This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Javon C. RICHARD, Airman Basic

United States Air Force, Appellant

No. 22-0091

Crim. App. No. 39918

Argued May 10, 2022—Decided September 7, 2022

Military Judge: Christopher M. Schumann

For Appellant: Major Matthew L. Blyth (argued); Major 

Stuart J. Anderson and Mark C. Bruegger, Esq. (on brief).

For Appellee: Major Brittany M. Speirs (argued); Colonel 

Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and 

Mary Ellen Payne, Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in which 

Chief Judge OHLSON, Judge SPARKS, Judge MAGGS, and 

Senior Judge STUCKY joined. Judge MAGGS filed a separate 

concurring opinion, in which Senior Judge STUCKY joined.

_______________

Judge HARDY delivered the opinion of the Court.

The Government charged Appellant with three 

specifications of violating the general article, Article 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 

(2018), for producing, possessing, and distributing child 

pornography. To obtain a conviction for these offenses, the 

Government was required to prove beyond a reasonable doubt 

both that Appellant engaged in the alleged conduct and that 

the general article’s “terminal element” was satisfied, 

meaning that the conduct either: (1) prejudiced good order 

and discipline in the armed forces; (2) was of a nature to bring 

discredit upon the armed forces; or (3) was otherwise a 

noncapital crime or offense. Id. The Government elected to 

charge only the first of these three options and was thus 
United States v. Richard, No. 22-0091/AF

Opinion of the Court

2

required to prove that Appellant’s misconduct was prejudicial 

to good order and discipline.1

Despite this burden, the Government failed to proffer any 

evidence at Appellant’s court-martial that demonstrated how 

Appellant’s behavior prejudiced good order and discipline, 

and instead focused on proving the other element of the 

offense: that Appellant engaged in the alleged misconduct. 

Nevertheless, the panel convicted Appellant of all three 

Article 134 specifications, and the United States Air Force 

Court of Criminal Appeals (AFCCA) affirmed. Because every 

element of a criminal offense—including the terminal 

element of Article 134, UCMJ—must be proven beyond a 

reasonable doubt and cannot be conclusively presumed based 

on the accused’s conduct, we conclude that Appellant’s child

pornography-related convictions under the general article 

were not legally sufficient. The AFCCA is reversed, 

Appellant’s convictions for the child pornography-related 

offenses under Article 134, UCMJ, are set aside, and the case 

is remanded for further proceedings.

I. Background

While stationed at Ramstein Air Base in Germany, 

Appellant initiated a sexual relationship with IB, a sixteenyear-old German citizen. In the course of their relationship, 

Appellant filmed himself and IB having intercourse in his 

barracks dorm room two times—once without IB’s consent 

and once with her consent. After Appellant returned to the 

Unites States, but before IB turned eighteen, Appellant and 

IB continued to engage in sexual acts over live video chats, 

several of which Appellant memorialized by taking 

screenshots without IB’s awareness. Appellant kept those 

photos on his phone along with other sexually explicit images 

IB consensually sent him. 

 

1 To be clear, nothing in this case prevented the Government 

from charging that Appellant’s conduct was service discrediting in 

addition to being prejudicial to good order and discipline. See 

United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010) (noting 

that, in charging violations of Article 134, “the government is 

always free to plead in the alternative”). In the instant case, 

however, the Government chose to limit itself to proving 

Appellant’s conduct prejudiced good order and discipline. 
United States v. Richard, No. 22-0091/AF

Opinion of the Court

3

Appellant and IB’s relationship soured when each became 

upset about the other engaging in relationships with other 

people. Angered by IB’s actions, Appellant sent several 

sexually explicit pictures of IB to her mother. After another 

instance of suspected infidelity, Appellant logged into IB’s 

Snapchat account, posted several nude photos of IB to her 

story (a feature of the app that allows IB’s Snapchat contacts 

to see the images), and changed her password so that she was 

unable to remove the images until Appellant relinquished the 

new password. Although IB was eventually able to remove the 

images, she testified that she received multiple messages 

from people who saw the images on her Snapchat story.

