender sailor’s cross-dressing while on a naval installation was found to violate the general article “on its face.” United States v. Davis, 26 M.J. 445, 446 n.1 (C.M.A. 1988). Such behavior is not criminalized today. In fact, according to this article from the Editorial Board of the New York Times, leaders from each service recently testified before Congress that the presence of transgender service members “do[es] not impair the cohesion of military units or discipline.” The general article has not changed. All that has changed is the subjective application of that statute. A commander might be hesitant to employ such a subjective and uncertain standard against their subordinates. That may explain the declining use of the general article’s “good order and discipline” provision for punitive purposes.

But, while commanders may be less eager to use “good order and discipline” as a rationale for punishment, their uncertainty regarding that phrase has not prevented them from using it as a cure-all incantation in their communication with policymakers. As Colonel Weber notes :

[M]ilitary leaders’ summary, short-hand use of the term has led to widespread critique that “good order and discipline” is nothing more than military slang for ‘we don’t like something but we don’t want to explain why.”

Id. at 165.

This cynicism has been invited by a pattern of crying wolf. Key military leaders, from all services, vehemently opposed racial integration under the guise that it “would interrupt the morale, discipline, and efficiency of fighting units”, would cause a “lowering of contentment, teamwork, and discipline in the service”, and would cause a loss of “teamwork, harmony, and efficiency.” Id. at 166. Thankfully, President Truman was unpersuaded and, by executive order, integrated the military forces of this Constitutional Republic in 1948. But, that was not the end of the “good order and discipline” incantation. It was repeated, and always without any meaningful elaboration, to oppose the presence of homosexual service members in uniform, and to exclude women from combat service. Id. at 167. Those efforts to prevent integration failed as well, and none of the supposed harm to “good order and discipline,” whatever was meant by that enchantment when it was used, has ever materialized. Id. at 167-168.

Because of the undisciplined rhetorical use of the concept of “good order and discipline” by military leaders, the public now tends to view objections along that line to be dishonest. As illustration, Colonel Weber’s article, at 171, points to an op-ed published by the Chicago Tribune:

[S]omehow our military managed to survive putting blacks and whites in the same billets. Somehow it became the most powerful fighting force on Earth following the intrusion of females. A year after gays were admitted, Amos said, “I’m very pleased with how this turned out.”

The people in charge of the services may have the best of intentions in dealing with sexual assault. But they have a habit of rejecting reasonable changes on the basis of fears that turn out to be unfounded.

To promote a common understanding for what it means to have “good order and discipline,” and hopefully to temper the use of that phrase both for criminal justice and rhetorical purposes, Colonel Weber proposes the following definition be included in the Manual for Courts-Martial and employed by military leaders when discussing policy matters:

Good order and discipline is the crucial component of military effectiveness. Military units require good order and discipline because military service requires a subjugation of self to the good of the whole to a degree not understood in civilian society, requiring service members to set aside their natural instincts of self-preservation and comfort-seeking behavior. The nature of military service requires good order and discipline to be instilled from the first day of military service and maintained at all times, whether in combat overseas or in peacetime operations in garrison.

Good order and discipline is a singular term, but it consists of two interrelated concepts. The first is good order. Good order means that the military unit functions in an organized military manner. Personnel understand their role in the organization and carry out their functions professionally and willingly. Members of the unit form a cohesive whole bound together out of a mutual sense of pride in the unit and a desire to have the unit succeed in its mission. Diversity of backgrounds, worldviews, and personal characteristics is welcomed and productive, with the nonnegotiable condition that each member seeks to integrate his or her own unique characteristics into the larger organization for its good.

Military discipline is intelligent, willing, and positive obedience to the will of the leader, regardless of personal cost. Military discipline starts with the principle of command authority, in which a unit’s leader owns both the authority and the responsibility for enforcing military standards and instilling a sense of obedience. In combat, military discipline represents the self-control to unwaveringly focus on the mission regardless of personal hardship, danger, fear, physical exhaustion, or distraction, recognizing that only through each individual obeying the lawful orders of his or her superior can the unit succeed. During in-garrison operations, military discipline may be even more difficult but is no less important, requiring a constant emphasis on the military’s core mission in order to maintain readiness for combat. Military discipline does not come naturally. It must constantly be instilled, cultivated, and reinforced.

Good order and discipline does not equate to blind loyalty to the individual leader. Personal bonds between leader and follower are natural in effective units, and in most instances, good order and discipline demands obedience to the commander or leader. However, good order and discipline requires loyalty to the Constitution and the larger organization above any individual, including the leader, in the rare situations where those interests clearly diverge.

The tools for instilling and maintaining good order and discipline include command presence and example, prompt and even-handed discipline for infractions, and recognition of exceptional performance. While changes in technology, demographics, and society may necessitate modifications in style, the underlying means and principles of leadership necessary to instill and maintain good order and discipline largely remain timeless.

