United States v. Scott

¶1(concurring):

¶2The Government, in oral argument, urged this Court to hold that charges against an officer under Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933, are, in every circumstance, within the subject-matter jurisdiction of courts-martial. The Government contends that because it must always prove that the misconduct alleged was “unbecoming an officer and a gentleman,” proof of the offense satisfies the subject-matter jurisdiction required by Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), and O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). I agree with the Government’s contention, and I would urge a decision on that ground alone if there were no other basis to find jurisdiction. See my separate opinion in United States v. Johanns, 20 M.J. 155, 161 (C.M.A.1985); see also Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).

¶3In essence, Article 133 is, in every sense, an offense which is unique to the military community and is of special significance therein. It focuses on the fact that an *351accused is “an officer” and that his conduct has brought discredit upon all officers and, thus, upon the honor, integrity, and good character inherent in this important, unique status.1 There is no question in my mind that we must zealously preserve and protect the status of an officer.

¶4No one has spoken more eloquently about the concept of being “an officer and a gentleman” than General Douglas MacArthur did when he addressed the Corps of Cadets at West Point on May 12, 1962. He stated:

Duty, honor, country: Those three hallowed words reverently dictate what you ought to be, what you can be, what you will be. They are your rallying point to build courage when courage seems to fail, to regain faith when there seems to be little cause for faith, to create hope when hope becomes forlorn.

Unhappily, I possess neither that eloquence of diction, that poetry of imagination, nor that brilliance of metaphor to tell you all that they mean.

The unbelievers will say they are but words, but a slogan, but a flamboyant phrase. Every pedant, every demagogue, every cynic, every hypocrite, every troublemaker, and, I am sorry to say, some others of an entirely different character, will try to downgrade them even to the extent of mockery and ridicule.

But these are some of the things they do. They build your basic character. They mold you for your future roles as the custodians of the nation’s defense. They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid.

They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm, but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future, yet never neglect the past; to be serious, yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength.

They give you a temperate will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease.

They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life. They teach you in this way to be an officer and a gentleman.

¶5A Soldier Speaks, Public Papers and Speeches of General of the Army Douglas MacArthur 353-54 (Frederick A. Praeger, Publishers, 1965).

¶6If we are willing to permit this concept of “an officer and a gentleman” to erode, even ever so slightly, then next comes corruption, tyranny, and even the possibility of a military coup. Too much time has been spent and too many lives have been lost defending this concept to let it die now by judicial edict.

¶7I am comforted by the fact that the Congress of the United States felt so strongly about the concept of what “an officer and a gentleman” is that it enacted not only Article 133, 10 U.S.C. § 933, but Article 4, 10 U.S.C. § 804, as well.2 Article 4 of the Uniform Code recognizes an officer’s right to be tried by court-martial before he can be dismissed from the service by the President. This is very convincing *352evidence that Congress recognized the unique status of an officer.

¶8Although I agree with the excellent analysis contained in the principal opinion, I do not want to lose sight of the historical and fundamental principle of what “an officer and a gentleman” is. I would affirm on this basis alone.

¶9I also write to make it clear that I agree with Judge Fletcher’s analysis of multiplicity of substantive charges and charges under Article 133 as expressed in United States v. Timberlake, 18 M.J. 371 (C.M.A.1984), and I do not agree with Chief Judge Everett’s concurring opinion therein, id. at 377. See also United States v. Rodriquez, 18 M.J. 363 (C.M.A.1984). As I interpret Chief Judge Everett’s position, he would abolish Article 133 where the proof supports a conviction under a punitive article. I believe, however, that Article 133 is a separate and distinct offense, and I would find punitive misconduct to be lesser-ineluded in an Article 133 offense only when a punitive article is alleged as the misconduct giving rise to the Article 133 offense.