Amicus Curiae Brief — Parker v. Levy
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October Term, 1973
No. 72-1713
SECRETARY OF THE NAVY,
Appellant,
v.
MARK AVRECH,
Appellee.
ON APPEAL FROM THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 73-206
< JACOB J. PARKER, et al.,
Appellants,
v.
HOWARD B. LEVY,
Appellee.
ON APPEAL FROM THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
RNID yon OU LYE ER
BRIEF AMICUS CURIAE ON BEHALF OF THE
ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK
BAS ¥
THOMAS M. COMERFORD MARVIN M. KARPATKIN
1301 Avenue of the Americas 1345 Avenue of the Americas
New York, N. Y. 10019 New York, N. Y. 10019
Davip L. Fox LEONARD P. NOVELLO
280 Park Avenue 1 Chase Manhattan Plaza
New York, N. Y. 10017 * New York, N. Y. 10005
Attorneys for the Association
of the Bar of the City of New York
42 West 44th Street
New York, New York 10036
TABLE OF CONTENTS
PAGE
Interest of the Amicus Curiae .................. 2
Statutes Involved ............. 0.0... ccc eee eeee 3
Questions Presented .............0...000.00000e 4
Statement of the Cases ...................00000. 4
Summary of Argument ...............00ce0eeee 4
i Argument:
| Point I:
| Article 134 is unconstitutional on its face ..... 6
| A. Article 134 is unconstitutionally vague .... 7
| 1. Article 134 does not give fair warning
: of what conduct is proscribed ......... 9
2. Article 134 fails to provide explicit en-
forcement standards ................ 18
B. Article 134 is unconstitutionally overbroad 23
C. No countervailing military necessity ...... 24
D. The effect of unconstitutionality ......... 25
| Point II:
| Article 133 is unconstitutional on its face .... 27
; Conclusion ............ 0c cece cece e cece ueees 33
TABLE OF AUTHORITIES
Cases
Burns v. Wilson, 346 U.S. 187 (1953) ........... 17
Broadrick v. Oklahoma, 418 U.S. 601 (1973) ...... 8
Brown v. Board of Education, 349 U.S. 294 (1954) 16
ewe, ADEE 0 DR ee BIT RE ET ae EM Se ee
a
ii
PAGE
Carter v. McClaughry, 183 U.S. 365 (1902) ...... 17
Cline v. Frink Dairy Co., 274 U.S. 445 (1927) .... 7
Coates v. City of Cincinnati, 402 U.S. 611 (1971)
7, 9, 22, 28, 24, 32
Connally v. General Construction Co., 269 U.S. 385
CREE, ng be 9355 5 TRs pose eon et eenseies nee. 7, 8,18
Corporation of Haverford College v. Reeher, 329 F.
Supp. 1196 (E.D. Pa. 1971) ...............4.. 7
Dombrowski v. Pfister, 380 U.S. 479 (1965) ...... 17, 24
) Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) ... 15, ©
16,17
“| Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .... 20-21,
, 31
; Gooding Vv. Wilson, 405 U.S. 518 (1972) ........ 7, 22,
| 24, 25, 31, 32
) Grayned v. City of Rockford, 408 U.S. 104 (1972) 7,8,
19, 21, 23, 31
Johnson Vv. Zerbst, 304 U.S. 458 (1938) ......... 17
Kauffman v. Secretary of the Air Force, 415 F.2d
ORL CEC. CAE, TURES eikric cee civic des cevssis / 1
Lanzetta v. New Jersey, 306 U.S. 451 (1938) .... 7,9,
22, 23, 28, 31
Levy v. Parker, 396 U.S. 1204 (1969) ........ .. 15, 26
Ez parte Milligan, 71 U.S. (4 Wall.) 2 (1866) .... 17
NAACP v. Button, 371 U.S. 415 (1963) .......... 25
O’Callahan v. Parker, 395 U.S. 258 (1969) ...... 26
Papachristou v. City of Jacksonville, 405 U.S. 156
CAD TRD 5455044505 5 608 48s Ed eee oes 7, 8, 16, 22, 31
Reid v. Covert, 354 U.S. 1 (1957)
Roe v. Wade, 410 U.S. 113 (1973)
POP CB ore “
OEE PRO Ws hy Portia % :
COURS PUR ATI ge series caren rer
CO ee
PAGE
Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) 16
Union Bridge Company v. United States, 204 U.S.
364 (1905)... 2. eee. 10
United States v. Adams, 21 C.M.R. 34 (AFBR
BONGP 5 8564 kee 0000 e06s ane ooecavéxoiae tn 14
United States v. Alexander, 3 U.S.C.M.A. 346, 12
C.M.R. 102 (1953) ......................... 13
United States v. Annal, 13 U.S.C.M.A. 427, 32
C.M.R. 427 (1963) ......................... 13
United States v. Berry, 6 U.S.C.M.A. 638, 20 C.M.R.
GOW TEIOG). vkk cin ccvnccencvedvessccescesce 13
United States v. Butler, 11 C.M.R. 445 (ABR 1953) 14
United States v. Cardiff, 344 U.S. 174 (1952) . 7,22
United States v. Caune, 22 U.S.C.M.A. 200, 46
C.M.R. 200 (1973) ......................... 19
United States Civil Service Commission v. National
Association of Letter Caspiers, 413 U.S. 458
(1973) 2... ll... 8, 11, 12, 30
United States v. Cohen Grocery Co., 255 U.S. 81
8 a ee 7
United States v. Cole, 30 C.M.R. 755 (USCG Action
of General Counsel as Supervisory Authority
ROME) Sha secs seen tees vaeewedcedeceeiceus. 14
United States v. Community TV Inc., 327 F.2d 797
(10th Cir. 1964) .......................... 7
United States v. Cowan, 12 C.M.R. 375 (ABR 1953) 14
United States v. Cramer, 8 USCA. 221, 24
C.M.R. 31 (1957) .....0000.............2... 13
United States v. Daniels, 19 USC. M.A. 529, 42
C.M.R. 131 (1970) ......................... 24
United States v. Davis, 27 C.M.R. 908 (CGBR
Pl ae er as ee OTe
CO ee Oe rempary:
Juli da ites
Pe ae ee ees
iv
PAGE
United States v. Day, 11 U.S.C.M.A. 549, 29 C.M.R.
BOG CIODO) oS oss ke cew eens tan wo ewecsuesess 19
United States v. Downard, 6 U.S.C.M.A. 538, 20
C.M.R. 254 (1956) 2.0... ccc ccc eee ees 20
United States v. Eaton, 144 U.S. 677 (1892) ...... 10
United States v. Fisher, 6 C.M.R. 195 (ABR 1952) . 10
United States v. Floyd, 18 C.M.R. 362 (ABR 1954),
pet. denied, 6 U.S.C.M.A. 817, 19 C.M.R. 413
COOGRY nv ey oe ac a eee anes seeeeeas eneeseys 18, 14
United States v. Francis, 12 C.M.R. 695 (AFBR
1958), pet. denied, 3 U.S.C.M.A. 837, 13 C.M.R.
TAR TUDRE) noe oh beens xe teaeiwesss 20
United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R.
BT CIDOR) no ancd ener c hive cucecnse es stones 8, 15
United States v. Freeman, 15 C.M.R. 6389 (AFBR
1954), pet. denied, 4 U.S.C.M.A. 734, 16 C.M.R.
292 (1954) ;
United States v. George, 228 U.S. 14 (1913) ...... 10
United States v. Goldie, 1 C.M.R. 495 (NBR 1951) 14
United States v. Gray, 20 U.S.C.M.A. 68, 42 C.M.R.
S| ee errr nee cre 24
United States v. Grimaud, 220°U.S. 506 (1911).... WW Pp
United States v. Habbard, 12 C.M.R. 492 (AFBR
OGRE oie we eck cha CER h EG SSE eS EN bee ewnes 20
United States v. Harbin, 20 C.M.R. 925 (AFBR
BORG) nn cis eawn sun av aes Ouse 4 eo eke e ensures 14
United States v. Herndon, 15 U.S.C.M.A. 510, 36
C.M.LR. 8 (1965) 2... ccc ccc ccc cscs cc ecces 13
United States v. Holt, 7 U.S.C.M.A. 617, 23 C.M.R.
81 (1957) oo cc cee ee eee 10, 13
United States v. Howe, 17 U.S.C.M.A. 165, 37
CMR. 420 (1967) on ccc eccescetccscussecss 8, 24, 32
United States v. Hunt, 18 C.M.R. 498 (ABR 1954) 13
as
United States v. Jackson, 8 C.M.R. 215 (ABR 1952),
pet. denied, 2 U.S.C.M.A. 677, 8 C.M.R. 198
CSOO) soc hese ce ce ewan Gee eevcdessevanss 14
United States v. Johnson, 5 C.M.R. 268 (ABR 1952) 20
United States v Lee, 4 C.M.R. 185 (ABR 1952), pet.