To be punishable under Article 134 of the Uniform Code of Military Justice, acts must directly prejudice good order and discipline in an articulable fashion. Acts which remotely or indirectly prejudice good order and discipline may be dealt with through administrative action or other means, but not through punishment under this Code. Factors to consider in whether an act directly prejudices good order and discipline include:

(1) Did the act raise an appreciable risk of others engaging in similar behavior?

(2) Did the act negatively impact the unit’s performance to any measurable extent?

(3) Did the act negatively impact the authority, stature, or respect of unit leadership?

(4) Did the act occur during the performance of the member’s duty, on a military installation, or in the presence of other members of the unit?

(5) Was the act known to other members of the unit?

(6) Did the act occur after counseling or other actions taken regarding the same or similar conduct?

(7) Were other unit members placed in danger as a result of the act?

Id. at 166-167.

Colonel Weber’s proposal deserves careful consideration.

16 Responses to “Scholarship Saturday: Defining “good order and discipline” with an eye to demystifying the phrase, to preventing its misuse, and to regaining credibility”

  1. stewie says:

    Overall, hard to disagree with COL Weber’s thesis. To me adultery helps explain this.
     
    Consider two versions:
     
    1. Having sex with another man’s wife who is a civilian. No tie to good order and discipline. Purely a private matter between consenting adults.
     
    2. A Lieutenant having sex with the wife of one’s of his subordinates.  Absolutely a tie to good order and discipline.

  2. Joonka says:

    Col Weber, missed the boat in his analysis  of article 134’s use and its decline, any examination of the article and it purported decline in use must lend serious empirical analysis of its affront to the constitutional bedrock of American law since coming into been as a relic of the kings pretend crimes.

    Void for vagueness’ doctrine has made a serious come back at the United States Supreme Court since the late Justice Scalia’s opening salvo in Johnson and recently in Dimaya v. Sessions.
    As Justice Gorsuch so eloquently declared  “Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capa- ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up”
    In my humble opinion Article 134 is one of the most egregious “Pretend Crime” articles perpetually ripe for abuse over the years and used as an end around of the separation of powers.
     
    I believe Article 134 will be retired to the dustbin of history at scotus in the next 2-4 yrs
     

  3. stewie says:

    Yeah, I think if you are waiting for Roberts and the Supremes to somehow get rid of 134 (or 133 which is even broader), you might not want to hold your breath while doing so.

  4. Zachary D Spilman says:

    Gotta disagree with Col Weber’s whopping 639-word (as quoted) definition of the four-word concept, good order and discipline. Much of what he proposes is easily discarded as esoteric idealism (such as, “military service requires a subjugation of self…,” and “good order and discipline requires loyalty to the Constitution and the larger organization above any individual..”). The rest is merely a list of examples.

    Col Weber also seems to overlook the pretty solid definition in Part IV of the Manual for Courts-Martial and the Military Judges’ Benchbook. ¶60.c.(2)(a) of Part IV of the MCM explains:

    To the prejudice of good order and discipline. “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.

    Note 3 to Chapter 3-60-2a of the Benchbook elaborates:

    (With respect to “prejudice to good order and discipline,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as prejudicial in some indirect or remote sense; however, only those acts in which the prejudice is reasonably direct and palpable is punishable under this Article.)

    (With respect to “service discrediting,” the law recognizes that almost any irregular or improper act on the part of a service member could be regarded as service discrediting in some indirect or remote sense; however, only those acts which would have a tendency to bring the service into disrepute or which tend to lower it in public esteem are punishable under this Article.)

    (Not every act of (_________) constitutes an offense under the UCMJ. The government must prove beyond a reasonable doubt, either by direct evidence or by inference, that the accused’s conduct was (prejudicial to good order and discipline in the armed forces) (or) (of a nature to bring discredit upon the armed forces.) In resolving this issue, you should consider all the facts and circumstances (to include (where the conduct occurred) (the nature of the official and personal relationship between the persons who were involved) (who may have known of the conduct) (the effect, if any, upon the accused’s or another’s ability to perform his/her/their duties) (the effect the conduct may have had upon the morale or efficiency of a military unit) (________.))

    These are solidly workable definitions for commanders, military prosecutors, courts-martial, and the average servicemember.

  5. Anonymous says:

    “Solidly workable” – care to give any explanation why? An “irregular act” could literally be anything. Col Weber’s article is welcome, and I appreciate Isaac posting this. 134 has a disgraceful history and deserves this scrutiny. 
     

  6. Zachary D Spilman says:

    Yes, Anonymous, an irregular act could be anything. And the definitions in the MCM and the Benchbook reference “almost any irregular or improper act” as not enough to violate Article 134. Which, you could say, proves that the definitions – while probably not perfect – ar e solidly workable.

