2008 edition - Fort Sam Houston - U.S. Army

Pun. Art. 131 APPENDIX 23
1746 of title 28 United States Code, which was also enacted as
part of Pub.L. No. 94–550.
Text of section 1746 of title 28, United States Code
§ 1746. Unsworn declarations under penalty of perjury.
Whenever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law, any
matter is required or permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making
the same (other than a deposition, or an oath of office, or an oath
required to be taken before a specified official other than a notary
public), such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify,
verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
Executed on (date).
(Signature)”
(2) If executed within the United States, its territories, possessions,
or commonwealths: “I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature)”
If someone signs a statement under penalty of perjury outside a
judicial proceeding or course of justice, and Article 107 (false
official statement) is not applicable, it may be possible to use
Article 134 (clause 3) (see paragraph 60) to charge a violation of
18 U.S.C. § 1621.
Text of section 1621 of title 18, United States Code
§ 1621. Perjury generally
Whoever—
(1) having taken an oath before a competent tribunal, officer,
or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material which he
does not believe to be true; or
(2) in any declaration, certificate, verification, or statement
under penalty of perjury as permitted under section 1746 of title
28, United States Code, willfully subscribes as true any material
matter which he does not believe to be true; is guilty of perjury
and shall, except or otherwise expressly provided by law, be fined
not more than $2,000 or imprisoned not more than five years, or
both. This section is applicable whether the statement or subscription
is made within or without the United States.
2004 Amendment: Subsection (2)(b) was amended to comply
with United States v. Gaudin, 515 U.S. 506 (1995), which held
that when materiality is a statutory element of an offense, it must
be submitted to the jury for decision. Materiality cannot be removed
from the members’ consideration by an interlocutory ruling
that a statement is material. See Gaudin, 515 U.S. at 521 (“It
is commonplace for the same mixed question of law and fact to
be assigned to the court for one purpose, and to the jury for
another.”); and at 517 (“The prosecution’s failure to provide minimal
evidence of materiality, like its failure to provide minimal
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evidence of any other element, of course raises a question of
’law’ that warrants dismissal.”).
d. Lesser included offenses.
1991 Amendment: Subparagraph d was amended by deleting
false swearing as a lesser included offense of perjury. See United
States v. Smith, 26 C.M.R. 16 (C.M.A. 1958); MCM 1984, Part
IV, para. 79c(1). Although closely related to perjury, the offense
of false swearing may be charged separately.
58. Article 132— Frauds against the United States
c. Explanation. This paragraph is based on paragraph 211 of
MCM, 1969 (Rev.).
e. Maximum punishment. The maximum punishments have been
revised. Instead of three levels ($50 or less, $50 to $100, and over
$100) only two are used. This is simpler and conforms more
closely to the division between felony and misdemeanor penalties
contingent on value in property offenses in civilian jurisdictions.
2002 Amendment: The monetary amount affecting the maximum
punishments has been revised from $100 to $500 to account
for inflation. The last change was in 1969 raising the amount to
$100. The value has also been readjusted to realign it more
closely with the division between felony and misdemeanor penalties
in civilian jurisdictions. See generally American Law Institute,
Model Penal Code and Commentaries Sec. 223.1 (1980)
(suggesting $500 as the value).
59. Article 133— Conduct unbecoming an officer
and gentleman
c. Explanation. This paragraph is based on paragraph 212 of
MCM, 1969 (Rev.). See Parker v. Levy, 417 U.S. 733 (1974)
(constitutionality of Article 133). For a discussion of Article 133,
see United States v. Giordano, 15 U.S.C.M.A. 163, 35 C.M.R.
135 (1964); Nelson, Conduct Expected of an Officer and a Gentleman:
Ambiguity, 12 A.F.JAG L.Rev. 124 (Spring 1970). As to
subparagraph (1), see 1 U.S.C. § 1; Pub.L. No. 94–106, § 803, 89
Stat. 537–38 (Oct. 7, 1975).
e. Maximum punishment. A maximum punishment is established
for the first time in order to provide guidance and uniformity for
Article 133 offenses.
f. Sample specifications. Some sample specifications for Article
133 in MCM, 1969 (Rev.) were deleted solely to economize on
space.
60. Article 134— General article
Introduction. Paragraph 60 introduces the General Article.
Paragraph 61–113 describe and list the maximum punishments for
many offenses under Article 134. These paragraphs are not exclusive.
See generally Parker v. Levy, 417 U.S. 733 (1974); United
States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964).
E x c e p t a s o t h e r w i s e n o t e d i n t h e A n a l y s e s o f p a r a g r a p h s
61–113, the offenses listed below are based on paragraph 127 c
(Table of Maximum Punishments), paragraph 213 f, and Appendix
6 (sample specifications 126–187) of MCM, 1969 (Rev.).
E i g h t o f f e n s e s p r e v i o u s l y l i s t e d ( a l l o w i n g p r i s o n e r t o d o u n -
authorized acts, criminal libel, criminal nuisance, parole violation,
statutory perjury, transporting stolen vehicle in interstate commerce,
unclean accoutrements, and unclean uniform) are not list
e d h e r e b e c a u s e t h e y o c c u r s o i n f r e q u e n t l y o r b e c a u s e t h e