PAGE
denied, 1 U.S.C.M.A. 712, 4 C.M.R. 178 (1952) .. 14
United States v. LeFort, 15 C.M.R. 596 (CGBR
BOORE 686 eee ch Ee 48a sk ee bees 4s wen es 20
United States y. Livingston, 8 C.M.R. 206 (ABR
1952), pet. denied, 1 U.S.C.M.A. 676, 8 C.M.R. 178
6): ) 14
United States v. Mallory, 17 C.M.R. 409 (ABR 1954) 14
United States v. Manos, 8 U.S.C.M.A. 734, 25
C.M.R. 288 (1958) 2... cece cee eae 19-20
United States v. Martinson, 21 U.S.C.M.A. 109, 44
C.M.R. 1638 (1971) 00... ccc cee eens 13
United States v. Maze, 42 C.M.R. 876 (ACMR
(1970), rev’d on other grounds, 20 U.S.C.M.A. 29,
44 C.M.R. 29 (1971) 22... ce cee ee eee 13
United States v. McCormick, 12 U.S.C.M.A. 26, 30
C.M.R. 26 (1960) 2... 0... ccc ccc cece ee 11, 22
United States v. Menta, 39 C.M.R. 956 (AFBR
1968) ccc cece cece e ene eeeeenes 20
United States v. Neill, 4 C.M.R. 221 (ABR 1952),
pet. denied, 2 U.S.C.M.A. 665, 5 C.M.R. 130
SAMURY 5.55665 4454 545ws ue ewe 4b kes 444s ness 14
United States v. Norris, 2 U.S.C.M.A. 236, 8 C.M.R.
86 (1953) ccc ccc eee eee 20
United States v. Ortega, 45 C.M.R. 576 (ACMR
ROUE 555 55 eae ee 0555 ie ees ee ev eeeSEAD 13
United States v. Priest, 21 U.S.C.M.A. 564, 45
C.M.R. 838 (1972) 22... 20.0.0... ccc ee ee eee 24
~ United States v. Ragan, 14 U.S.C.M.A. 119, 33
C.M.R. 381 (1968) ......... 0.00. cc cece eee 13
a ah ENS Cla A A i hE Ct tio te MEE shbset B —————
vi
United States v. Reese, 92 U.S. 214 (1875) .......
United States v. Rio Poon, 26 C.M.R. 830 (CGBR
POUR) one cn bu swad anes annnwdes cusses sane ss
United States v. Sadinsky, 14 U.S.C.M.A. 563, 34
COR. O46 CIDGE) kc cs ken diac sxcensssesnes
United States v. Sanchez, 11 U.S.C.M.A. 218, 29
CMR. SE C00GD) nvcaccvcccaceeteantss sans
United States v. Schneider, 27 C.M.R. 566 (ABR
BOD oun ec PUSS o eka FAR ASS Oe ERE SOE
United States v. Unrue, U.S.C.M.A. , 46
C.M.R. 1826 (Misc. Doc. 1973) ...........556-
United States v. Shoenberg, 16 U.S.C.M.A. 425, 37
C.M.R. 45 (1966) nc ccccescccnneccccccvcens
United States v. Siniger, 6 U.S.C.M.A. 330, 20
COR £6 (1088) icc ces cv ies eviwus dawesass
United States v. Smart, 12 C.M.R. 825 (AFBR
er a ce eee aes
United States v. Snyder, 1 U.S.C.M.A. 428, 4 C.M.R.
45 (10GR) cciccwncvice cee cdasusnwcsvinvnns
United States v. Walker, 21 U.S.C.M.A. 376, 45
CMR. 150 (1078) 9... ccc ccccesccncecsecess
United States v. Walter, 11 C.M.R. 355 (ABR 1953),
rev'd on other grounds, 4 U.S.C.M.A. 617, 16
C.M.R. 101 (1954) 2... ccc cscccvcsnvecvceeee
United States v. Waluski, 6 U.S.C.M.A. 724, 21
GMR. 46 (IBGE) on ccaccccsccsasvovcccuess
United States v. White, 7 C.M.R. 764 (AFBR 1953)
United States v. Will, 25 C.M.R. 674 (ABR 1958) ..
United States v. Witzell, 12 C.M.R. 269 (ABR 1953)
United States v. Wolverton, 10 C.M.R. 641 (AFBR
MORE nonce seehe Ene nee es bos ee REE Re ee ees
United States v. Woodard, 17 C.M.R. 813 (AFBR
i Sen rer re es
Viereck v. United States, 318 U.S. 236 (1943) ....
vii
PAGE
CONSTITUTION AND STATUTES
United States Constitution, First Amendment .... 7, 23
24, 32
United States Constitution, Fifth Amendment .... 6, 8,
12, 22
§ U.S.C. § 7824(a) (2) 20... eee eee 11
UO SAD is piv ncee ar oenes.cedacaneands ote 3
Article XX XIJ—Rules for Government of the Navy,
enacted 23 April 1800, 2 Stat. 45 .............. 15
Article of War, Article 97, 18 Stat. 1342 (1874) ... 17
Uniform Code of Military Justice:
Articles 15-20 (10 U.S.C. §§ 815-820) ........ 19
Article 34(a) (10 U.S.C. § 834(a)) ......... 19
Article 36(a) (10 U.S.C. § 886(a)) ......... 11
Article 56 (10 U.S.C. §856) ................ 11
Article 133 (10 U.S.C. § 933) .............. passim
Article 134 (10 U.S.C. § 934) .....0...0.... passim
5 CPLR. § 788 0. e ccc eee cccccc cee. . U
OTHER AUTHORITIES
Annual Report of the U.S. Court of Military Appeals
and the Judge Advocates General of the Armed
Forces and the General Counsel of the Depart-
ment of Transportation pursuant to the Uniform
Code of Military Justice for the period J anuary 1,
1972, to December 31, 1972 .................. 26
Department of the Army Pamphlet 27-9, Paragraph
4-122, “Military Judges’ Guide” (1969) ....... 21, 31
Department of the Army Regulation 350-212,
“Training: Military Justice’, (2 June 1972) .. 18
Department of the Army Subject Schedule 21-10,
“Military Justice (Enlisted Personnel)”, (24
June 1969) ........... ‘S¥Ee 5) ¥ e404 ve beeweean< 18
T —
PAGE
Gaynor, Prejudicial and Discreditable Military Con-
duct, A Critical Appraisal of the General Article,
; 22 Hastings L. J. 259 (1971) ................ 27
Hodson, Perspective, the Manual for Courts-Mar-
tial, 1984, 47 Mil L Rev. 1 (1972) ............ 26
Manual for Courts-Martial, United States (rev.
ed. 1969)
Paragraph 26b .............. 2 ce eee eee 32
bg ee ee eee 19
FO TOE ao se ee es sees 21
POPOMTODE TETG xx cous icciescicesseseeins 10
4 POPOMTOON BUR. x oon c kk ose ss cesccescceses 28, 31
PUPUIOD BEBO a xc 65 55 6 oes see pee seens 9, 10
; Paragraph 218¢ ..................2 002 ee- 10
; Paragraph 213d ...................-0005- 21
: gic tg we tS Sa a ena 10
| Appendix 6—Forms for Charges and
: Specifications ...................00e000e 10
Quinn, The United States Court of Military Appeals
3 and Individual Rights in the Military Service, 35
i Notre Dame Lawyer 401 (1960) .............. 24
| Reynolds, The Officer’s Guide (1969) ............ 29
Note, Taps for the Real Catch-22, 81 Yale L. J.
; TORO LROIB! 656555450555 see as ounn ee esness 10, 29, 32
Task Force on the Administration of Military Jus-
tice in the Armed Forces (1972). ............. 26
} Wiener, Are The General Military Articles Uncon-
stitutionally Vague?, 54 A.B.A.J. 357 (1968) .. 27
Wiener, Courts-Martial and the Bill of Rights, The
Original Practice 11,72 Harv. L. Rev. 266 (1958) 16
| IN THE
Supreme Court of the United States
October Term, 1973
No. 72-1713
SECRETARY OF THE NAVy,
Appellant,
v.
MARK AVRECH,
Appellee.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
a.
vr
No. 73-206
4.
JACOB J. PARKER, et. al.,
Appellants,
v.
HOWARD B. LEvy,
Appellee.
ON APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
dy
| BRIEF AMICUS CURIAE ON BEHALF OF THE
¢ ASSOCIATION OF THE BAR OF THE
| CITY OF NEW YORK
The Association of the Bar of the City of New York
_ files this brief pursuant to Rule 42 of the United States
Supreme Court. Both appellants and appellees have con-
sented to the filing of this brief, and copies of their consents
have been filed with the Clerk of this Court.
SL OI Fy CRE NET RLF OOPS EE Re
Interest of the Amicus Curiae
The Association of the Bar of the City of New York
(“The Association”) has a membership of more than
10,200 attorneys admitted to practice in New York and
elsewhere. The Association was established by Act of the
New York State Legislature in 1871. Laws 1871, Chap-
ter 819; Amended Laws 1924, Chapter 134. Its stated
statutory purposes are “cultivating the science of juris-
prudence, promoting reforms in the law, facilitating the
administration of justice, elevating the standing of in-
tegrity, honor and courtesy in the legal profession and
cherishing the spirit of brotherhood among the members
thereof.”
The Committee on Military Justice and Military Af-
fairs is a Standing Committee of the Association, ap-
pointed by the President of the Association. There are at
present 24 members of the Association on the Committee.