  7. Joonka says:

    Zach, at times it seems you and my of your colleagues subscribe to the historical group think rampant among too many practicing in military Jurisprudence
    “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”
     
    You see, there in lies the problem, who and what defines ‘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’ 
     
    oh, and please enlighten us peons on the definition of “direct and palpable prejudice’ specifically where in the UCMJ is this standard defined by congress?
    Zack as an Officer who and when have been trained/instructed on the parameters of what an ‘irregular or improper act’ is?
     
    Perhaps even more egregious, is your ‘Col Weber also seems to overlook the pretty solid definition in Part IV of the Manual for Courts-Martial and the Military Judges’
     
    I thought congress by way of the UCMJ and its numerated articles defined military crimes?  the Manual is not a creature of statue but in fact a product of the administrative state ie the Executive branch.  Yet with dismay I continue to have to listen to seasoned Military justice practitioner mindlessly recite that ‘the manual when read in conjunction with the code creates separate elements and by implication separate crimes which must be proven beyond a reasonable doubt. Since when did congress assented to this foolishness?
     
    Article 134 is and has been used to levy arbitrary power on members of the military by making crimes up as an end around to the numerated articles of the UCMJ and thus, usurping the authority of congress and by implication facilitating barefaced  power grabbing by the executive branch.
    Finally Zach, a cursory reading  below would be instructive on the proper place of the manual and help dispel the myth that has permeated military jurisprudence about  it.
    1 PRECEDENTIAL UNITED STATES COURT OF … – Third Circuit

    www2.ca3.uscourts.gov/opinarch/161663p.pdf
     

     
     
     
     
     

  8. Zachary D Spilman says:

    I’m not sure what you’re trying to say, Joonka, so maybe this misses the mark. But as I read your comment I had two thoughts.

    The first was this:

    The second was this: 

  9. Isaac Kennen says:

    To Zach’s point: I agree, perhaps Col Weber’s definition is a little long. Once the portions amounting to exposition are omitted, Col Weber’s proposal might boil down to something this:

    Good order and discipline is a singular term, but it consists of two interrelated concepts. [. . .] Good order means that the military unit functions in an organized military manner. [. . .] Military discipline is intelligent, willing, and positive obedience to the will of the leader, regardless of personal cost.  [. . .] [G]ood order and discipline requires loyalty to the Constitution and the larger organization above any individual, including the leader, in the rare situations where those interests clearly diverge. [. . .] To be punishable under Article 134 of the Uniform Code of Military Justice, acts must directly prejudice good order and discipline in an articulable[, direct, and palpable] fashion. Acts which remotely or indirectly prejudice good order and discipline may be dealt with through administrative action or other means, but not through punishment under this Code. Factors to consider in whether an act directly prejudices good order and discipline include:
    (1) Did the act raise an appreciable risk of others engaging in similar behavior?
    (2) Did the act negatively impact the unit’s performance to any measurable extent?
    (3) Did the act negatively impact the authority, stature, or respect of unit leadership?
    (4) Did the act occur during the performance of the member’s duty, on a military installation, or in the presence of other members of the unit?
    (5) Was the act known to other members of the unit?
    (6) Did the act occur after counseling or other actions taken regarding the same or similar conduct?
    (7) Were other unit members placed in danger as a result of the act?

    In my mind, when evaluating the sufficiency of such a definition, I am drawn to the question of whether it contains language which would aid members during deliberations if it were used as an instruction. In that light, it is possible that the inclusion of factors members should consider when evaluating the evidence they’ve been presented might be of some use. Whether Col Weber’s factors are the right ones, or the only ones, or articulated most effectively, is a matter, I think, worthy of consideration. 

    Of course, maybe this is all folly. Perhaps the words “good order and discipline” are plain enough that they ought to mean whatever individual jurors understand them to mean. Indeed, the same sort of argument is often made regarding the phrase “reasonable doubt.” Many criminal jurisdictions in this nation discourage judges from trying to articulate what “reasonable doubt” means precisely because that phrase is supposed to mean what jurors understand it to mean.  Maybe, like “reasonable doubt,” “good order and discipline” is supposed to mean exactly what it means to the individual military jurors who are tasked to determine whether it has been breached in the particularized case before them. And, perhaps, if that jury is persuaded to abandon their definition of those simple terms by a judicial instruction, then that instruction has invaded the province of the jury and it is the instruction, not the jury, that is wrong.

    Perhaps words that are understandable to the common juror – like “reasonable” and “doubt” and “good” and “order” and “discipline” – should not be elaborated by a judicial officer at all. Otherwise, our juries (and military members panels) might become mere automatons of judges who are no better fitted than they are to the task. Maybe a commissioned or noncommissioned officer detailed to a court-martial shouldn’t need to have a judge tell them what the words “reasonable” or “discipline” mean.

