HAR §7-9-1. General article; generally

(a) Section 124A-155, HRS, makes punishable all acts not specifically prescribed in any other section of chapter 124A, HRS, when they amount to the disorders or neglects to the prejudice of good order and discipline in the state military forces as specified and defined in this chapter. If conduct of this nature is specifically made punishable by another section of chapter 124A, HRS, it shall be charged as a violation of that section. If the conduct is not specifically made punishable by another section of chapter 124A, HRS, it shall be charged as a violation of section 124A-155, HRS, and this chapter. The specifications alleging a violation of section 124A-155, HRS, need not expressly allege that the conduct was a disorder or neglect to the prejudice of good order and discipline in the state military forces. Under a specification alleging a violation of section 124A-155, HRS, a finding of guilty may properly be returned if the court-martial is convinced beyond a reasonable doubt that the acts of the accused constituted a disorder or neglect to the prejudice of good order and discipline in the state military forces. (b) The disorders and neglects punishable under section 124A-155, HRS, include those acts or omissions to the prejudice and good order and discipline not specifically mentioned in other sections. "To the prejudice of good order and discipline" include only acts directly prejudicial to good order and discipline and not acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the state military forces could be regarded as prejudicial in some indirect or remote sense. Section 124A-155, HRS, shall not apply to those distant effects, and shall be confined to cases in which the prejudice is reasonably direct and palpable. (c) Instances of prejudicial disorder and neglects in the case of officers may include: (1) Rendering the person's self unfit for duty by excessive use of intoxicants or drugs; (2) Drunkenness; or (3) Allowing a member of the officer's command to go on duty knowing the member to be drunk. (d) Instances of prejudicial disorders and neglects in the case of enlisted persons may include: (1) Appearing in improper uniform; (2) Wrongfully abusive use of military vehicles; (3) Careless discharge of firearms; or (4) Impersonating an officer. (e) A breach of a custom of the service may result in a violation of section 124A-155, HRS. In its legal sense the word "custom" imports something more than a method of procedure or a mode of conduct or behavior which is merely of frequent or unusual occurrence. Custom arises out of long established practices which by common consent have attained the force of law in the military or other community Hawaii Administrative Rules: Title 7, Dept. of Defense; Subtitle 1, Military Justice; Chapter 9: General Article State of Hawaii Department of Defense: Administrative Services Office [http://www.dod.state.hi.us/aso] (Page 2 of 23) affected by them. There can be no such thing as a custom that is contrary to existing law or rule. A custom which has not been adopted by existing statute or rule ceases to exist when its observance has been long abandoned. Many customs of the service are now set forth in regulations of the various armed forces. Violations of these customs shall be charged under section 124A-127, HRS. (f) The proof required for conviction of an offense under section 124A-155, HRS, depend upon the nature of the misconduct charged. One element of proof common to every case tried under section 124A-155, HRS, is that the conduct of the accused, under the circumstances, was to the prejudice of good order and discipline in the state military forces. This element is common to all of the offenses charged under section 124A-155, HRS, and shall be included in instructions as to the elements of these offenses, in addition to their specific elements. (g) In addition to the acts or ommissions proscribed in this chapter, a person subject to chapter 124A, HRS shall be punished as a court-martial direct for acts of omissions which are, under the circumstances, prejudicial of good order and discipline in the state military forces. (h) The conduct specified in this chapter constitute a violation of section 124A-155, HRS, if it is under the circumstances prejudicial of good order and discipline in the armed forces and shall be punishable as a court-martial may direct. This listing of specific acts of conduct is not exclusive and is not intznded to limit the application of section 124A-155, HRS, to other disorders and neglects to the prejudice of good order and discipline in the state military forces. The failure to follow a model specification shall not constitute grounds for dismissal of a charge. [Eff: FEB 11 1985] (Auth: HRS §§124A-155, 124A-171) (Imp: HRS §124A-155) BACK TO TOP