The Chairman is Marvin M. Karpatkin, an active prac-
titioner in this field, who is a General Counsel of the
American Civil Liberties Union and an Adjunct Professor
of Law at New York University School of Law. Other
members include a law school dean, a judge of the Crimi-
nal Court of the City of New York, and the General Counsel
of the NAACP. Two of the members are currently on
active duty practicing criminal law in the Army Judge
Advocate General’s Corps; most of the members are former
members of the armed services, many of them of the legal
branches of those services; one is a recently retired Captain
in the U.S. Coast Guard whose last assignment was Chief
Legal Officer at the largest Coast Guard installation in
the country, Governor’s Island; and many of the members
have, as military and civilian lawyers, represented service-
men and servicewomen.
na— ;
The Committee’s Subcommittee on the Uniform Code
of Military Justice was asked by the Chairman of the Com-
mittee to study the constitutionality of Article 133 (Con-
duct Unbecoming an Officer and a Gentleman) and Article
134 (General Article) of the Uniform Code of Military
Justice. After due consideration, an overwhelming ma-
jority of the Subcommittee decided that Article 133 and
the first two clauses of Article 134 were unconstitutionally
vague and overbroad, and this finding was adopted by an
overwhelming majority of the Committee at its December
1973 meeting. The Association believes that the Commit-
tee’s views will be helpful to this Court in resolving one of
the key legal issues presented by the appeals at bar, and has
granted the Committee permission to file this brief in its
behalf.
Statutes Involved
Article 133 of the Uniform Code of Military Justice
(10 U.S.C. § 933) provides in pertinent part:
Any commissioned officer . . . who is convicted
of conduct unbecoming an officer and a gentleman
shall be punished as a court-martial may direct.
Article 134 of the Uniform Code of Military Justice
(10 U.S.C. § 934) provides in pertinent part :*
Though not specifically mentioned in this chap-
ter, [1] all disorders and neglects to the prejudice
of good order and discipline in the armed forces,
* The third clause of Article 134 provides trial by court-martial
for “crimes and offenses not capital.” This clause is used to charge
violations of federal law not elsewhere proscribed in the Uniform Code
of Military Justice, and violations of state law incorporated under the
Assimilative Crimes Act, 18 U.S.C. § 13. Although this clause was
mentioned in the opinion of the Third Circuit in the Levy case, 478
F. 2d at 790, we do not believe it is involved in these appeals, and we
offer no views as to its constitutionality. References in this brief to
“Article 134” are meant to encompass only the first two clauses.
PO SEEING RE I PLS BRIE Ts IAS EGE IGS OG LOOPED na OED IES
) —
Sri sit Sh AS hh tatiana 8 ist 8 creek iad RO ee ee
ee Te ores
eee
a
4
[and] [2] all conduct of a nature to bring discredit
upon the armed forces . . . shall be taken cognizance
of by general, special, or summary court-martial,
according to the nature and degree of the offense,
and shall be punished at the discretion of that
court.
Questions Presented
1. Whether Article 133 and Article 134 of the Uniform
Code of Military Justice are unconstitutionally vague and
overbroad.
2. In the case of a felony prosecution, should the armed
services be held to the re of specificity imposed
on civilians?
Because of the parties’ individual interests and their
exhaustive treatment ofall of the issues involved in these
appeals, we confine ourselves to discussion of the issues
we consider most important as a matter of constitutional
policy: the facial constitutionality of Article 133 and
Article 134. We will not discuss the other issues raised
or briefed by the parties.
Statement of the Cases
Amicus incorporates the statement of the Avrech case
as outlined in Appellee Avrech’s brief, and the statement
of the Levy case as outlined in the Appellant government’s
brief.
Summary of Argument
A statute which either forbids or requires the perform-
ance of an act in terms which are so vague that the average
reasonable man is forced to guess at its meaning, inter-
pretation, and application, is unconstitutionally vague and
overbroad, and violates due process of law.
I
Article 134 is so broad in scope that it gives no fair
warning of the conduct it proscribes and fails to provide
any ascertainable standard of guilt to circumscribe the
discretion of the enforcing authorities.
Furthermore, although the Manual for Courts-Martial,
United States (rev. ed. 1969), hereinafter referred to as
Manual, (the administrative regulations governing mili-
tary discipline which have been promulgated pursuant to
the Uniform Code of Military Justice) does contain a num-
ber of precise specifications which can be used to charge
a serviceman or servicewoman with a crime, administra-
tive regulations cannot be used to validate an otherwise
unconstitutional statute. In addition, the specifications
in the Manual are not all encompassing; they are only
examples of conduct which might be considered to come
under the Article. Accordingly, the Article as applied
represents a limitless catchall, without a unifying theme,
for various types of vague misconduct not otherwise codi-
fied, ranging from abusing animals to wearing unauthor-
ized insignia.
Moreover, there is no valid countervailing military
justification for suspending the application of the consti-
tutional right of fair warning to a penal statute which
prescribes serious criminal penalties to offenders, as op-
posed to administrative sanctions. The good order and
discipline necessary to accomplish the mission of the armed
services tair be achieved by means of a statute more clearly
in accord with constitutional guidelines.
Thus, this Article is unconstitutionally vague and over-
broad,
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Article 133, which applies only to officers, suffers from
the same vagueness and lack of military justification as
Article 134. In addition, neither this Article nor the
Manual explain what conduct “ynbecomes” an officer or a
gentleman. Moreover, the word “gentleman” is a highly
subjective, amorphous term and open to abuse. It is un-
clear who is to decide what is or is not “gentlemanly” con-
duct, especially in a time of changing values and mores.
There is grave doubt that the statute gives fair notice of
the crimes intended to be covered.
Thus, this Article is unconstitutionally vague and over-
broad.
ARGUMENT
POINT I
Article 134 is unconstitutional on its face.
We submit that the convictions of appellees for violation
of Articles 133 and 134 in the instant cases must be held
violative of the due process clause of the Fifth Amendment
because the statute is unconstitutionally vague and over-
broad.!
At the outset, it is important to recognize that although
both of the instant cases are “free speech” cases, we do not
confine our argument to that area of constitutional inter-
pretation. Rather, unfettered by partisan interests, we
urge that this Court rule in these cases on strict constitu-
tional policy grounds. This Court has held a hard line
against vague criminal statutes which offend the constitu-
tional norm of due process. Moreover, this Court has not
limited it application of the vagueness doctrine to “free
speech” cases; decisions abound concerning vague statutes
1. As to the question of retroactivity, see note 14 infra.
_—_
which seek to regulate a wide range of activities, both within
and without the context of the First Amendment. Gooding
v. Wilson, 405 U.S. 518 (1972) (free speech) ; Papachristou
v. City of Jacksonville, 405 U.S. 156 (1972) (vagrancy
law) ; Coates v. City of Cincinnati, 402 U.S. 611 (1971)
(freedom of association); United States v. Cardiff, 344
U.S. 174 (1952) (FDA inspection statute); Lanzetta v.
New Jersey, 306 U.S. 451 (1938) (“gangster” label
statute) ; Cline v. Frink Dairy Co., 274 U.S. 445 (1927)
(anti-trust profit controls) ; Connally v. General Construc-
tion Co., 269 U.S. 385 (1926) (minimum wage law);
United States v. Cohen Grocery Co., 255 U.S. 81 (1921)
(price controls) ; and United States v. Reese, 92 U.S. 214
(1875) (statute describing violations of the Fifteenth
Amendment by election officials) .2
We suggest that the Court’s holding in the cases at bar
need not be restricted to a decision on First Amendment
grounds. Rather, as we point out infra, Articles 133 and
134 do not meet constitutional standards of due process
for reasons in addition to their capacity to stifle exercise of
First Amendment freedoms. For that reason we meet the
question of facial constitutionality of these statutes con-
sidering that their infirmity goes far beyond even the im-
portant First Amendment considerations.
A. Article 134 is unconstitutionally vague.
The requirement for specificity in drafting criminal
statutes is a “basic principle of due process.” Grayned v.
2. Other federal courts have also applied the vagueness concept
in areas other than free speech. See Corporation of Haverford C. ollege
v. Reeher, 329 F. Supp. 1196 (E.D. Pa. 1971) (state statute denying
financial aid to convicted misdemeanants). See also United States v.
Community TV, Inc., 327 F. 2d 797 (10th Cir. 1964) (excise tax laws
must be applied on the basis of specific description of transaction
covered, not by analogy ).
FARO TEE LO RTE TE EE ig EET OEE GT OTE
Rye oan eee ee ee eS Er es |
aA SWRA ipo kh eant ed Wipe iain a Sate el edd ee iad ee
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8
City of Rockford, 408 U.S. 104, 108 (1972). Thus, a
criminal statute must give fair warning to the citizenry
of what conduct is prohibited. If the statute is drawn
“in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its appli-
cation”, it will be held violative of “the first essential of
due process of law.” (citations omitted) Connally v. General
Construction Co., supra, 269 U.S. at 391. Furthermore,
a criminal statute must present those who apply it with
“explicit standards” for application in order to prevent
“arbitrary and discriminatory enforcement of the law.”
Papachristou v. City of Jacksonville; Grayned Vv. City of
Rockford, supra.