Based on Appellant’s interactions with IB, the 

Government charged Appellant with three specifications of 

violating the general article, Article 134, UCMJ, for 

producing, possessing, and distributing child pornography, 

and one specification of assault under Article 128, UCMJ, 10 

U.S.C. § 928 (2018), for shoving and striking IB.2 With respect 

to the violations of the general article, the Government 

charged Appellant with conduct to the prejudice of good order 

and discipline in the armed forces. Thus, for each of these 

offenses, the Government was required to prove two 

elements: (1) that Appellant knowingly and wrongfully 

produced, possessed, or distributed child pornography; and 

(2) that under the circumstances, the Appellant’s conduct was 

to the prejudice of good order and discipline in the armed 

forces. Article 134, UCMJ; Manual for Courts-Martial, United 

States pt. IV, para. 68b.b. (2016 ed.) (Manual or MCM).

At trial, the Government failed to present any specific 

evidence to support the second element of the Article 134 

charges, and the Government trial counsel neglected to 

include any analysis of the second element during the closing 

 

2 Unrelated to Appellant’s relationship with IB, the 

Government also charged Appellant with one specification of 

destruction of nongovernment property under Article 109, UCMJ, 

10 U.S.C. § 909 (2018), four specifications of using or distributing 

controlled substances under Article 112a, UCMJ, 10 U.S.C. § 912a 

(2018), three specifications of assault under Article 128, UCMJ, 10 

U.S.C. § 928, and two additional violations of the general article 

under Article 134, UCMJ. Those charges are not at issue in this 

appeal.
United States v. Richard, No. 22-0091/AF

Opinion of the Court

4

argument, focusing solely on whether Appellant produced, 

possessed, or distributed child pornography. After the defense 

highlighted this failure in its closing argument, the 

Government tried to salvage the Article 134 charges during 

rebuttal with the following statement:

 And finally, with respect to prejudicial to good 

order and discipline, let me get this right. That it’s 

okay—this is what the defense argument is, it’s okay 

to have child pornography on your phone as a 

military member, just that nobody knows about it, 

so it’s certainly not prejudicial to good order and 

discipline. It is prejudicial to good order and 

discipline to have child pornography on your phone. 

We do not allow our members to commit crimes and 

have criminal possessions on our phone. That’s—the 

argument that for some reason, you know, that is not 

prejudicial to good order and discipline for our 

members to commit crimes as long as it’s quiet and 

in secret, we would all agree that what you do on 

your private time matters. We’re held accountable 

for what we do o our private. And to get up here and 

say, Members, to have child pornography on your 

phone and distribute is not prejudicial to good order 

and discipline (indiscernible) this, was her mama 

the military, no, but the people he was distributing 

these messages—these images to in the military, no. 

How does that look? How does that look? It’s not 

prejudicial to good order and discipline because, I 

don’t know, you know, because he had it but it was 

just on his phone, it doesn’t hurt us, it’s not—it 

doesn’t impact the military, it’s ridiculous. It’s 

ridiculous. Keep that line. Keep that line. Do not get 

smudged.

Transcript of Record at 723–24, United States v. Richard, No. 

22-0091 (C.A.A.F. 2022) (errors in original).

A general court-martial composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of all 

three specifications related to the production, possession, and 

distribution of child pornography in violation of Article 134, 

UCMJ, and one specification of assaulting IB, in violation of 

Article 128, UCMJ.3 The court-martial sentenced Appellant 

 

3 The panel found Appellant not guilty of all the remaining 

charges unrelated to Appellant’s interactions with IB.
United States v. Richard, No. 22-0091/AF

Opinion of the Court

5

to a bad-conduct discharge and confinement for thirty days. 

After the convening authority took no action on the case, the 

AFCCA affirmed the findings and the sentence. United States 

v. Richard, No. ACM 39918, 2021 CCA LEXIS 632, at *2, 2021 

WL 5505091, at *1 (A.F. Ct. Crim. App. Nov. 24, 2021)

(unpublished). We granted review to answer the question:

Whether the evidence of prejudice to good order and 

discipline for the Article 134, UCMJ, offenses was 

legally sufficient.

United States v. Richard, 82 M.J. 235 (C.A.A.F. 2022) (order 

granting review).

