Officer Misconduct

Military officers, cadets, and midshipmen are held to the highest personal and professional standards. When those standards are not met, officers may be administratively punished or even criminally prosecuted for violating Article 133, UCMJ, conduct unbecoming an officer and a gentleman.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA are all military officers who served on active duty and have defended against some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Definition and Elements

Conduct unbecoming an officer and a gentleman is defined as any “action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer.”  The term “gentleman” includes both male and female commissioned officers, cadets, and midshipmen.

To be guilty of violating Article 133, the Government must prove two elements:

      (1) That the officer, cadet or midshipman did or omitted to do a certain act; and

      (2) That, under the circumstances, the act or omission constitutes conduct unbecoming an officer and gentleman.

Because of how vague the elements and definition are, conduct unbecoming an officer and a gentleman is one of the most nebulous and abused charges under the UCMJ.

Conduct Unbecoming Explained

Generally speaking, Article 133 prohibits conduct by a commissioned officer, cadet, or midshipman which compromises their standing as an officer and as a gentleman. Contrary to popular belief and depictions in movies, enlisted service members cannot be charged with “conduct unbecoming” in violation of Article 133. This charge is reserved solely for officers, cadets, and midshipmen.

The offense of “conduct unbecoming an officer and a gentleman” is based on the idea that officers are expected to possess certain moral attributes that make them fit to lead. For example, an officer who is dishonest, unfair in his treatment of others, indecent, indecorous, lawless, unjust, or cruel should not be leading our nation’s sons and daughters.

Article 133 explains that while officers should not be held to unrealistically high moral standards, the “customs of the service and military necessity” do require a basic minimum which all officers must meet without seriously compromising their standing or character as a leader.

Importantly, Article 133 includes acts that are also punishable under other UCMJ articles, provided that the misconduct also amounts to conduct unbecoming an officer and a gentleman. For example, a commissioned officer who steals property may be charged with violating both conduct unbecoming (Article 133) and larceny (Article 121).

Examples of Conduct Unbecoming

The Manual for Courts-Martial provides a number of examples of conduct which could be considered unbecoming an officer and a gentleman. These include:

• knowingly making a false official statement;
• dishonorable failure to pay a debt; cheating on an exam;
• opening and reading a letter of another without authority;
• using insulting or defamatory language to another officer in that officer’s presence or about that officer to other military persons;
• being drunk and disorderly in a public place;
• public association with known prostitutes;
• committing or attempting to commit a crime involving moral turpitude;
• and failing without good cause to support the officer’s family.

But these are only examples. Officers under investigation for almost any type of misconduct (including non-criminal offenses) are often hit with “conduct unbecoming” allegations as a type of catch-all charge. 

Military courts have previously found that it was NOT conduct unbecoming a senior officer to merely loan money to a subordinate or for an officer to visit a legal brothel with enlisted members where the officer did not seek or engage in sex. These cases are exceptions, however, and should not be used as a guide for acceptable conduct.

Defenses

Any defense for conduct unbecoming an officer is highly fact specific. In some cases there may be no direct or circumstantial evidence to corroborate the allegation, or it may be that the complaining witness has a motive to make a false allegation, all of which are relevant to defending against the charge.

Additionally, commands often try to punish officers for conduct that is merely inappropriate or unsuitable. That is not the legal standard. Rather than simply lacking good taste, “unbecoming conduct” means conduct that is “morally unfitting and unworthy.”  A skillful attorney can identify deficiencies in the Government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for conduct unbecoming an officer is dismissal (the officer equivalent of a dishonorable discharge), forfeiture of all pay and allowances, and confinement for a period not to exceed that authorized for the most analogous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year.

Protect Your Freedom and Military Career

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  

Call us today at (843) 773-5501 for a free consultation.

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When an officer is recommended for involuntary separation based on performance, misconduct, or mental or physical ability, the matter is evaluated by an administrative separation board, also known as a “Board of Inquiry”, “Show Cause Board”, “Elimination Board” or “Board of Officers”. A separation board affords the officer the opportunity to fight for retention in the military.

MJA has successfully defended servicemembers from every branch of the military facing administrative separation. If you have been notified of involuntary administrative separation and want to fight for your career, contact us today for your free consultation.

AUTHORITY

Each branch has its own regulations governing officer separations. The most common regulations for active duty officers include:

• Air Force– AFI 36-3207 (Separating Commissioned Officers)
• Army– AR 600-8-24 (Officer Transfer and Discharges)
• Coast Guard– COMDTINST M1000.4 (Military Separations)
• Navy and Marine Corps– SECNAVINST 1920.6D (Administrative Separation of Officers)

These regulations typically require that an officer facing administrative separation be advised of:

• The specification allegations on which the proposed action is based;
• The specific provisions authorizing separation;
• Whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the military;
• The least favorable characterization of service he/she could receive; and
• The type of discharge and character of service recommended by the initiating commander and that intermediate commanders may recommend a less favorable type of discharge and characterization of service than that recommended by the initiating commander.

