Update. A commenter has provided the following for consideration.
In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Some years ago, Air Force Colonel Jeremy Weber turned a masters thesis into a law review article about good order and discipline.
Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline. 66 CLEVE. ST. L. REV. 123 (2017).
If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.
His statistical research shows that the term is often stated or used but that it defies definition. He explores the root of the term going back to the Seventeenth and Eighteenth centuries. As one of his purposes for examining the current state of UCMJ art. 134 prosecutions he says that,
This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.
In developing that theme he reviews military and Supreme Court decisions challenging prosecutions under Article 134 and concludes,
However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.
He gets us to one "limitation" in the Manual for Courts-Martial under Article 134(1) that the conduct have a "reasonable and palpable effect" on good order and discipline--a limitation perhaps ignored in trials. He recognizes this still does not define what actions can be prejudicial in many cases rather it's an attempt to give weight to the severity of the conduct. The article is a good read, especially as Judge Maggs has given it a bit of currency--he cites Weber's article in his (and Judge Stucky's) concurring opinion in United States v. Richard, __ M.J. ___, No. 22-0091/AF, 2022 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Is there a volunteer to do a case review for us (anonymous even)? We don't want to write more ourselves because we are in the middle of a brief on this very issue.
Submit a draft to firstname.lastname@example.org.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.