II. Discussion

The general article has governed the conduct of American 

servicemembers since the Continental Congress enacted the 

first domestic Articles of War in 1775.4 And the Supreme 

Court has recognized that the military has, by necessity due 

to its unique and critical mission, “developed laws and 

traditions of its own during its long history.” Parker v. Levy, 

417 U.S. 733, 743 (1974). Nevertheless, Article 134, UCMJ, is 

a statutory criminal offense, and as such, this Court has 

recognized that the Constitution demands that the 

Government prove every element of an Article 134 offense—

including the second or “terminal” element—beyond a 

reasonable doubt. United States v. Phillips, 70 M.J. 161, 165 

(C.A.A.F. 2011); United States v. Fosler, 70 M.J. 225, 226 

(C.A.A.F. 2011); United States v. Wilcox, 66 M.J. 442, 448 

(C.A.A.F. 2008) (citing In re Winship, 397 U.S. 358, 364

(1970)). Thus, in this case, for Appellant’s Article 134 

convictions to be legally sufficient, the Government must 

have carried its burden of proving that Appellant’s 

 

4 See Article L of the American Articles of War of 1775, reprinted 

in William Winthrop, Military Law and Precedents 957 (2d ed.,

Government Printing Office 1920) (1895) (“All crimes, not capital, 

and all disorders and neglects, which officers and soldiers may be 

guilty of, to the prejudice of good order and military discipline, 

though not mentioned in the articles of war, are to be taken 

cognizance of by a general or regimental court-martial, according to 

the nature and degree of the offence, and be punished at their 

discretion.”).
United States v. Richard, No. 22-0091/AF

Opinion of the Court

6

misconduct was to the prejudice of good order and discipline 

in the armed forces.

A. Standard of Review

This Court reviews issues of legal sufficiency de novo. 

United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019). In 

determining whether a conviction was legally sufficient, this 

Court asks whether, viewed “in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.”

United States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 

2018) (internal quotation marks omitted) (quoting United 

States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). It is well

established that the terminal element of the general article is 

an “ ‘essential element of the offense.’ ” Phillips, 70 M.J. at 

164 (quoting United States v. Williams, 8 C.M.A. 325, 327, 24 

C.M.R. 135, 137 (1957)). To whatever extent some of this 

Court’s (or its predecessor’s) older cases may have treated the 

terminal element of Article 134, UCMJ, as something less 

than an essential element, those cases have been expressly 

overruled. See, e.g., United States v. Miller, 67 M.J. 385, 389

(C.A.A.F. 2009); United States v. Jones, 68 M.J. 465, 470–71 

(C.A.A.F. 2010); Fosler, 70 M.J. at 232–33.

B. Analysis

To determine whether the Government established that 

Appellant’s misconduct prejudiced good order and discipline 

in the armed forces, we must first decide what that phrase 

means, or at least what it requires in this case. Despite the 

general article’s long history as part of the American military 

justice system—and the even longer history of the British 

antecedents from which the general article was derived5—the 

phrase “to the prejudice of good order and discipline” has 

avoided precise definition, either by Congress, the judiciary, 

or the President. In the absence of any additional 

explanation, many courts and observers have recognized that 

the language in the general article is remarkably vague. As a 

former Chief Judge of our predecessor Court observed before 

 

5 See Parker, 417 U.S. at 745–46 (tracing the history of Article 

134, UCMJ); see also Gilbert G. Ackroyd, The General Articles, 

Articles 133 and 134 of the Uniform Code of Military Justice, 35 St. 

John’s L. Rev. 264, 266–78 (1961) (same).
United States v. Richard, No. 22-0091/AF

Opinion of the Court

7

he joined the bench, the “awesome generality” of the general 

article’s language “would seem in many ways to defy 

explanation, and whose true meaning might baffle the 

examination of the most skilled lawyer.” Robinson O. Everett, 

Article 134, Uniform Code of Military Justice—A Study in 

Vagueness, 37 N.C. L. Rev. 142, 142 (1959).