  10. Alfonso Decimo says:

    On the one hand, I agree the hundreds of words to describe what is already clear from the Benchbook is unnecessary. On the other hand, I was (back in my day) constantly amazed by the disagreement I would encounter when we tried to apply it specifically. To remedy that, I recommend keeping a list of specific situations that the appellate courts found were not PTGOD and compare it to the case at hand. As others have said, people will disagree on words like “reasonable” “direct” and “palpable” but they cannot disagree with “the CCA found this exact same circumstance to be not PTGOD.”

  11. k fischer says:

    Joonka, 
     
    I will try not to bring up any slippery slope hypos, although, this topic has been quite popular on other posts.
     
    I think a great example of a well used charge under Article 134 is jumping from a vessel where some idiot took a bet to jump off an Aircraft carrier.  Search and rescue creates a huge impact to good order and discipline, but yet, are there any other Articles that address this misconduct?
     
    I think Stewie raises a great point with Adultery, although one might ponder the situation where CPT Harlot is married and meets the Russian of his dreams (soon to be nightmare) in Tongduchon.  CPT Harlot’s wife finds about the affair and sends a barrage of e-mails to CPT Harlot’s entire chain of command, files a Congressional, and flies off to South Korea to protest American Officers abandoning their families for Russian hookers.  Is that prejudicial to GOAD?

  12. k fischer says:

    Joonka,

     
    I thought congress by way of the UCMJ and its numerated articles defined military crimes?… Since when did congress assented to this foolishness? Article 134 is and has been used to levy arbitrary power on members of the military by making crimes up as an end around to the numerated articles of the UCMJ and thus, usurping the authority of congress and by implication facilitating barefaced  power grabbing by the executive branch.
     

    That all sounds great until you remember that Congress assented to this foolishness when it passed Article 134, UCMJ.  

  13. stewie says:

    kf, I’m gonna say no. I don’t think an angered spouse who sends a flurry of correspondence should be enough to turn something into PGOD. If that were the case, then PGOD would simply be “whatever annoyingly takes up too much of my time as a CDR.”
     
    Zach, I am fine with the idea that there is a middle ground between what he proposes and the current state of affairs. I’m perplexed by your argument that this is all super clear and only someone who doesn’t understand English doesn’t get it.

  14. Vulture says:

    It would be interesting to see what the court-martial charge was in Blue Sky.  Supposedly the movie was based on a true story and is a 60’s version of the humanistic circumstances Zack describes.  Let’s not take things out of the realm of possibility in a poorly defined set of requirements.

  15. Alfonso Decimo says:

    KF – That’s pretty much the scenario that kept coming up. The regional or base commander would be harangued by the spouse about adultery and somebody would want to call it PTGOD. To me, it’s obviously not, absent better facts.

  16. Joonka says:

    K fisher,
    ‘I think a great example of a well used charge under Article 134 is jumping from a vessel where some idiot took a bet to jump off an Aircraft carrier.  Search and rescue creates a huge impact to good order and discipline, but yet, are there any other Articles that address this misconduct?
     
    I agree that you articulated a great example above of what an 134 spec should describe, but such examples have been the minority over the years. Instead  what we have historically seen is use of words of criminality to create offenses out of thin air.
    For, example:
    Violation Article 134, UCMJ
    Seaman Whitecap on or about may 31sth at Naval Station Norfolk Va, committed an Indecent Assault upon Seaman Driftwood a woman/man not his wife to gratify his sexual desires; to the prejudice of good order and discipline of the United States armed forces.
    Now i understand these can be no longer charged under article 134
     
     
    However please follow my drift, this spec have all the flaws that usually rear its ugly head in article 134 specs; Article 128 preempts article 134 and 128 already addresses ‘Offensive Touching’ which I believe would match most service members understanding of what constitutes an Indecent Assault. Further, my example above doesn’t address the issue of consent which the manual use list as an element for article 134 indecent assault. Although, I believe elements listed in manual are sentence enhancers rather than elements that must be listed to have a properly drawn up article 134 specs. (topic for another day)
     
    Instead what occurs in my example above and in fact occurred often prior to the new article 120 is, TC’s would use words of criminality within a spec to imply lack of consent “committed an Indecent Assault”
     
    Herein lies the end around of article 128,
     
    Article 128 has an element of force as a requirement, article 134 as enumerated in the UCMJ has no element of force. Seaman Driftwood never alleged He/ she was assaulted by force or threatened use of force so this allegation wouldn’t qualify as an assault under article 128. So article 134 is now used to create an Assault spec without having to address consent or the force requirements required by article 128
     
    This why I hope the supremes have a chance to revisit article 134 given their void for vagueness Renaissance lately