These principles are part of the very fibre of the due
process clause of the Fifth Amendment, and have been re-
affirmed by this Court most recently in Broadrick v. Okla-
homa, 418 U.S. 601 (1973). See United States Cwil
Service Commission Vv. National Association of Letter Car-
riers, 413 U.S. 548 (1973). Moreover, the standards ap-
plied by this Court in the civilian context have been held
applicable as well to statutes governing -the conduct of
military personnel. United States v. Howe, 17 U.S.C.M.A.
165, 176-79, 37 C.M.R. 429, 440-43 (1967). See also
United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37
(1953).
Accordingly we submit that the terms of Article 134,
prohibiting “all disorders and neglects to the prejudice of
good order and discipline in the armed forces” and “all
conduct of a nature to bring discredit upon the armed
forces” do not meet the requirements of fair warning and
establishment of ascertainable standards for enforcement.
Thus, Article 134 is unconstitutionally vague and offends
the basic principles of due process required by the Fifth
Amendment.
9
' ° i ial
L coon eb candies nr Graeme arning of what
On its face, the statute gives no notice to the service-
man fro.a which he may determine what type of conduct is
“prejudicial to good order and discipline” or service-dis-
crediting. Appellant argues however, that this “general-
ized language . . . gains meaning from and embodies the
well-settled customs and practices of the military commu-
nity; and that those members therefore have sufficient
notice of what conduct is prohibited by the Article. ( Ap-
pellant’s Brief in Avrech at 27). We submit that careful
examination of the components of the “customs and prac-
tices of the military community” does not support that
conclusion.
Appellant has relied specifically on the provisions of
the Manual and the body of military and civilian case law
interpreting the general article (Appellant’s Brief in
Avrech at 28). Reliance on the Manual to fill the void
created by the vague facial language of Article 134 is un-
satisfactory. First, it is doubtful whether resort may be
had to such a publication for this purpose, for, as this
Court has held, if a statute is vague on its face, “specifica-
tion of the details of the offense[s]} intended to be charged
would not seem to validate it.” Lanzetta v. New Jersey,
306 U.S. 451, 453 (1938). See also Coates v. City of Cin-
cinnati, supra. In any event, the Manual itself does not
satisfy due process notice requirements because it is open-
ended and does not contain a description of all offenses
which may be punished under this Article.
The Manual, as a general guide, states that prosecution
under the first clause of Article 134 is limited to cases in
which the prejudice to good order and discipline is “rea-
sonably direct and palpable” (paragraph 2136), and that,
the second clause of the Article is intended to proscribe
conduct which “has a tendency to bring the service into
2
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ens
10 - .
disrepute or which tends to lower it in public esteem” (para-
graph 213c). But these terms suffer from the same vague-
ness problem as the language of Article 134 itself. How is
the serviceman to know what conduct constitutes a “rea-
sonably direct and palpable” prejudice to good order and
discipline? How is he to know which of his acts will have
a “tendency to bring the service into disrepute?” Examina-
tion of the Manual’s sixty-three model specifications under
this Article (Appendix 6c), the discussion of fourteen of
the offenses in some detail (in paragraph 213f), and the
listing of many of those and other offenses in the Table of
Maximum Punishments (paragraph 127c), is unsatis-
factory because the list is not intended to be exclusive, but
is purposely “elastic.” United States v. Fisher, 6 C.M.R.
195, 199 (ABR 1952). See also United States v. Holt,
7 U.S.C.M.A. 617, 23 C.M.R. 81 (1957). Indeed, the
Manual and Article 134 themselves restrict the punishable
offenses only by noting that they must be “not specifically
mentioned” in another article of the Code (Manual, para-
graph 213b).
Reference to the Manual to give definition to Article
134 is unsatisfactory also because the Manual is promul-
gated pursuant to Executive Order and does not constitute
a body of substantive law. Such a procedure would raise
serious constitutional questions.* The United States Court
3. We agree with appellant’s position that “The status of the
Manual’s specifications as substantive military law is unsettled”
(Appellant’s Brief in Avrech at 30, n. 14). See Reid v. Covert, 354
U.S. 1, 38 (1957). However, we urge this Court to reject a scheme
whereby the Executive may legislate substantive criminal conduct, a
task traditionally and rightly within the exclusive province of the
Congress. In this regard see Note, Taps for the Real Catch-22, 81
Yale L.J. 1518, 1523-24 (1972). See United States v.. Eaton,
144 U.S. 677 (1892) ; Viereck v. United States, 318 U.S. 236, 241
(1943) ; United States v. George, 228 U.S. 14 (1913) ; United States
v. Grimaud, 220 U.S. 506 (1911) ; Union Bridge Company v. United
States, 204 U.S. 364 (1905).
atl
1l
of Military Appeals itself has recognized that there is no
“basis for the proposition that the President may create
an offense under the Code”. United States v. McCormick,
12 U.S.C.M.A. 26, 28, 80 C.M.R. 26, 29 (1960). Thus,
this Court should not allow reference to the Manual to~
define offenses under the general article in the absence of
legislative provision for such reference. Congress has
directed only that the President establish rules of pro-
cedure and evidence and fix maximum penalties, 10 U.S.C.
§§ 886 and 856 (1970). He has a this in the Manual
under Articles 36(a) and 56 of the Uhiform,Code of-Mili-
tary Justice, respectively. Nothing in the President’s
statutory grant of power permits the establishment of sub-
stantive criminal offenses. -In any event, as discussed
infra, ‘the open-ended list of Article 134 offenses in the
Manual may give notice of what has been punished on oc-
casion in the past, but gives no warning of what other
types of conduct will be considered proscribed in the future.
Contrary to the appellant’s position (Brief in Avrech
at 31), this Court’s recent decision in Letter Carriers,
supra, does not resolve the problem in the instant cases.
That case held that a provision of the Hatch Act, 5 U.S.C.
§ 7824(a) (2) was not void for vagueness, in part be-
cause it gave notice of a listing of prohibited and permitted
activities contained in Civil Service Commission Regula-
tions, 5 C.F.R. § 733. It is important to note that, unlike
the Manual, the Civil Service Regulations do not purport
to proscribe conduct which will lead to criminal prosecu-
tion. Indeed, the penalty for violation of the Hatch Act
provision is removal from government service. While in
itself a stringent punishment, such a sanction does not
approach the deprivation of liberty and imposition of a
punitive discharge which may result from a federal court-
martial conviction. While in general there is no right to
Nat Ss on ee ee 2 7 tee TARE Are RT A ALT RS POM MOSS Ge RF ED ESSE
A
12
employment with the federal government, the Fifth Amend-
ment grants the right not to be tried, convicted or in-
carcerated without due process of law. Thus, the require-
ment for strict construction of penal statutes present in
the instant cases was not present in Letter Carriers, Fur-
ther, Congress specifically intended the Civil Service Com-
mission to exercise a rule-making function for the political
conduct of federal employees, although that power did not
give the Commission a “subordinate legislative role in
fashioning a more expansive definition of the kind of con-
duct that would violate [the statute],” Jd., 413 U.S. at
571-72; In the case of the Manual, however, the list of
substantive Article 134 crimes adopted by the President
reflects the exercise of a legislative role which exceeds his
| delegated powers. Indeed, the changes in the Manual in
1968 and 1969 reflect an effort at a “more expansive
; definition” of conduct prohibited under the general article.‘
Thus, a result in the instant cases which rejects resort to
the Manual as an enactment of substantive Article 134
offenses would not conflict with the holding in Letter Car-
; riers. The statutes, regulations and their purposes involve
different policy considerations. We deal here with penal
sanctions for criminal conduct, requiring the ultimate in
specificity and strict statutory construction. Letter Car-
riers simply does not apply.
3
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After the serviceman has been unable to determine
from the Manual what conduct Article 134 proscribes, he
is urged to examine the cases which have interpreted this
Article (Appellant’s Brief in Avrech at 28). However,
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4. For example, the Article 134 crimes of obstructing justice,
gambling with enlisted men, cohabitation, and burning with intent to
defraud were not mentioned in the 1951 Manual for Courts-Martial
but are included in the Table of Maximum Punishments in the Manual
and model specifications are provided therefor.
13
the cases give little idea of what to expect by way of
prosecution, for they interpret Article 134 to permit trial
for a myriad of offenses not listed or even hinted at in the
Manual.> While a reading of the cases and the Manual
5. There are actually seventy-six offenses listed in the Table of
Maximum Punishments for Article 134. Paragraph 127, Manual
for Courts-Martial. The following offenses not listed in the Manual
have been held violative of either or both of the first two clauses of
Article 134: a
Court of Military Appeals: Endangering military property even
though no damage inflicted, United States v. Martinson, 21
U.S.C.M.A. 109, 44 C.M.R. 163 (1971): window peeping, United
States v. Shoenberg, 16 U.S.C.M.A. 425, 37 C.M.R. 45 (1966) ;
making telephone calls without paying, an offense which the court
noted “sounded” in larceny, but even if not a “crime”, it was serious
service-discrediting conduct, United States v. Herndon, 15 U.S.C.M.A.