In the 1970s, this vagueness caused both the. United 

States Court of Appeals for the Third Circuit and the United 

States Court of Appeals for the District of Columbia Circuit 

to strike down the general article as violating the Fifth 

Amendment’s guarantee of due process. Levy v. Parker, 478 

F.2d 772, 796 (3d Cir. 1973), rev’d, 417 U.S. 733 (1974);

Avrech v. Sec’y of Navy, 477 F.2d 1237, 1244 (D.C. Cir. 1973), 

rev’d, 418 U.S. 676 (1974). The Supreme Court reversed those 

decisions, but in doing so, it expressly relied on the fact that 

our predecessor Court had “narrowed the very broad reach of 

the literal language” of Article 134, UCMJ, such that it only 

applies “to conduct that is ‘directly and palpably—as 

distinguished from indirectly and remotely—prejudicial to 

good order and discipline.’ ” Parker, 417 U.S. at 753, 754 

(quoting United States v. Sadinsky, 14 C.M.A. 563, 565, 34 

C.M.R. 343, 345 (1964)). The Supreme Court took further 

comfort from the fact that the President had expressly 

codified that limitation in the Manual, see Parker, 417 U.S. at 

753 & n.22 (citing MCM pt. IV, para. 213c (1969 ed.)), a 

restriction that remains in the Manual to this day, MCM pt. 

IV, para. 91.c. (2019 ed.). 

Yet, despite having exhausted our traditional sources of 

constitutional, statutory, and judicial authority, we are still 

left with the question whether the Government established 

that Appellant’s misconduct was directly and palpably “to the 

prejudice of good order and discipline in the armed forces.” 

Article 134, UCMJ. In Parker, the Supreme Court observed 

“that the longstanding customs and usages of the services 

impart accepted meaning to the seeming imprecise 

standards” of the general article. 417 U.S. at 746–47. But the

procedural history of this case indicates that—at least among 

the various participants in Appellant’s trial and appeal—

there was no “accepted meaning” of what it means for conduct 

to be “to the prejudice of good order and discipline.” Both at 

Appellant’s court-martial and before the AFCCA, the 
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8

Government prevailed on arguments that would seem more 

appropriate for charges brought under clause 2 of the general 

article’s terminal element—that Appellant’s conduct was of a 

nature to bring discredit upon the armed forces. But, as we 

have explained before, the three clauses of the terminal 

element are separate and distinct, and “ ‘disorders and 

neglects to the prejudice of good order and discipline’ is not 

synonymous with ‘conduct of a nature to bring discredit upon 

the armed forces.’ ” Fosler, 70 M.J. at 230.

Beyond noting that the three clauses of the terminal 

element are not interchangeable, Appellant makes no effort 

to define conduct that is prejudicial to good order and 

discipline because he argues that the Government’s failure to 

proffer any evidence in support of the terminal element 

renders his convictions legally insufficient. Appellant 

observes that there is no evidence in the record that anyone 

in the military was aware of his misconduct or that his 

misconduct had any effect on good order and discipline—

regardless of exactly what that phrase means—let alone a 

“direct and palpable” one.

The Government concedes that there is no clear definition 

of “good order and discipline,” and it does not dispute 

Appellant’s description of the record of trial, but it argues that 

it proved the terminal element in this case because the 

evidence established that Appellant “used his military status 

and the resources he received from the military to effectuate 

the commission of his crimes.” Brief for Appellee at 15, United 

States v. Richard, No. 22-0091 (C.A.A.F. Apr. 25, 2022). 

Citing historical cases, the Government argues that crimes 

committed by servicemembers against civilians, that involve 

the use of government-issued equipment, or are committed on 

military installations prejudice good order and discipline even 

when performed in secret. The Government acknowledges 

that this Court has held that no misconduct can be considered 

per se prejudicial to good order and discipline, but the 

Government argues that our predecessor Court’s decision in 

United States v. Davis supports Appellant’s Article 134 

convictions because some misconduct—including Appellant’s 

actions in this case—“by its unlawful nature, tends to 

prejudice good order or to discredit the service.” 26 M.J. 445, 

448 (C.M.A. 1988) (emphasis added).
United States v. Richard, No. 22-0091/AF

Opinion of the Court

9

The Government’s expansive view of the scope of conduct 

that is “to the prejudice of good order and discipline”—

essentially that any misconduct that has a nexus to the 

military qualifies—suggests that it might be necessary for us 

to better define such conduct, something that would be well 

within this Court’s authority to do. See, e.g., Wooden v. United 

States, 142 S. Ct. 1063, 1069 (2022) (defining the term 

“occasions” in 18 U.S.C. § 924(e)(1)); DePierre v. United 

States, 564 U.S. 70, 72 (2011) (defining the term “cocaine 

base” in 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)); United States v. 

