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

f r o m U n i t e d S t a t e s v . M u l d r o w , 4 8 C . M . R . 6 3 , 6 5 n . 1
(A.F.C.M.R. 1973).
e. Maximum punishment. The maximum punishment for loitering
or wrongfully sitting on post by a sentinel or lookout was increased
because of the potentially serious consequences of such
misconduct. Cf. Article 113.
105. Article 134— (Soliciting another to commit
an offense)
b. Elements. See United States v. Mitchell, 15 M.J. 214 (C.M.A.
1983); the Analysis, paragraph 6. See also paragraph 101.
c. Explanation. See the Analysis, paragraph 6.
d. Lesser included offenses. See United States v. Benton, 7 M.J.
606 (N.C.M.R. 1979), pet. denied, 8 M.J. 227 (1980).
1990 Amendment: Listing of “Article 134 — Requesting another
to commit an offense, wrongful communication of lang
u a g e ” a s a l e s s e r i n c l u d e d o f f e n s e o f s o l i c i t i n g a n o t h e r t o
commit an offense was deleted in conjunction with the deletion of
such a request as a substantive offense. See United States v.
Taylor, 23 M.J. 314 (C.M.A. 1987); and, the Analysis, paragraph
101.
e. Maximum punishment. See United States v. Benton, supra.
February 1986 Amendment: The Committee considered maximum
imprisonment for 5 years inappropriate for the offense of
solicitation to commit espionage under new Article 106a. A maximum
punishment authorizing imprisonment for life is more consistent
with the serious nature of the offense of espionage.
106. Article 134— (Stolen property: knowingly
receiving, buying, concealing)
c. Explanation. This paragraph is based on paragraph 213 f(14)
of MCM, 1969 (Rev.). and United States v. Cartwright, 13 M.J.
174 (C.M.A. 1982); United States v. Ford, 12 U.S.C.M.A. 3, 30
C.M.R. 3 (1960). See United States v. Rokoski, 30 C.M.R. 433
(A.B.R. 1960) concerning knowledge. See also United States v.
Bonavita, 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972), concerning
this offense in general.
e. Maximum punishment. The maximum punishments have been
revised. Instead of three levels (less than $50, $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).
107. Article 134— (Straggling)
c. Explanation. This paragraph is new and is based on Military
J u d g e s ’ B e n c h b o o k , D A P A M 2 7 – 9 , p a r a g r a p h 3 – 1 8 0 ( M a y
1982).
ANALYSIS OF PUNITIVE ARTICLES
Pun. Art. 134
108. Article 134— (Testify: wrongful refusal)
c. Explanation. This paragraph is new and is based on United
States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). See
also United States v. Quarles, 50 C.M.R. 514 (N.C.M.R. 1975).
f . S a m p l e s p e c i f i c a t i o n . “ D u l y a p p o i n t e d ” w h i c h a p p e a r e d i n
front of the words “board of officers” in sample specification no.
174, Appendix 6 of MCM, 1969 (Rev.) was deleted. This is
because all of the bodies under this paragraph must be properly
convened or appointed. Summary courts-martial were expressly
added to the sample specification to make clear that this offense
may occur before a summary court-martial.
109. Article 134— (Threat or hoax: bomb)
Introduction. This offense is new to the Manual for Courts-
Martial. It is based generally on 18 U.S.C. § 844(e) and on Military
Judges’ Benchbook, DA PAM 27–9, paragraph 3–189 (May
1982). Bomb hoax has been recognized as an offense under
clause 1 of Article 134. United States v. Mayo , 12 M.J. 286
(C.M.R. 1982).
c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n M i l i t a r y J u d g e s ’
Benchbook, supra at paragraph 3–189.
e. Maximum punishment. The maximum punishment is based on
18 U.S.C. § 844(e).
110. Article 134— (Threat, communicating)
c. Explanation. This paragraph is taken from paragraph 213 f(10)
of MCM, 1969 (Rev.). See also United States v. Gilluly, 13
U.S.C.M.A. 458, 32 C.M.R. 458 (1963); United States v. Frayer,
11 U.S.C.M.A. 600, 29 C.M.R. 416 (1960).
111. Article 134— (Unlawful entry)
c. Explanation. This paragraph is new and is based on United
States v. Breen, 15 U.S.C.M.A. 658, 36 C.M.R. 156 (1966);
United States v. Gillin, 8 U.S.C.M.A. 669, 25 C.M.R. 173 (1958);
United States v. Love, 4 U.S.C.M.A. 260, 15 C.M.R. 260 (1954).
See also United States v. Wickersham, 14 M.J. 404 (C.M.A.
1983) (storage area); United States v. Taylor, 12 U.S.C.M.A. 44,
3 0 C . M . R . 4 4 ( 1 9 6 0 ) ( a i r c r a f t ) ; U n i t e d S t a t e s v . S u t t o n , 2 1
U.S.C.M.A. 344, 45 C.M.R. 118 (1972) (tracked vehicle); United
States v. Selke, 4 M.J. 293 (C.M.A. 1978) (summary disposition)
(Cook, J., dissenting).
112. Article 134— (Weapon: concealed, carrying)
c. Explanation. This paragraph is new and is based on United
States v. Tobin, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968);
United States v. Bluel, 10 U.S.C.M.A. 67, 27 C.M.R. 141 (1958);
United States v. Thompson, 3 U.S.C.M.A. 620, 14 C.M.R. 38
(1954). Subsection (3) is based on United States v. Bishop, 2 M.J.
741 (A.F.C.M.R. 1977), pet. denied, 3 M.J. 184 (1977).
113. Article 134— (Wearing unauthorized
insignia, decoration, badge, ribbon, device, or
lapel button).
e. Maximum punishment. The maximum punishment has been
increased to include a bad-conduct discharge because this offense
often involves deception.
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