510, 36 C.M.R. 8 (1965) ; wrongfully jumping into the sea from an
aircraft carrier, United States v. Sadinsky, 14 U.S.C.M.A. 563, 34
C.M.R. 343 (1964) ; assaulting a specialist (as opposed to a non-
commissioned officer) in the execution of his office, United States v.
Ragan, 14 U.S.C.M.A. 119, 33 C.M.R. 331 (1963) ; embracing another
man, United States v. Annal, 13 U.S.C.M.A. 427, 32 C.M.R. 427
(1963) ; bestial acts with a chicken, United States v. Sanchez, 11
U.S.C.M.A. 218, 29 C.M.R. 32 (1960); defiling the flag, United
States v. Cramer, 8 U.S.C.M.A. 221, 24 C.M.R. 31 (1957) ; cheating
at calling out bingo numbers, United States v. Holt, 7 U.S.C.M.A.
617, 23 C.M.R. 81 (1957); engaging in sexual intercourse in the
presence of others (the couple in the next bed), United States v.
Berry, 6 U.S.C.M.A. 638, 20 C.M.R. 325 (1956) ; accepting money
to transport a Korean female in a government vehicle, United States
v. Alexander, 3 U.S.C.M.A. 346, 12 C.M.R. 102 (1953) ; soliciting,
without pay, other enlisted men to engage in sexual intercourse with a
female, United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15
(1952).
Army Court of Military Review: Homosexual conduct not
amounting to sodomy, United States v. Ortega, 45 C.M.R. 576
(ACMR 1972); altering an official document without intent to
defraud, United States v. Maze, 42 C.M.R. 376 (ACMR 1970), rev'd
on other grounds, 20 U.S.C.M.A. 29, 44 C.M.R. 29 (1971): resisting
civil apprehension, United States v. Hunt, 18 C.M.R. 498 (ABR
1954) ; mistreating fellow POWs, United States v. Floyd. 18 C.M.R.
362 (ABR 1954), pet. denied, 6 U.S.C.M.A. 817, 19 C.M.R. 413
(Footnote continued on next page)
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14
may give some idea what conduct was proscribed in the
past, there is still no fair warning of what conduct is
considered criminal today (nor was there then to those
convicted in the cases listed in note 5, supra).
To solve the notice question of what conduct will be
currently proscribed under Article 134, it has been argued
that military men will know from the customs and tradi-
tions of the service what standard of conduct is expected
of them in order to avoid prosecution under Article 134.
In this regard, the Court of Military Appeals, citing the
(Footnote continued from previous page)
(1955) ; associating with a notorious prostitute, United States v.
Mallory, 17 C.M.R. 409 (ABR 1954) ; soliciting and accepting money
for showing an obscene movie, United States v. Cowan, 12 C.M.R.
375 (ABR 1953) ; borrowing from an enlisted man, United States v.
Witzell, 12 C.M.R. 269 (ABR 1953) ; operating a bawdy house in
government quarters, United States v. Butler, 11 C.M.R. 445 (ABR
1953) ; soliciting an enlisted man to go AWOL, United States v.
Jackson, 8 C.M.R. 215 (ABR 1952), pet. denied, 2 U.S.C.M.A. 677,
8 C.M.R. 198 (1953) ; drinking with enlisted men, United States v.
Livingston, 8 C.M.R. 206 (ABR 1952), pet. denied, 1 U.S.C.M.A.
676, 8 C.M.R. 178 (1953) ; masturbating in the presence of children,
United States v. Neill, 4 C.M.R. 221 (ABR 1952), pet. denied, 2
U.S.C.M.A. 665, 5 C.M.R. 130 (1952) ; officer found in his apartment
with enlisted man’s wife during early morning hours, United States
v. Lee, 4 C.M.R. 185 (ABR 1952), pet. denied, 1 U.S.C.M.A. 712,
4C.M.R. 173 (1952).
Air Force Court of Military Review: Inducing others to commit
masturbation, United States v. Adams, 21 C.M.R. 734 (AFBR 1956) ;
making obscene telephone calls, United States v. Harbin, 20 C.M.R.
925 (AFBR 1955); procuring a miscarriage, United States v.
Woodard, 17 C.M.R. 813 (AFBR 1954) ; soliciting funds to act as
defense counsel im a court-martial, United States v. White, 7 C.M.R
764 (AFBR 1938).
Navy Court of Military Review: Striking another person in the
Navy, United States v. Goldie, 1 C.M.R. 495 (NBR 1951).
Coast Guard: Chief Petty Officer having a female in his quarters at
midnight, United States'v. Cole, 30 C.M.R. 755 (USCG Action of
General Counsel as Supervisory Authority 1961).
Manual as an example, has held that Article 134 has “ac-
quired the core of a settled and understandable content of
meaning.” United States v. Frantz, supra, 7 C.M.R. at 39.
Thus, that Court reasoned, because Article 134 has been
used in military law since before the American Revolu-
tion,® it must be considered “not in vacuo, but in the con-
text in which the years have placed it.” Jd.
This argument seemingly finds support»in Dynes v.
Hoover, 61 U.S. (20 How.) 65 (1858), which held that the
predecessor of the general article was not void for vague-
ness because the article involved (Article XXXII, Rules
for Government of the Navy, enacted 23 April 1800, 2
Stat. 45, 49) covered crimes that had been recognized as
such “by the usages in the navy of all nations” and because
“what the crimes are and how they are to be punished, is
well known to practical men in the navy and army and by
those who have studied the law of courts-martial.” Jd. at
82. Indeed, the Court of Military Appeals has refused to
reconsider the constitutionality of Article 134, considering
itself bound by the “precedent” of Dynes.?. We submit that
reliance upon Dynes as precedent for the constitutionality
of the present general article is completely misplaced, as
demonstrated by the Court below in Levy v. Parker, supra,
478 F.2d at 785-88. Put simply, times have changed.
- While “practical men” in the service of their country in the
nineteenth century may have been aware of the conduct
proscribed by the general article of 1800, the same is
hardly true today. Indeed} the sheer number of new and
unlisted offenses under current military laws demonstrates
oa
6. The history of this Article is amply discussed by the Circuit
Courts below, in Levy, 478 F.2d at 784: in Avrech, 477 F.2d at
1240-41.
7. United States v. Unrue, U.S.C.M.A. , 46 C.M.R. 1326
(Mise. Doc. 1973).
rt Tt ge! Retr He at ie See ee ee em es at ee ee ee
dA ane ite BPM ee ala a Nena haley 00 tet eet MS Be a
16
the improbability of such awareness.* Furthermore, in
1858 and throughout most of the nineteenth century the
standing Army and Navy of the United States numbered
in the hundreds. The pay was miserable and military
service attracted only the dregs of society in the lower
enlisted ranks. See Wiener, Courts-Martial and the Bul
of Rights, The Original Practice II, 72 Harv. L. Rev. 266,
292, 301-02 (1958). The concept of a standing Army and
Navy numbering in the millions, most of them conscripts,
was totally foreign to the nineteenth century American
thought. Surely rules which may have been necessary and
proper for regulating the armed forces 115 years ago can
no longer be assumed valid today, ipso facto. Any society
which permitted the existence of the “peculiar institution”,
slavery, could hardly be expected to be overly concerned
about the constitutional rights of soldiers and sailors.
Wiener, supra, at 293.
This Court has consistently rejected the argument that
contemporary interpretation of the Bill of Rights is dictated
be standards which existed in times past. See e.g., Roe v.
Wade, 410 U.S. 113 (1973) (abortion case) and Papa-
christou v. City of Jacksonville, supra (Elizabethan poor
laws cannot be used to uphold vagrancy statutes because
such theories no longer. fit the facts). See also United
States v. Walker, 21 U.S.C.M.A. 376, 45 C.M.R. 150 (1972)
(concept that as times and facts change so must the reading
of the Constitution fundamental to our system of govern-
ment). Compare Scott v. Sanford, 60 U.S. (19 How.)
393 (1857) with Brown v. Board of Education, 349 US.
294 (1954). (it is interesting to note that Justice Me-
Lean, the sole dissenter in Dynes, was also one of the two
dissenters in the Dred Scott case).
8. See note 5, supra.
_—_
17
Finally, the scope of review by federal courts has
increased greatly since Dynes was decided. See Burns
v. Wilson, 346 U.S. 137 (1953); Johnson v. Zerbst, 304
U.S. 458 (1938). In Dynes, the Court followed the usual
practice of applying strict common law rules of pleading
and practice to all cases, civilian or military. See Ex parte
Milligan, 71 U.S. (4 Wall.) 2 (1866). Moreover, a court-
marital conviction for a violation of an Article of War which
constituted a “neglect or disorder” did not subject the
accused to imprisonment in a penitentiary. Articles of War,
Article 97, 18 Stat. 1842 (1874) ; Carter v. McClaughry, 183
U.S. 365, 376 (1902). Hence the primary vehicle for
collateral attack of any conviction, habeas corpus, was not
available for those who had been convicted of a “neglect or
disorder” by courts-martial. Federal jurisdiction is no
longer dependent upon these common law rules. Dombrow-
ski v. Pfister, 380 U.S. 479 (1965) ; Kauffman v. Secretary
of the Air Force, 415 F.2d 991 (D.C. Cir. 1969).