Santos, 553 U.S. 507, 509 (2008) (defining the term “proceeds” 

in 18 U.S.C. § 1956(a)(1)); United States v. Granderson, 511 

U.S. 39, 42 (1994) (defining the term “original sentence” in 18 

U.S.C. § 3565(a)). But before taking that step, we find it 

instructive to return to what is, to the best of our knowledge, 

the source of the direct and palpable limitation that our 

predecessor Court adopted and that the President codified in 

the Manual: Colonel William Winthrop’s treatise on 

American military law. See Winthrop, supra, at 723 (noting 

that the general article is “confined to cases in which the 

prejudice is reasonably direct and palpable” rather than cases 

that are “indirectly or remotely” prejudicial); see also United 

States v. Snyder, 1 C.M.A. 423, 425–26, 4 C.M.R. 15, 17–18 

(1952) (citing Winthrop’s treatise to determine whether the 

appellant’s Article 134 convictions were legally sufficient).

In his seminal treatise, Winthrop wrote that “prejudice,” 

as used in the general article, means “detriment, 

depreciation, or an injuriously affecting.” Winthrop, supra, at 

723. He further explained that because the cases 

contemplated by the general article are generally military 

neglects and disorders, “good order” means the “condition of 

tranquility, security and good government” of the military 

service. Id. Even when the general article is applied to civil 

wrongs, Winthrop noted that the accused’s misconduct must 

still “actually prejudic[e] military discipline.” Id. 

Winthrop’s definition of conduct that prejudices good 

order and discipline—which the United States Army Court of 

Military Review adopted more than four decades ago, see

United States v. Evans, 10 M.J. 829, 830 (A.C.M.R. 1981) 

(“The misconduct must be activity against ‘good order’ which 

affects the ‘condition of tranquility, security, and good 
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Opinion of the Court

10

government of the military service.’ ” (quoting Snyder, 1 

C.M.A. at 426, 4 C.M.R. at 15 (quoting Winthrop, supra, at 

723))—comports with our own understanding of clause 1 of 

the terminal element. It is also consistent with the various 

more detailed explanations that the President has provided 

in the Manual to distinguish conduct that does prejudice good 

order and discipline from conduct that does not. See, e.g., 

MCM pt. IV, para. 99.c.(1) (2019 ed.) (explaining when 

extramarital sexual conduct qualifies as an Article 134 

offense under clause 1 of the terminal element); MCM pt. IV, 

para. 101.c.(1) (explaining when contact between officers and 

enlisted servicemembers qualifies as an Article 134 offense 

under clause 1 of the terminal element). In light of this 

existing guidance about what the government must prove to 

establish that conduct prejudiced good order and discipline, 

we see no need to formally define that phrase, but instead 

proceed with those well-known hallmarks of good order and 

discipline in mind. 

Based on the record here, we conclude that Appellant’s 

Article 134 convictions were not legally sufficient. As an 

initial matter, the Government failed to proffer any evidence 

that Appellant’s misconduct had any negative effect—indeed, 

any effect at all—on the good order and discipline of the 

armed forces. No one in the military had any idea that 

Appellant was producing child pornography in his barracks 

dorm room, and there is no evidence that this misconduct 

interfered in any way with any of the traditional hallmarks of 

good order and discipline identified by Winthrop in his 

treatise or the President in the Manual.

The Government’s arguments about Appellant’s military 

status and his misuse of military property cannot cure the 

Government’s failure to proffer evidence of actual harm to 

good order and discipline. Viewed in the best possible light, 

these are purely speculative arguments about how 

Appellant’s misconduct might have prejudiced good order and 

discipline that cannot establish legal sufficiency. See Wilcox, 

66 M.J. at 451 (holding that “tenuous and speculative” 

theories about how the appellant’s conduct prejudiced good 

order and discipline failed to establish the terminal element). 

But viewed less charitably, these arguments—which presume 

prejudice to good order and discipline based on factors such 
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Opinion of the Court

11

as the location of the offense or the military status of the 

accused—urge a return to exactly the kind of per se rules that 

this Court has expressly rejected as constitutionally deficient. 

See Phillips, 70 M.J. at 164–65 (“The use of conclusive 

presumptions to establish the elements of an offense is 

unconstitutional because such presumptions conflict with the 

presumption of innocence and invade the province of the trier 

of fact.”). We decline the Government’s invitation to turn back 

the clock on our treatment of the general article.

