CAAF overrules cases treating prejudice to good order and discipline or service discrediting conduct as implicit in every UCMJ punitive article

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a 'simple disorder,' under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an 'offense necessarily included' under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court's previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

PVT Miller pleaded not guilty to resisting apprehension, but was nevertheless convicted of the offense. ACCA found that the evidence was factually insufficient to support a finding of guilty to resisting apprehension because he was already in custody when he tried to abscond and when he struck a Korean National Police investigator. ACCA instead affirmed a finding of guilty to a simple disorder, concluding that it could "substitute a lesser-included offense for the disapproved" finding "even if the lesser-included offenses was neither considered nor instructed upon at the trial of the case." ACCA also reasoned that PVT Miller was on notice of the LIO of a simple disorder "because every enumerated offense under the UCMJ is per se prejudicial to good order and discipline or service-discrediting." (quoting United States v. Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000)).

Wrong answer, rules CAAF.

CAAF observes that the test for an LIO is whether the offense's elements are a subset of the greater offense's elements. And CAAF observes that Article 134 contains an element not present in Article 95: that the conduct be prejudicial to good order and discipline or service discrediting. CAAF then announced Miller's significant holding: "To the extent [previous decisions] support the proposition that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense, they are overruled." Miller, slip op. at 10.

CAAF then concluded, "Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ. Consequently, the CCA was not authorized to affirm a finding of guilt to a simple disorder under Article 134, UCMJ." Id. (footnote omitted).

Finally, CAAF remands the case to ACCA for reassessment of the sentence.

In a term of narrow opinions, Miller stands out for its importance.