Whether Clause 2 of Article 134, UCMJ, is unconstitutional

Since 1775, the United States military has been subject to some version of today’s Article 134, Uniform Code of Military Justice (UCMJ), known as the “general article.” 10 U.S.C. § 934 . However, before the 20th Century, the general article proscribed only two types of conduct: (1) conduct that is prejudicial to good order and discipline ; and (2) conduct otherwise unlawful under federal law. In 1916, Congress proscribed a new type of offense under the general article: conduct of a nature to bring discredit upon the armed forces . This is known as “Clause 2 .” For decades, military courts required the Government prove a “direct and palpable” connection between the charged conduct and the military mission for Article 134 offenses. It is for this reason that th is Court upheld Article 134 as constitutional in Parker v. Levy , 417 U.S. 733 (1974) . But, in the years since, military courts have moved away from the direct and palpable connection requirement for Clause 2 offenses. Now, the Government need not prove any fact to satisfy the service discrediting element of the general article. As petitioners’ cases represent, this results in convictions for conduct which the Government did not —and cannot —prove discredited the service. The question presented is: Whether Clause 2 of Article 134, UCMJ, is unconstitutional.