The only conclusion that can be drawn is that it is
completely inappropriate to rely on a case over 115 years
old in making a determination whether or not the present
general article is unconstitutionally vague and overbroad.
Not only have society and the Army radically changed dur-
ing this time but so has the article itself and the law ap-
plicable to it. Indeed, the mercurial nature of the applica-
tion of Article 134 is the quintessence of its constitutional
infirmity.
One method by which Congress has attempted to
achieve some modicum of notice concerning the meaning
of Article 134 is the provision in Article 137 that, among
other provisions, the punitive articles (i.e. Articles 77
through 134) “shall be carefully explained to each enlisted
member at the time of his entrance on active duty, or
T a
18
within six days thereafter. They shall be explained again
after he has completed six months of active duty, and again
at the time when he reenlists.” The crucial question arises
as to what constitutes a “careful expianation” of Article
134. The Army, for example, devotes a total of only
twenty minutes to an explanation of Articles 71-134 during
the first six days of enlisted basic training. The re-ex- —
planation six months thereafter consists of a forty-nine
minute period of instruction on these sixty-four punitive
articles. The instructors need not be attorneys, nor do
they seem to be provided with any regulatory guidance as
to what constitutes a “careful explanation” of the statute.
The problem is not merely that the training time is woe-
fully short, but more importantly that a careful explana-
tion would require an exposition of all of the case law and
Manual provisions interpreting Article 134. Even if such
a careful explanation were possible within a reasonable —
period of training, it would still not satisfy constitutional
notice requirements, however, because of the open-ended
nature of the Article. Thus, even Article 137, the statutory
notice provision, is inadequate to transform Article 134 into
a statute which gives fair warning of its proscription.
Based upon this analysis we submit that Article 134
is constitutionally infirm because it is drawn “in terms so
vague that men of common intelligence must necessarily
guess at its meaning. . . .” Connally v. General Construction
Co., supra, 269 U.S. at 391.
Snel AP bP ata Eiate Riele PL Wea vel a ABLES MRT RSIS IR RI des SMP ott heads abana MAME CVT Lert ans RS
2. Article 134 fails to provide explicit enforcement
standards.
The general article is vague not only because it fails
to provide notice, but also because “men of common intel-
9. Army Regulation 350-212, “Training: Military Justice,” 2
3 June 1972; Army Subject Schedule 21-10, “Military Justice (Enlisted
Personnel) ,” 24 June 1969, Courses A and B.
19
ligence . . . differ as to its application.” Jd. As a con-
comitant to lack of fair warning to servicemen in general,
the Article provides insufficient guidance to those who must
enforce it. The standard here is whether the statute pre-
vents arbitrary and discriminatory enforcement by provid-
ing “explicit standards for those who apply them.” Grayned
v. City of Rockford, supra, 408 U.S. at 108. In the mili-
tary society, the ultimate “enforcer” of the Uniform Code
of Military Justice is the commanding officer, at whatever
level. Initially it is the “unit commander” who usually
prefers charges and conducts the primary investigation
by himself or through military policemen. Manual, para-
graphs 296 and 32. Furthermore, it is a commander at some
level who must determine what level of judicial or non-
judicial action is to be taken. Articles 15-20 and 34( a),
Uniform Code of Military Justice. Thus, the threshold
question is whether Article 134, the Manual, or case law
circumscribes adequate standards so that the commander
will know when and how to apply the Article.!° For the
reasons discussed supra at pages 6 through 18, the answer
must be that there is insufficient guidance to prevent arbi-
trary and discriminatory enforcement. This conclusion is
supported by the many occasions on which the military ap-
pellate courts have been required to decree that commanders’
attempts to punish a variety of conduct under Article 134
were beyond the bounds of the statute."
10. As appellee Avrech points out (Brief at 58), the government
fails to address this vital issue in its brief.
11. The following conduct has been held to be not within either
of the first two clauses of Article 134:
Court of Military Appeals: Exposure of the genitals to a group of
men in the commanding officer's office. United States v. Caune, 22
U.S.C_M.A. 200, 46 C.M.R. 200 ( 1973) : usury, United States v. Day,
11 U.S.M.C.A. 549, 29 C._M._R. 365 (1960) : negligent indecent ex-
posure, United States v. Manos, 8 U.S.C_M.A. 734, 25 C.M.R. 238
(Footnote continued on next page)
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20
The requirement for providing ascertainable enforce-
ment standards does not stop with the need for notice to the
military commander. A statute may also be unconstitu-
tionally vague if it “leaves judges and jurors free to decide,
without any legally fixed standards, what is prohibited and
what is not in each particular case.” Giaccio v. Pennsyl-
(Footnote continued from previous page)
(1958) ; passenger in auto fleeing the scene of an accident, United
States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46 (1956) ; negligent
failure to maintain sufficient funds in a checking account, United
States v. Downard, 6 U.S.C.M.A. 538, 20 C.M.R. 254 (1956) ; wrong-
fully refusing to testify before a Canadian coroner’s inquest, United
States v. Siniger, 6 U.S.C.M.A. 330, 20 C.M.R. 46 (1956) ; mis-
appropriation of a government vehicle, United States v. Norris,
2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953).
Army Court of Military Review: Introduction of obscene pictures
onto a federal reservation for personal use, United States v. Schneider,
27 C.M.R. 566 (ABR 1958) ; simple trespass, United States v. Will,
25 C.M.R. 674 (ABR 1958) ; occupying a hotel room with a female,
United States v. Walter, 11 C.M.R. 355 (ABR 1953), rev'd on other
grounds, 4 U.S.C.M.A. 617, 16 C.M.R. 191 (1954) ; possession of
another’s ration card, United States v. Johnson, 5 C.M.R. 268 (ABR
1952).
Air Force Court of Military Review: Sniffing glue, where no
intoxication is alleged, United States v. Menta, 39 C.M.R. 956 (AFBR
1968) ; burning one’s own home, United States v. Freeman, 15 C.M.R.
639 (AFBR 1954), pet. denied, 4 U.S.C.M.A. 734, 16 C.M.R. 292
(1954); wrongfully being in a WAF dayroom (accused male) at
3 A.M., United States v. Smart, 12 C.M.R. 825 (AFBR 1953);
ejecting a member of one’s household in the early morning hours
where no duty to support is alleged, United States v. Francis, 12
C.M.R. 695 (AFBR 1953), pet. denied, 3 U.S.C.M.A. 837, 13 C.MLR.
142 (1953) ; having introduced a German female onto a military post.
failing to remove her, United States v. Habbard, 12 C.M.R. 4%
(AFBR 1953) ; violation of foreign law, United States v. Wolverton,
10 C.M.R. 641 (AFBR 1953).
Coast Guard Court of Military Review: Removal of fuses from a
fuse box, United States v. Davis, 27-C.M.R. 908 (CGBR 1958);
possession of U.S. currency in the Philippines, United States v. Rio
Poon, 26 C.M.R. 830 (CGBR 1958) ; possession of narcotics para-
phernalia, United States v. LeFort, 15 C.M.R. 596 (CGBR 1954).
_—
21
vania, 382 U.S. 399, 402-03 (1966). See also Grayned v.
City of Rockford, supra. In trials by court-martial, the
military jury must be instructed upon all of the elements
of the offenses charged, including, in an Article 134 prose-
cution, whether the conduct charged is prejudicial to good
order and discipline or service-discrediting. Manual, para-
graphs 73a, 213d. By way of further definition, the in-
struction will invariably include the admonition that Article
134 does not contemplate “distant effects” but is limited to
cases where the prejudice is “reasonably direct and pal-
pable”, and that conduct which is service-discrediting is that
which “has a tendency to bring the service into disrepute or
which tends to lower it in public esteem.” Paragraphs
4-126, Department of the Army Pamphlet 27-9, “Military
Judges’ Guide”, (1969). This “definition” suffers from the
same vagueness as the statute and the Manual. Moreover,
it requires a wholly subjective decision by military judges
and court-martial members, each of whom will have his own
concept of what type of conduct (if not every type), should
be proscribed.
Appellants seem to suggest that the standard instruc-
tions assure that the prohibitions of Article 134 are con-
cretized and thus prevent overbroad application. See Appel-
lant’s Brief in Avrech at 38. See also discussion, infra, at
23-24. To the contrary, these instructions illustrate the im-
precision with which the statute may be applied at the whim
of the commander, the military judge and the military jury.
Even ascribing total good faith to all concerned, there is
more than a fair risk that the prosecution for a given type
of conduct will fall without the ambit of the statute. The
military cases in this area!? reflect the very real probability
that those who enforce them will do so against conduct which
12. See note 11, supra.
Roe err u
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DNR nn abt LR aA ee RO ob DRE Se ee «teat
2 Bi
is not illegal, due to the absence of sufficient standards or
guidelines. Gooding V. Wilson, Papachristou v. City of
Jacksonville, and United States v. Reese, supra.
It is insufficient to argue that appellate courts may
eventually vindicate service members convicted improperly
under Article 134; no one should be subjected to prosecution
for conduct which is not illegal. Due process requires that
the accused must be afforded adequate notice by the statute’
under which he is charged, not merely through its eventual
interpretation years later by an appellate court. Article
134 does not provide that protection for the military accused,
either at the time he is charged or at the time he is tried.
