Article 134

[DimndDave14]

Can someone be charged with Article 134 if they drink and drive? But they do not get a DUI, nor does it affect them performing their duty and are of the drinking age.

Just curious of how much range this article has.

 

[The Chief]

Certainly, should 111 nor 112 be more appropriate in the charge.

Range? Great range, that is, anything not covered elsewhere. Having said that, there is a wealth of case law out there covering 134.

One example that I can think of: Supposed Airman is charged and convicted by civilian authorities for driving while drunk. Once we get him back, charging him under Art 111 might be considered double jeopardy, so we, while the same act or offense, could charge him under Art 134. Not saying we will, but we could do that.

Not an attorney at law, nor is this legal advice, just one view.

 

[esday1]

I haven't been to Naval Justice School yet so I'm taking a somewhat educated guess here, but I would say that someone probably could get charged with Article 134 for drinking and driving. Here's the text of art. 134:

Though not specifically mentioned in this chapter [10 USCS §§ 801 et seq.], 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 [10 USCS §§ 801 et seq.] 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.

That breaks down into three separate ways something can violate art. 134:
1. all disorders and neglects to the prejudice of good order and discipline in the armed forces
2. all conduct of a nature to bring discredit upon the armed forces
3. crimes and offenses not capital, of which persons subject to this chapter may be guilty

Note that whether the conduct affects the performance of your duty only affects the first one of those. Drunk driving could fall under either of the second two clauses, either because if you did get caught it would bring discredit to the armed forces, and because drunk driving is a crime in the civilian justice system.

Does anyone have any more specific experiences with this?

 

[TXHusker05]

From what I understand about Article 134, it is the enlisted version of Article 133 (Conduct Unbecoming an officer and a gentleman). There are no specific crimes but the UCMJ calls it "All disorders and neglects to the prejudice of good order and discipline in the Armed Forces." Including charges that might bring discredit to the Armed Forces.

Dim, in the situation you give, that person would not be subject to that Article because no charges would be brought up for DUI. Now if the sailor is drunk while on duty, Articles 111 and 112 apply.

Example:

"Enlisted sailor does an interview with a newspaper and speaks out against the President... the newspaper publishes the article with the sailors name."

Article 88 does not apply to enlisted sailors and Article 89 does not apply because the President is not a commissioned officer. The convening authority would most likely charge Article 134 and the court would most likely punish the accused using the minimum penalties for Article 88.

Obstruction of Justice, perjury, refusing to testify and breaking parole are all included in Article 134. Wearing unauthorized ribbons/medals/rank/insignia is covered in Art. 134. Even straggling during a PT run can be considered under Article 134.

If you go to page 97 and 98 of the UCMJ where it lists the maximum penalties for each Article, at Article 134, it lists a number of offenses that can be considered under Article 134.

Now I am not a JAG or lawyer so this isn't official legal advice, but that is the way the UCMJ explains it best.

 

[DimndDave14]

So from what I gather if a military person goes to a bar and has say 4 drinks over a seven hour period (i.e.not all at one time). Then proceeds to drive home with no legal complications or complications perfoming his or her duties. And is only questioned when a person who has the power to charge someone with Article 134 asks "Didn't I see at the bar last night."
Reply- "Yes, I was there".
Then asks- "So how much did you drink before you left?"
Reply- "Well over the 7 hours I was there, I had 4 beers."
Then asks - "So then you drove home?"
Reply - "yes"
So just with that someone can be charged with 134.

 

[esday1]

Look at the definition of intoxication in art. 111:
http://usmilitary.about.com/od/punitivearticles/a/mcm111.htm
If you didn't have enough alcohol that your blood-alcohol content would be over the legal, then it's probably not illegal. Again, this is just my opinion, but the fact that you had some alcohol and then drove probably by itself doesn't automatically amount to a violation unless you were actually drunk or you were over the legal limit.
This might be helpful as well:
http://www.nhtsa.dot.gov/people/injury/alcohol/bacreport.html

 

[HooverPilot]

New message came out last week or so directing CO's to begin the NJP process for people charged with DUI/drugs out in town. No more waiting for a conviction. I can't find a copy of the message right now, but I know it's on the boards at work. I'll post a link when I can.

 

[pennst8]

(Warning - I am a Midsh!thead... not a lawyer.)



Hypothetically speaking if the person asking was a Mighty Fine American, and they really wanted to pursue it, shouldn't they take the driver to captain's mast? At least then it wouldn't have to be beyond a reasonable doubt, the burden of proof is significantly lower.

Also I think The Chief is right, Art 111 would be far more applicable.

At the same time... 4 drinks is not going to put you over .08 over the course of seven hours. I would find it hard to believe that a conviction would be handed down without a BAC reading.

http://www.ou.edu/oupd/bac.htm <-- quick BAC calculator... it doesn't go up to seven hours but in five hours a 180lb guy would only have a point oh two.

 

[Brett327]

No, no, and no. There is so much BS and misuse of statute going around on this issue, that I'm surprised this hasn't become a major issue in the military justice system. There are several issues to this thread thus far which I will attempt to deal with independently.

1. To the original poster: I'm assuming your case (or hypothetical) is aimed at a perp who is observed drinking or being drunk, then subsequently driving, but not stopped by competent legal authority. Now, such a person could be brought before his CO for NJP, as normal rules of evidence do not apply, but a wise perp would push for a court martial because there was (I'm assuming here) no evidence of actual impairment. I'm also assuming that there were no witnesses that could assert beyond reasonable doubt that they, as laypersons could have assessed the perp to be under the influence to the extent that said perp was unquestionably impaired. I know we're not operating on all the details or facts here, but bottom line vanilla version is that having a bystander witness someone drink, then drive should not be enough to convict then in a court martial for 112, or 134.

