UCMJ Art. 133

10 U.S.C. § 933 – Art. 133

The exact text of UCMJ Article 133 can be found in 10 U.S.C. § 933 – Art. 133, which states: Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer shall be punished as a court-martial may direct. The code also clarifies the following in regards to Article 133:

• Officers are held to a higher standard of behavior than their subordinates;
• Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer cannot fall without seriously compromising the person’s standing as an officer or the person’s character as a gentleman; 
• This heightened standard for officers commands respect and obedience and preserves their ability to lead and command their subordinates.
• An officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133 UCMJ.

Elements of a UCMJ Article 133 Violation

The elements required to violate this order are listed below.

• That the accused did or omitted to do certain acts; and,
• Under the circumstances, the acts or omitted acts constituted conduct unbecoming an officer and gentleman.

According to the Article, the essence of an Art. 133 violation is that the officer’s conduct “disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission.” Due process for conduct unbecoming of commissioned officers requires fair notice by custom, regulation or other, that the conduct is forbidden and subject to criminal sanction. Violation of this article focuses on the conduct of the service member and how the conduct compromises the ability to command.  As stated by William Winthrop in Military Law and Precedents 711-12 (2d ed. 1920), for the conduct in question to be “unbecoming” it must be conduct that “must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which the officer represents.” 

What is “Conduct Unbecoming”?

The military courts have defined “unbecoming conduct” as that conduct which is “morally unfitting and unworthy, rather than merely inappropriate or unsuitable. It is misbehavior that is more than merely a lack of good taste or propriety. United States v. Rogers, 45 M.J. 244, 255-256 (C.A.A.F. 2000).  More specifically, conduct unbecoming describes a lack of certain moral attributes, including acts demonstrated by:

• Dishonesty
• Unfair dealing
• Indecency
• Indecorum
• Lawlessness
• Injustice
• Cruelty

Furthermore, the courts have said that private conduct in some circumstances may constitute an offense under this article. In addition, it is not “double dipping” to have a situation where an officer can be charged with an underlying offense (e.g., viewing child pornography) and also be charged with an Article 133 violation for the exact same officer misconduct as a lesser included offense. The courts have also made clear the reference of men in the language of the statute applies equally to women or female commissioned officers. Unites States v. Moore, 38 M.J. 490 (C.M.A. 1994); United States v. Norvell, 26 M.J. 477 (C.M.A. 1988).

What are the Penalties for an Article 133 UCMJ Violation?

If you are facing a court martial and potential military punishment due to an Article 133 violation, do not take it lightly. If you receive the maximum punishment, your entire military career is at stake. You’re looking at a year behind bars as well as the risk of losing benefits, status, all pay and allowances, and so much more. Military prosecutors tend to look at these offenses as an easy conviction, so it’s extremely important that you consult with a qualified military defense attorney as soon as possible to ensure your charges are fought aggressively from the very beginning. In order to prove beyond a reasonable doubt that the accused’s conduct was in violation of Article 133 of the UCMJ, the prosecution’s case must provide competent evidence that the servicemember’s actions or omissions constituted conduct unbecoming of a military officer and a gentleman. A conviction also requires fair or proper notice that the conduct is considered unbecoming and is therefore a violation of Article 133.  A good military defense attorney with an extensive set of skills, knowledge, and experience defending service members in these types of cases offers your best chance at fighting the allegations against you and achieving the best possible outcome on your behalf.