The issue before the CAAF in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) was whether after disapproving a finding of guilt to a resisting apprehension charge, can an appellate court affirm a conviction for a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles? The Court concluded that “Article 134, UCMJ, is not an offense necessarily included under Article 79, UCMJ, of the enumerated articles” and an appellate court may not affirm an Article 134 offense under Article 59, UCMJ, as a lesser included offense of an enumerated offense (internal quotations omitted). The case expressly overrules the principle from Foster that Clauses 1 and 2 of Art. 134 are per se included in every enumerated offense. The Court framed the question as whether a simple disorder or discredit under either Clauses 1 or 2 are lesser included offenses of Art. 95. Under Art. 79, an accused may be found guilty of an offense necessarily included in the offense charged. According to the explanation of Art. 79, “[a] lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged.” See 2008 MCM, pt. IV, ¶ 3b(1). Under both Schmuck and Weymouth, an offense is necessarily included in another offense “when the elements of the lesser offense are a subset of the elements of the charged offense.” Citing Medina, the CAAF reiterated that “[a]n accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged.” As per Medina, the due process principle of fair notice requires that the accused know to what offense and under what legal theory he will be convicted and a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged. The CAAF ruled that offenses under Clauses 1 and 2 of Art. 134 contain an element not found in Art. 95: “that under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces.” Hence, “Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ.” In a footnote, the CAAF reminds practitioners that if the offense is not necessarily included in another offense, the Government may satisfy the notice requirement when the charge sheet “make[s] the accused aware of any alternative theory of guilt.” In this case, the charge sheet did not reference the elements of prejudice to good order and discipline or service discrediting conduct. The finding was set aside and the charge and specification were dismissed.
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