To be fair, the Government cites various historical cases 

both from this Court and from our predecessor that would 

seem to support its argument for a more relaxed approach 

toward proving the general article’s terminal element. What 

the Government’s reliance on these older cases neglects, 

however, is the sea change that occurred in this Court’s 

Article 134 jurisprudence between 2008 and 2011. As this 

Court recognized in Fosler, by 2011 “the jurisprudence of the 

Supreme Court and our own Court ha[d] changed.” 70 M.J. at 

232. To whatever extent older cases suggest that prejudice to 

good order and discipline can be assumed or implied based on 

the misconduct of the accused, those cases have been 

overruled.6 “To satisfy the due process requirements of the 

Fifth Amendment, the Government must prove beyond a 

reasonable doubt every element of the charged offense.” 

Wilcox, 66 M.J. at 448 (citing In re Winship, 397 U.S. at 364). 

That constitutional mandate applies just as much to the 

terminal element of Article 134, UCMJ, as it does to every 

other element of a criminal offense. Phillips, 70 M.J. at 165 

(“The terminal element must be proved beyond a reasonable 

doubt like any other element. Whether any given conduct 

violates clause 1 or 2 is a question for the trier of fact to 

determine, based upon all the facts and circumstances; it 

 

6 Appellant argues that for this reason, Davis, 26 M.J. 445, 

should also be overruled “to purge an anomaly in an otherwise 

uniform progression towards requiring proof of the terminal 

element.” Brief for Appellant at 33, United States v. Richard, No. 

22-0091 (C.A.A.F. Mar. 25, 2022). Because the holding in Davis is 

unrelated to the specific sentence cited by the Government (and 

quoted by the AFCCA), we see no reason to overrule Davis. But 

nothing in Davis undermines the fundamental requirement that 

the government must prove all elements—including the terminal 

element of the general article—beyond a reasonable doubt. 
United States v. Richard, No. 22-0091/AF

Opinion of the Court

12

cannot be conclusively presumed from any particular course 

of action.”).

III. Conclusion

Because no evidence established the terminal element of 

the three specifications for violating Article 134, UCMJ, we 

conclude that no reasonable factfinder could have found the 

essential elements of those offenses beyond a reasonable 

doubt. The decision of the United States Air Force Court of 

Criminal Appeals is reversed, and the findings with respect 

to those specifications for production, possession, and 

distribution are set aside and dismissed. The decision is 

affirmed as to the remaining charge. The record of trial is 

returned to the Judge Advocate General of the Air Force for 

remand to the AFCCA to either reassess the sentence based 

on the affirmed findings or order a sentence rehearing.
United States v. Richard, No. 22-0091/AF

Judge MAGGS, with whom Senior Judge STUCKY joins,

concurring.

I concur in the Court’s opinion holding that the evidence 

admitted at trial was legally insufficient to sustain findings

that Appellant is guilty of three specifications alleging that 

he violated Article 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 934 (2018), by producing, possessing, 

and distributing child pornography. The Government introduced evidence that Appellant sponsored a sixteen-year-old 

German girl’s entry onto Ramstein Air Base, took her into his 

dorm room, recorded a video of her engaging in sexually explicit conduct, stored the video and nude photos of her on his 

phone, and then posted nude photos of her on the internet. 

The Government, however, made essentially no effort at trial 

to prove that this conduct was to the prejudice of good order 

and discipline in the armed forces, as the specifications at issue alleged. Because our precedent has established that the 

Government must prove the “good order and discipline” element of Article 134, UCMJ, offenses with evidence, United 

States v. Gaskins, 72 M.J. 225, 233 (C.A.A.F. 2013), the Court 

correctly sets aside the findings of guilt on these specifications. The offenses of which Appellant was charged were not 

“of necessity incapable of proof” but the Government failed in 

this case because it “did not prove them.” Varney v. Ditmars, 

111 N.E. 822, 826 (1916) (Cardozo, J., dissenting).

I write separately to add a few words to what the Court 

says about the pressing question of what constitutes “good order and discipline” within the meaning of Article 134, UCMJ.

