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