Indeed, by submitting the question to the court members
on decidedly vague instructions, the military practice gives
fact-finders the unprecedented opportunity to make law
through their findings of guilty. If executive legislation is
prohibited, United States V. McCormick, supra, surely this
Court will not sanction the establishment of a military
common law of substantive crimes arrived at on an ad hoe
basis by diverse court-martial juries.
Just as the soldier or sailor cannot reasonably determine
what conduct is prosc ibed by Article 134, so the com
mander, military judge and court members are in the dark.
The danger is that the latter group are charged with en-
forcing this statute to regulate the conduct of the former.
This Court has never permitted the blind thus to lead the
blind through the maze created by a vague penal statute.
The strong constitutional policy against vagueness of this
sort dictates a holding that Article 134 does not comport
with the due process requirements of the Fifth Amendment
because it does not give fair warning to the accused or his
accuser. Gooding v. Wilson, Papachristou v. City of Jack-
sonville, Coates v. City of Cincinnati, United States V.
Cardiff, and Lanzetta v. New Jersey, supra.
_—_
23
B. Article 134 is unconstitutionally overbroad.
Because it has the capacity for prohibiting a wide range
of activities, both constitutionally protected and unpro-
tected, Article 134 is unconstitutionally overbroad. We
agree that the question of overbreadth is usually raised in
the context of abridgement of First Amendment rights.
(Appellant’s Brief in Avrech at 35). However, the neces-
sity for guarding against a “chilling effect” is not limited
to the “free speech” area as appellant seems to urge. (Jd.
at 34-38). Thus, in Coates v. City of Cincinnati, supra,
this Court reversed a conviction under a municipal ordi-
nance which forbade “annoying conduct”, because the stat-
ute could have encompassed both protected and unprotected
conduct within the realm of freedom of assembly and as-
sociation. Id., 402 U.S. at 615. See also Lanzetta v. New
Jersey, supra. Significantly, the Court in Coates did not
look to the application of the statute to the conduct allegedly
proscribed in that case:
. . - It is the ordinance on its face that sets the
standard of conduct and warns against transgres-
sion. The details of the offense could no more serve
to validate this ordinance than could the details of
an offense charged under an ordinance suspending
unconditionally the right of assembly and free
speech. I/d., at 616.
Thus, appellant’s attempt to narrow the issue here to
the application of Article 134 to “disloyal statements” must
fail. The issue is rather whether the statute is overly broad
on its face because it “abut[s] upon sensitive areas of basic
First Amendment freedoms”. Grayned v. City of Rockford,
supra, 408 U.S. at 109. The inquiry is not whether a “chil-
ling effect” has actually occurred in the case at bar, but
whether the challenged statute has an unconstitutional po-
Oe ae ee en eee
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—
24
tential for such an effect when viewed on its face. See
Gooding v. Wilson, Coates v. City of Cincinnati, and Dom-
browski v. Pfister, supra.
When viewed on its face, even considering the specific
listing of possible offenses in the Manual the conclusion is
inescapable: a statute which proscribes “any conduct”
prejudicial to good order and discipline or service-discredi-
ting, is so broad in sweep that it may very well reach con-
duct which is protected under the First Amendment. This
Court need never reach the question of whether Levy and
Avrech engaged in protected activities. Their convictions
must fall on the threshold ground that the statute on its
face may~intrude upon constitutionally protected conduct
or speech. Coates v. City of Cincinnati, and Gooding v.
Wilson, supra.
C. No countervailing military necessity.
We recognize that due to the exigencies of military
service, including the need for effective discipline and com-
bat-readiness, the serviceman may not enjoy quite as broad
a First Amendment freedom as do other citizens. However,
the Court of Military Appeals has held that where these
circumstances exist an abridgement of First Amendment
freedoms may not be justified merely on the assertion that
the military is “different”. Rather, the special need of the
military must be clearly demonstrated. United States v.
Priest, 21 U.S.C.M.A. 564, 570, 45 C.M.R. 338, 344
(1972).!° This ad hoc approach demonstrates the over-
13. The Court of Military Appeals has made clear that Ce
are entitled to the protections set forth in the Bill of Rights, particularly
the guarantees of free speech and assembly contained in the First
Amendment. United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R.
338 (1972) ; United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255
(1970) ; United States v. Daniels, 19 U.S.C.M.A. 529, 42 C.M.R. 131
(1970) ; United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429
(1967). See Quinn, The United States Court of Military Appeals
and Individual Rights in the Military Service, 35 Notre Dame Lawyer
491 (1960).
ana ae Re
. =
broad sweep of Article 134, because those who contemplate
certain action or speech are unable to determine whether
their conduct will fall within the ambit of the statute. In
this sense, the overbreadth of Article 134 is truly a symp-
tom of its vagueness.
While the parties to these cases have well described the
application of the general article to the offenses charged
against Avrech and Levy, we submit that as a matter of
sound policy this Court should not permit the statutes to
stand due to their facial overbreadth. To hold otherwise
would be to retreat unnecessarily from the standards of
specificity and narrow drafting which this Court has re-
quired of statutes which have the potential for abutting
| upon the personal freedoms of the citizenry. Gooding v.
Wilson, supra; N.A.A.C.P. v. Button, 371 U.S. 415 (1968).
Even considering the obvious need for order and discipline
in the military setting, the statute as presently worded is
too broad to comport with constitutional due process re-
quirements. >
D. The effect of unconstitutionality.
Obviously, because of the number of offenses charged
in the past under this Article, a ruling by this Court that
Article 134 is unconstitutional will] have a sweeping effect on
the military justice system.'* However, the military should
be ready. The first warning came from this Court in
14. We will not address in detail the difficult problem of retro-
activity or prospectivity. However, a sensible solution to the “flood-
gate of litigation” problem would be that adopted in Levy that applica-
ce ee
6
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be fet pe ee ee eG
breadth of Article 134 make it,subject to abusive applica-
( ;
26
O’Callahan v. Parker, 395 U.S. 258, 266 (1969) when
Justice Douglas asked, in dictum, whether the “prejudicial
conduct” provision in Article 134 satisfied civilian courts’
standards of vagueness. Later in Levy v. Parker, 396
U.S. 1204-05 (1969) Justice Douglas, acting on appellee
Levy’s application for release pending appeal, noted that
the Court in O’Callahan had “reserved decision on whether
Article 134 satisfies the standards of vagueness required
by due process. Then, in a speech presented in 1972, the
Chief Judge of the U.S. Army Court of Military Review, a
former Judge Advocate General, Major General Kenneth
J. Hodson, recommended discarding Article 134 because
its use could not be defended by the military in a modern
society. Moreover, he predicted that this Article could not
withstand the attack now made in this Court. Hodson,
Perspective, the Manual for Courts-Martial, 1984, 47 Mil.
L. Rev. 1 (1972).
General Hodson is not alone among respected authori-
ties suggesting the abolition of the general article. In the
Annual Report of the U.S. Court of Military Appeals and
the Judge Advocates General of the Armed Forces and the
General Counsel of the Department of Transportation Pur-
suant to the Uniform Code of Military Justice for the
period January 1, 1972 to December 31, 1972, it is acknowl-
edged that “despite almost 200 years of constitutional his-
tory and precedent, [there is] no assurance that the Article
will withstand further appellate examination. There is
therefore a need for early congressional consideration of the
problem.” (Jd. at 2). This sense of urgency is also re
flected in the Report of the Department of Defense Task
Force on the Administration of Military Justice in the
Armed Forces (1972), which recommends codification of
offenses currently tried under the first two clauses of
Article 134 and expresses concern that the vagueness and
27
tion (Volume II at 79). See also Gaynor, Prejudicial and
Discreditable Military Conduct: A Critical Appraisal of the
General Article, 22 Hastings L.J. 259 (1971). But see
Wiener, Are the General Military Articles Unconstitution-
ally Vague? 54 A.B.A.J. 357 (1968).
When the views of those who daily administer military
justice are considered, it becomes clear that there is no
justification for not codifying offenses now charged under
Article 134 in order to provide fair warning, an ascertain-
able standard of enforcement, and statutes sufficiently
narrow that they do not impinge upon constitutionally
protected conduct or speech. We agree with the conclusion
of Judge Aldisert in the Levy case:
. + [T]here exist no countervailing military con-
siderations which justify the twisting of established
standards of due process in order to hold inviolate
these articles, so clearly repugnant under current
constitutional values. 478 F.2d at 796.
For these reasons, Article 134 should be held uncon-
stitionally vague and overbroad.
POINT II
Article 133 is unconstitutional on its face.
Article 133 proscribes “conduct unbecoming an officer
and a gentleman.” We submit that on its face Article 133
suffers from the same unconstitutional vagueness and over-
breadth as Article 184. Indeed, much of the discussion of
the standards concerning Article 134 is pertinent here, and
the arguments concerning fair warning, potential for arbi-
trary enforcement and overbreadth need not be repeated.