2. Double Jeopardy: A perp can not be held liable for the same charge in multiple jurisdictions, nor can you attempt to fling a tangential charge like 134 at him to cover an offense which has been disposed of by military or civil authorities. This has historically been one of the most abused areas of the UCMJ, where a perp will get charged with DUI by local/state jurisdiction, then charged again under the UCMJ through 112 or 134. To do so is double jeopardy, and there is ample case law to support a defendant if they push for a court martial.

3. 134 vs. other articles: You can not charge a perp under multiple articles for a single offense, or even use 134 as a catch-all if the others don't happen to stick. Again, most of the abuse in the system comes from NJP proceedings where an ignorant/overzealous CO presses for what amounts to double jeopardy, or where the evidence would never meet the burden of proof in a court martial.

Bottom line: Any serious offense (including DUI) requires retention of counsel to determine whether the facts warrant disposition at NJP or court martial, as the potential for abuse or ignorance at NJP by the COC is especially strong.

Brett

 

[Bevo16]

2. Double Jeopardy: A perp can not be held liable for the same charge in multiple jurisdictions, nor can you attempt to fling a tangential charge like 134 at him to cover an offense which has been disposed of by military or civil authorities. This has historically been one of the most abused areas of the UCMJ, where a perp will get charged with DUI by local/state jurisdiction, then charged again under the UCMJ through 112 or 134. To do so is double jeopardy, and there is ample case law to support a defendant if they push for a court martial.

Brett

Double Jeopardy does not apply to NJP.

3. 134 vs. other articles: You can not charge a perp under multiple articles for a single offense, or even use 134 as a catch-all if the others don't happen to stick. Again, most of the abuse in the system comes from NJP proceedings where an ignorant/overzealous CO presses for what amounts to double jeopardy, or where the evidence would never meet the burden of proof in a court martial.

Brett

I am no leagal officer, but I have observed plenty of NJP in my time. Every CO that I have ever worked for would charge guys with different articles for the same offense. Either you are wrong, or every legal officer and commanding officer in the Navy is AFU.

 

[Brett327]

Double Jeopardy does not apply to NJP.





I am no leagal officer, but I have observed plenty of NJP in my time. Every CO that I have ever worked for would charge guys with different articles for the same offense. Either you are wrong, or every legal officer and commanding officer in the Navy is AFU.

Well, I have been a Legal O and it is wrong - that's exactly what I was talking about in my original post and it's covered extensively in LO school. That being said, don't confuse being charged with multiple articles for multiple offenses with multiple articles for a single offense. Esoteric difference, but important legally. I suspect that that is what you've seen in your command(s). Case in point, Seaman Jones has a few too many and commits drunk & disorderly, then subsequently misses morning muster - two different offenses. On the other hand, Seaman Jones has a few too many and commits D & D. He can not be charged with D & D in addition to Art. 134, or Art. 92 - Failure to obey lawful order. As for double jeopardy, as I indicated, that is why is it incumbent on the perp to take things to a court martial if the fact pattern warrants - reason alone to retain counsel. In the case of DUI, no sense getting slammed twice for the same offense.

Brett

 

[Bevo16]

. As for double jeopardy, as I indicated, that is why is it incumbent on the perp to take things to a court martial if the fact pattern warrants - reason alone to retain counsel. In the case of DUI, no sense getting slammed twice for the same offense.

Brett

So, if a sailor gets a DUI, and gets punished for it in the civilian courts, there is nothing that a command can do?

Brett, if you are ever looking for a new title, "Sea Lawyer Extraordinaire" would be a nice one.

 

[Brett327]

So, if a sailor gets a DUI, and gets punished for it in the civilian courts, there is nothing that a command can do?

Brett, if you are ever looking for a new title, "Sea Lawyer Extraordinaire" would be a nice one.

Not Sea Lawyer - Legal Officer. Legally, the command can take every non-punitive measure at its disposal, including treatment for alcoholism and ADSEP, but it can not charge someone with a crime that has already been disposed of, or pending disposal in another jurisdiction. That's the law, 5th amendment to the US constitution to be exact. You wouldn't think it right if you got a speeding ticket in your city, then were subsequently charged the fine in the local, state, and federal jurisdictions. Why would it be any different for Seaman Jones' DUI charge? It's not that hard to understand.

Brett

 

[TXHusker05]

Brett, to go further with Bevo's question...

If Seaman Jones gets stopped by the local PD, off duty, just outside of base (on the way in) for lets say disturbing the peace or public intoxication (D&D) and is issued a citation... then Seaman Jones enters the base and is subsequently stopped by a military policeman and charged with D&D, does the 2nd D&D fall under double jeopardy? It was the same crime, charged in separate places with separate jurisdictions and a separate time.

It seems like in that situation both charges and punishment from both jurisdictions apply because they are separate occurances.

From what I understand that you are saying, if Seaman Jones gets arrested for public intoxication in a bar off base (especially in Texas now, watch out) and his Commanding Officer happened to be at the bar and witnessed it... the CO can not charge him with a crime, the most the CO can do is recommend counseling for alcohol.

How did you become a Legal Officer Brett, that sounds like it could be an interesting job. Was that your side job in your squadron?

 

[Schnugg]

How did you become a Legal Officer Brett, that sounds like it could be an interesting job.

I would highly recommend you volunteer for this and make it known when you are in the FRS that you want to be the legal officer. Squadrons (and associated JOs) will be clamoring all over to get you in their squadron.

Guess why?

Hello...McFly??? Is this thing on???

Legal O is one of the jobs you can do absolutely perfectly, 100% by the book and no one notices...after all it's your job. But make one mistake which results in a criminal walking or a lost conviction and you're toast.

r/
G