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(1) That the accused did or failed to do certain acts; and

(2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. However, see paragraph 59c (Article 133) for offenses committed by commissioned officers, cadets, and midshipmen.

(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).

(a) To the prejudice of good order and discipline. “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However, see R.C.M. 203 in the Manual Of Courts Martials (linked to a 3.5M PDF) concerning subject-matter jurisdiction.

(b) Breach of custom of the service. A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the various armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See paragraph 16c.

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).

(a) In general. State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under section 13 of title 18 of the United States Code (Federal Assimilative Crimes Act— see subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting (18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.

(c) Crimes and offenses of local application.

(i) In general. A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws).

(ii) Federal Assimilative Crimes Act (18U.S.C. § 13). The Federal Assimilative Crimes Act is an adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction, provided federal criminal law, including the UCMJ, has not defined an applicable offense for the misconduct committed. The Act applies to state laws validly existing at the time of the offense without regard to when these laws were enacted, whether before or after passage of the Act, and whether before or after the acquisition of the land where the offense was committed. For example, if a person committed an act on a military installation in the United States at a certain location over which the United States had either exclusive or concurrent jurisdiction, and it was not an offense specifically defined by federal law (including the UCMJ), that person could be punished for that act by a court-martial if it was a violation of a noncapital offense under the law of the State where the military installation was located. This is possible because the Act adopts the criminal law of the state wherein the military installation is located and applies it as though it were federal law. The text of the Act is as follows: Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

(5) Limitations on Article 134.

(a) Preemption doctrine. The preemption doc-trine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

(b) Capital offense. A capital offense may not be tried under Article 134.

Predefined Offenses. Through executive order (MCM), several offenses have been pre-defined under Article 134, to include elements of proof, and maximum permissible punishments. These offenses are:

--(Abusing public animal)

--(Adultery)

--(Assault--indecent)

--(Assault--with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking)

--(Bigamy)

--(Bribery and graft)

--(Burning with intent to defraud)

--(Check, worthless, making and uttering--by dishonorably failing to maintain funds)

--(Cohabitation, wrongful)

--(Correctional custody--offenses against)

--(Debt, dishonorably failing to pay)

--(Disloyal statements)

--(Disorderly conduct, drunkenness)

--(Drinking liquor with prisoner)

--(Drunk prisoner)

--(Drunkenness--incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug)

--(False or unauthorized pass offenses)

--(False pretenses, obtaining services under)

--(False swearing)

--(Firearm, discharging--through negligence)

--(Firearm, discharging--willfully, under such circumstances as to endanger human life)

--(Fleeing scene of accident)

--(Fraternization)

--(Gambling with subordinate)

--(Homicide, negligent)

--(Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official)

--(Indecent acts or liberties with a child)

--(Indecent exposure)

--(Indecent language)

--(Indecent acts with another)

-- (intent to commit murder, manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking)

--(Jumping from vessel into the water)

--(Kidnapping)

--(Mail: taking, opening, secreting, destroying, or stealing)

--(Mails: depositing or causing to be deposited obscene matters in)

--(Misprision of serious offense)

--(Obstructing justice)

--(Wrongful interference with an adverse administrative proceeding)

--(Pandering and prostitution)

--(Parole, Violation of)

--(Perjury: subornation of)

--(Public record: altering, concealing, removing, mutilating, obliterating, or destroying)

--(Quarantine: medical, breaking)

--(Reckless Endangerment)

--(Requesting commission of an offense)  -- is deleted pursuant to Executive Order 12708.

--(Restriction, breaking)

--(Seizure: destruction, removal, or disposal of property to prevent)

--(Self-injury without intent to avoid service)

--(Sentinel or lookout: offenses against or by)

--(Soliciting another to commit an offense)

--(Stolen property: knowingly receiving, buying, concealing)

--(Straggling)

--(Testify: wrongful refusal)

--(Threat or hoax: bomb)

--(Threat, communicating)

--(Unlawful entry)

--(Weapon: concealed, carrying)

--(Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button)