Although cases involving this term have arisen since the inception of the United States military, neither Congress, nor 

the President, nor this Court, nor the Supreme Court has supplied a comprehensive definition. The reason is probably that 

no comprehensive definition is possible. Some terms in law 

defy general definition, and are best explained not by describing everything that they include but instead through a process of identifying specific things that they exclude.1 In my 

 

1 Professor Robert Summers influentially identified “good faith” 

as such a term, arguing that “good faith, as used in the case law, is 

best understood as an ‘excluder’—it is a phrase which has no 

general meaning or meanings of its own, but which serves to 

exclude many heterogeneous forms of bad faith.” Robert S. 
United States v. Richard, No. 22-0091/AF

Judge Maggs, concurring

2

view, “good order and discipline” is such a term. Good order 

and discipline in the military must be understood as a state

of affairs in which a variety of heterogeneous conditions are 

not prejudiced.

What are the conditions of good order and discipline in the 

armed forces? No exhaustive list yet exists. The Court observes that Colonel William Winthrop mentioned three in his 

influential treatise, namely, “the condition[s] of tranquility, 

security, and good government of the military service.” William Winthrop, Military Law and Precedents 723 (2d ed., Government Printing Office 1920) (1895).2 But these are not the 

only conditions. As the Court also properly recognizes, the 

President has identified other, more specific, conditions in the 

Manual for Courts-Martial, United States (2019 ed.). For instance, the President has specified that “[e]xtramarital conduct that is directly prejudicial to good order and discipline 

includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or 

respect toward a Servicemember, or both.” Id. pt. IV, para. 

99.c.(1) (emphasis added). Similarly, the President has explained that “contact or association between officers and enlisted persons” may violate Article 134, UCMJ, if “[t]he facts 

and circumstances . . . lead a reasonable person experienced 

in the problems of military leadership to conclude that the 

 

Summers, “Good Faith” in General Contract Law and the Sales 

Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195, 196 

(1968). Professor Summers also noted that Professor H. L. A. Hart 

had identified the term “voluntary” as another such term, asserting 

that “ ‘the word “voluntary” in fact serves to exclude a 

heterogeneous range of cases such as physical compulsion, coercion 

by threats, accidents, mistakes, etc., and not to designate a mental 

element or state.’ ” Id. at 201–02 n.33 (quoting H. L. A. Hart, The 

Ascription of Responsibility and Rights, 49 Proceedings of the 

Aristotelian Soc’y 171, 180 (1949)).

2 In United States v. Karl, 3 C.M.A. 427, 431, 12 C.M.R. 183, 

187 (1953), this Court upheld a finding that the accused had violated Article 134, UCMJ, by selling blank pass forms, concluding 

that the accused’s actions were to the prejudice of each of the three 

conditions of good order and discipline that Winthrop identified in 

his treatise.
United States v. Richard, No. 22-0091/AF

Judge Maggs, concurring

3

good order and discipline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted 

persons for the professionalism, integrity, and obligations of 

an officer.” Id. pt. IV, para. 101.c.(1) (emphasis added).

How are such conditions of good order and discipline identified? The Supreme Court supplied the answer in Parker v. 

Levy, 417 U.S. 733 (1974), a case which upheld a finding that 

an Army officer violated Article 134, UCMJ, by making disloyal statements to enlisted soldiers. Id. at 738, 760–61. In 

rejecting an argument that Article 134, UCMJ, was void for 

vagueness, the Supreme Court reasoned that “longstanding 

customs and usages of the services impart accepted meaning 

to the seemingly imprecise standards of [Article] 134.” Id. at

746–47. The various conditions of good order and discipline

mentioned by Winthrop in his treatise and by the President

in the provisions quoted above all appear to meet Parker’s criterion of being established by longstanding customs and usages. Other conditions may meet this criterion as well.

Commentators have expressed important concerns about 

using the term “good order and discipline” in a criminal statute when the term lacks a specific, authoritative definition. 

See, e.g., Jeremy S. Weber, Whatever Happened to Military 

Good Order and Discipline?, 66 Clev. St. L. Rev. 123, 132, 157 

(2017). But Congress has the responsibility for the wording of

the articles of the UCMJ. This Court cannot revise the clauses 

of Article 134, UCMJ, so that they are more readily defined, 

nor can it adopt definitions of its own choosing that would 

constrain the language of the statute. Instead, the Court is 

limited to a role that the Supreme Court stressed in Parker, 

namely, supplying “specificity by way of examples of the conduct which they cover” as it decides cases under Article 134, 

UCMJ. 417 U.S. at 754.