RES EE ET I TORE
| 28
Even assuming that Congress may validly legislate
3 against conduct which is “unbecoming”, the question in-
: herent on the face of Article 133 is what sort of conduct is
unbecoming to an officer and a gentleman? Since the statu-
tory language gives no answer we submit that ipso facto it
fails to meet constitutional notice requirements. See Lan-
zetta v. New Jersey, supra. Nonetheless, appellant urges
this Court to consider the content of the statute “by refer-
ence to the well-settled traditions and customs of the mili-
tary.” (Appellant’s Brief in Levy at 40.) The argument
runs that “to military officers, [Article 133] sufficienily
specifies what conduct it, prohibits to satisfy the constitu-
tional requirement that criminal statutes not be unduly
vague.” Jd. This argument apparently is designed to meet .
the objection that those who administer the Article, as well
as those who may be ensnared by its provisions, have a
special degree of knowledge which fills the void left by the
statute on its face. Where, then, does this knowledge come
from?
The Manual offers little enlightenment. If an officer
turns to paragraph 212 to determine whether to charge a
fellow officer under the Article (or whether to engage in
certain conduct himself) he is advised that:
AOA! hak a ME NOT OM dp Lee: pal pees do yen mS
... Not everyone is or can be expected to meet ideal
moral standards, but there is a limit of tolerance
below which the individual standards of an officer,
cadet or midshipman cannot fall without seriously
compromising his standing as an officer, cadet or
midshipman or his character as a gentleman. This
article contemplates conduct by a commissioned of-
ficer, cadet, or midshipman which, taking all the cir-
cumstances into consideration, is thus compromising.
DAS catalan NRT RIANA einen ea EC
Paw ee
If he desires further specificity about what will “com-
promise” either his official or personal moral standing, the
officer is advised only that
—<-
There are certain moral attributes common to the
ideal officer and the perfect gentleman, a lack of
which is indicated by acts of dishonesty or unfair
dealing, indecency or indecorum, or of lawlessness,
injustice or cruelty.
Finally, a catch-all sentence advises caution because
the Article
includes acts made punishable by any other article
provided these acts amount to conduct unbecoming
an officer.
‘The Manual lists eight “instances” of violation, but ob-
viously this list is merely illustrative, for the statute has
been used to sweep many different types of conduct within
its grasp.'5
Being thus unsatisfied, the officer must then consider
prior interpretations by military courts. Of course, as
noted above with respect to Article 134, that inquiry will
also be unsatisfactory because the statute may be used to
proscribe conduct which has not theretofore been the sub-
ject of a reported decision.
Finally, the officer is urged to consider the “customs and
traditions” of the military service, perhaps by reference to
commercial publications such as The Officer's Guide.
Resort to publications of this sort, and to an amorphous
body of tradition places the officer in no better position
than he was at the beginning of his inquiry: he is still
unable to find a definition of what type of conduct is “un-
becoming” to an “officer and a gentleman”; he is still
unable to find a definition of what is a “gentleman.” To
urge reference to the moral codes of the past is to fail to
15. See generally, Note, Taps for the Real Catch-22, note 3 supra,
at 1526-27.
16. Reynolds, The Officer's Guide (1969), which has been in
copyrighted publication since 1930.
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30
appreciate the plain fact that the armed services of the
1970s are not the armed services of the 1870s. Even*if
moral standards may be the subject of Congressional con-
trol, the standards must be updated to conform to the modes
of the times. On this regard we note a seemingly self-
defeating argument by appellant in Levy:
What is involved here is a system of values which has
been part of the military experience for centuries.
While these values are communicated to officers
through military customs and usage, by example,
they cannot be exhaustively codified without bring-
ing the standard of conduct expected of officers
“down to the requirements of a criminal code.”
(Appellant’s Brief in Levy at 43).
That position demonstrates the very constitutional prob-
lem inherent in Article 133. It is part of a criminal code
and yet purports to punish officers for failing to meet
standards which somehow come to his knowledge by “ex-
ample” from his predecessors through “military expe
rience.” While that approach may be satisfactory for
exacting administrative penalties for improprieties (cf.
Letter Carriers, supra), it is hardly sufficient to meet the
requirements of specificity for conviction by court-martial,
a federal criminal court. Contrary to appellant’s position
in Levy, the military services will not be precluded from
holding officers to traditional high standards of conduct if
Article 133 is struck down as vague (Brief at 43). Rather,
the prohibition will be against imposing criminal penalties
without .sufficient notice of an ascertainable standard of
criminal culpability. Indeed, if the traditions and customs
of the service are as well-defined and relevant today as
appellant claims (Brief in Levy at 44), the military should
have little difficulty in drafting regulations or statutes
which meet constitutional requirements of specificity.
‘aici te m1
As with the general article, Article 133 “leaves judges
and jurors free to decide, without any legally fixed stan-
dard, what is prohibited and what is not in each particular
ease.” Giaccio Vv. Pennsylvania, supra, 382 U.S. at 402-
03; Grayned v. City of Rockford, supra. Here the court
members are instructed that as an element of proof they
must determine that “under the circumstances the accused’s
conduct was unbecoming an officer and a gentleman.” Fur-
ther, the officer jurors are advised that “ ‘unbecoming,’ as
used in this specification refers to behavior which is not
merely inappropriate or unsuitable, as being opposed to
good taste or propriety or not consonant with usage, but
morally unbefitting and unworthy.” Paragraph 4-122,
Department of the Army Pamphlet 27-9, supra. (Emphasis
added.) See Manual paragraph 212. Thus, each court-
martial member is left to his own devices to determine what
“morally unbefitting and unworthy” conduct is. No fur-
ther standard is offered in the jury instructions, which un-
doubtedly result in the type of ad hoc adjudication of guilt
which this Court has found constitutionally unacceptable.
Gooding v. Wilson, Papachristou v. City of Jacksonville,
and Lanzetta v. New Jersey, supra.
An additional vice in the use of Article 133 in criminal
prosecutions is that it is designed to be used as punishment
for “acts made punishable by any other article, provided
these acts amount to conduct unbecoming an officer and a
gentleman.” Manual paragraph 212. For example, in the
Levy case, appellee was charged with violations of Article
133 and 134 for what was essentially the same conduct.
Another example is found in paragraph 212 of the Manual:
“a commissioned officer who steals property violates both
this article and article 121.” Is there a rational reason
for this multiplication of charges? Presumably “ease of
conviction” is the answer, because if the prosecution case
suffers a failure of proof it might nonetheless establish
=
ETP Bia Oh EEL ELE LOLOL E CAPELLA, LEE LLIN, ERNE CLEC RGR tot pe
TORS nhs acted ts
oe BOER N PRAEGER an
32
“conduct unbecoming” on facts which might not rise to the
level necessary to establish commission of the substantive
crime charged. However, “ease of conviction” is an un-
acceptable substitute for specificity in a criminal statute.
See Note, Taps for the Real Catch-22, note 3 supra, at 1535,
This potential for unreasonable multiplication of charges
against an officer offends not only constitutional require
ments of fairness; it seems as well to violate the proviggons
of Paragraph 26b of the Manual forbidding such pleading.
Finally, Article 133 suffers from the same facial over-
breadth as does Article 134. Appellant’s position (Brief in
Levy ‘at 44-47) notwithstanding, the constitutionality of
the statute does not turn on whether Captain Levy’s lan-
guage may not have been protected speech under the cir-
cumstances. Rather, this Court’s concern should be that
the statute itself contains no real boundaries, and may very
well cover conduct or speech which is protected by the First
Amendment. See Coates v. City of Cincinnati, supra. In-
-deed, the very fact that it has been used in Levy as a sword
against even unprotected conduct demonstrates its capa-
bility for use against speech that will ultimately be declared
protected. See United States v. Howe, supra. The “chill-
ing effect” here is obvious. If the military wishes to set
boundaries of speech for its officers it should do so within
constitutional limits to avoid encroachment into protected
areas. This strict requirement in the First Amendment
area is not met by the terms or application of Article 133.
Gooding v. Wilson, supra.
We fully recognize the necessity for a high standard
of conduct on the part of officers in our armed forces. In-
deed, their example and leadership are often the means
by which lives are saved in combat, and it is only through
an effective officer corps that a military institution can
function effectively. However, this valid policy require
33
ment must be accomplished by communicating to our offi-
cers in clear statutory language what standards are ex-
pected. This is particularly so if officers are to be sub-
jected to criminal penalties and a federal conviction for
failing to comply with the standards. Thus, as a matter
of sound judicial policy, Article 133 must be held violative
of constitutional due process because on its face it is vague .
and overbroad.
CONCLUSION
For the foregoing reasons, the Association of the
Bar of the City of New York, Amicus Curiae, respect-
fully urges this Court to affirm the judgment of the Court
of Appeals in Avrech, and at least so much of the judg-
ment of the Court of Appeals in Levy that holds Articles
133 and 134 unconstitutional.
Respectfully submitted,
THOMAS M. COMERFORD
1301 Avenue of the Americas
New York, N. Y. 10019
Davin L. Fox
\ 280 Park Avenue
New York, N. Y. 10017
MARVIN M. KARPATKIN
1345 Avenue of the Americas
New York, N. Y. 10019
LEONARD P. NOVELLO
1 Chase Manhattan Plaza
New York, N. Y. 10005
Attorneys for the Association
of the Bar of the City of New York
Dated: . New York, New York
February 1974
a Grae teen ED sare
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