What to Know About Obeying an Unlawful Military Order
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Presumption of Lawfulness
Orders from superiors requiring the performance of military duties are presumed to be lawful. MCM, pt. IV, 14c(2)(a)(i); United States v. McDaniels , 50 M.J. 407 (C.A.A.F. 1999) (order to not drive a personal vehicle after diagnosis of narcolepsy); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses); United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (order requiring a soldier to wear United Nations blue beret and insignia).When Can a Soldier Disobey an Order?
Disobedience to Military Orders
A superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril. To sustain the presumption, the order must relate to military duty. It must not conflict with the statutory or constitutional rights of the person receiving the order. Finally, it must be a specific mandate to do or not to do a specific act. In sum, an order is presumed lawful if it has a valid military purpose and is a clear, precise, narrowly drawn mandate. United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003). The dictates of a person’s conscience, religion, or personal philosophy cannot excuse disobedience. United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1973).Orders Must Have a Valid Military Purpose
The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission or safeguard or promote the morale, discipline, and usefulness of unit members and directly with the maintenance of good order in the armed forces. MCM, pt. IV, 14c(2)(a)(iii). The order can affect otherwise private activity. United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive a personal vehicle after diagnosis of narcolepsy); United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999) (no-contact order issued by military police had a valid military purpose of maintaining good order and discipline in the military community and of protecting the alleged victim while during the investigation); United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year- old service member to terminate his romantic relationship with 14-year-old girl had a valid military purpose); United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions unrelated to the military did not have a valid military purpose). An order that has a private end for its sole object is unlawful, but an order that benefits the command and serves individuals is lawful. United States v. Robinson, 20 C.M.R. 63 (C.M.A. 1955) (use of enlisted personnel in Officers’ Open Mess at Fort McNair). Punishment. Orders extending punishments beyond those lawfully imposed are illegal. The United States v. McCoy, 30 C.M.R. 68 (C.M.A. 1960) (to continue extra duty after punishment imposed under Article 15 already completed). “Extra training” must be oriented to improving the soldier’s performance of military duties. Such corrective measures assume the nature of training or instruction, not punishment. MCM, pt. I, 1g; AR 600-20, 4-6b (11 Feb 2009); see the United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987) (requiring accused to live in a pup tent for three weeks between the hours of 2200 and 0400 was unlawful punishment).Overly Broad Limitation on Personal Right
An order that is “arbitrary and capricious, overly broad in scope, or to impose an unjust limitation on a personal right” is not lawful. United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report, while on leave, financial conditions unrelated to the military was not lawful); United States v. Spencer, 29 M.J. 740 (A.F.C.M.R. 1989) (order to turn over all civilian medical records to the military clinic by specific date was unlawful because it was broader and more restrictive of private rights and personal affairs than required by military needs and provided for by service regulation); United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002) (no social contact order with female in unit with whom accused had an adulterous relationship not overbroad).Marriage
Regulations reasonably restricting marriages of foreign-based service personnel to local nationals are legal. United States v. Wheeler, 30 C.M.R. 387 (C.M.A. 1961) (“a military commander may, at least in foreign areas, impose reasonable restrictions on the right of military personnel of his command to marry”); United States v. Nation, 26 C.M.R. 504 (C.M.A. 1958) (six-month waiting period was unreasonable and arbitrary restraint on the personal right to marry).“Safe sex”
Safe sex order to servicemember infected with H.I.V. is lawful. United States v.Dumford, 30 M.J. 137 (C.M.A. 1990); United States v. Womack, 29 M.J. 88 (C.M.A. 1989). A service member who violates the terms of a no-contact order is subject to punishment under either Article 90 or Article 92, without the necessity of proof that the contact was undertaken for an improper purpose. Public policy supports a strict reading of a no-contact order. A military commander who has a legitimate interest in deterring contact between a service member and another person is not required to sort through every contact to determine, after the fact, whether there was a nefarious purpose. United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).- Personal relationships and contacts. United States v. Hill , 49 M.J. 242 (C.A.A.F.1999) (order to have no contact with alleged victim lawful); United States v. Padgett , 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic relationship with 14-year-old girl lawful); United States v. Nieves , 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses, during an investigation, was lawful); United States v. Aycock , 35 C.M.R. 130 (C.M.A. 1964) (order prohibiting accused from contacting witnesses concerning the charges was unlawful because it interfered with right to prepare a defense); United States v. Wysong , 26 C.M.R. 29 (C.M.A. 1958) (order “not to talk to or speak with any of the men in the company concerned with this investigation except in line of duty” was so broad in nature and all- inclusive in scope that it was illegal); United States v. Mann , 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted member with whom the accused allegedly fraternized, which indicated that accused’s counsel had unrestricted access, was lawful); United States v. Button , 31 M.J. 897 (A.F.C.M.R. 1990) (order not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 139 (C.M.A. 1992); United States v. Hawkins , 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no contact with alleged victims and witness, unless by the area defense counsel, was lawful); United States v. Wine , 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged wife lawful); United States v. Moore , 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with the civilian workers” in the galley was lawful and not over broad when given after the accused violated a policy limiting interaction between civilian employees and servicemembers).