The separation authority is not bound by the recommendations of the initiating or intermediate commanders. The separation authority may generally not, however, issue a type of discharge or characterization of service less favorable than that recommended by the separation board.

ELIGIBILITY

Officers facing involuntary administrative separation are only entitled to a board hearing when they have more than 6 years of “active commissioned service” or face the possibility of receiving an Other than Honorable (OTH) characterization of service.

Officers with less than 6 years of active commissioned service are considered “probationary officers” do not rate a board hearing. As such, these officers can be separated via “notification procedures” with an Honorable or General (Under Honorable Conditions) discharge.

The requirement of 6 years of “active commissioned service” is particularly critical for officers who were prior enlisted. The officer’s prior enlisted service does not count toward their active commissioned service time.

OFFICER’S RIGHTS

Officers facing involuntary administrative separation are entitled to numerous rights, including the right to:

• Consult with military or civilian counsel;
• Obtain copies of documents that will be sent to the separation authority supporting the proposed separation;
• Have a hearing before an administrative separation board (nonprobationary officers only)
• Present written statements instead of board proceedings;
• Request appointment of a military counsel for representation;
• Retain civilian counsel at no expense to the Government; and to
• Waive the above rights in writing. This includes the right to submit a conditional waiver of the right to have a case heard before an administrative separation board.

A conditional waiver may be submitted when an officer wants to waive his/her right to a hearing before an administrative separation board contingent upon receiving a favorable characterization of service.

For example, an officer who is facing a potential discharge under other than honorable (OTH) conditions could elect to waive his/her separation board contingent upon receiving an honorable discharge. The separation authority may approve or disapprove a conditional waiver.

Officers may also be given the opportunity to voluntary resign or retire, depending on the specifics of their case.

SEPARATION BOARD HEARING PROCEDURES

Separation boards are comprised of at least three members who are typically in the grade of O-5 or above. These members must be unbiased and senior in grade to the officer facing separation.

Officers having the following rights at a hearing, which may be exercised by them or their attorney:

• To appear in person, with or without counsel;
• To submit any written evidence to the board for consideration;
• To request the attendance of witnesses;
• To question any witness who appears before the board;
• The challenge any voting member of the board for cause; and
• To present argument before the board closes the case for deliberation on findings and recommendations.

Officers are not required to testify at the board hearing and may choose to remain silent, given a sworn statement subject to cross examination, or give an unsworn statement.

BOARD FINDINGS AND RECOMMENDATIONS 

After hearing all the evidence, the board will determine whether each allegation in the notice of separation is supported by a preponderance of the evidence. If the basis is satisfied, the board must then determine whether the officer should be separated or retained in the military. If separated, the board must determine the appropriate characterization of service.

Characterization of service will be based upon the quality of an officer’s service, including the reason for separation.

• An Honorable discharge is appropriate when the servicemember generally has met the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
• A General (under honorable conditions) discharge is appropriate when a servicemember’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
• An Other-than-Honorable (OTH) discharge may be issued for when a servicemember’s conduct constitutes a “significant departure” from the conduct expected from a military member.

If a board recommends separation, it may also recommend that the separation be suspended. A recommendation for suspended separation is not binding on the separation authority.

SEPARATION AUTHORITY ACTION

After the board is complete, the case goes to the separation authority for review and action. The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.

The separation authority’s action will depend on the board’s findings and recommendations. For example, when a board recommends separation for misconduct, the separation authority may direct separation of the servicemember or disapprove the recommendation.

While a separation authority can disapprove a recommendation for separation and direct retention a servicemember, separation authorities are not permitted to direct discharge if a board recommends retention. Neither can a separation authority issue a discharge characterization of less favorable character than that recommended by the board.

APPEALING AN UNJUST SEPARATION

Officers who believe they were improperly discharged from the military or received an unjust characterization may file an appeal to the appropriate Board for Correction of Military Records or Discharge Review Board. These boards have the authority to correct errors or injustices relating to a discharge or to upgrade a characterization of service, among other powers.

CONTACT MJA TODAY

MJA has successfully helped officers fight unjust separation actions. If you have been notified of administrative separation and want to fight for your career, contact us today for your free consultation.

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Related Posts:

• Administrative Separations Part I: Fighting Notification Procedures
• Administrative Separations Part II: Fighting a Separation Board

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