Disobedience: Personal order. UCMJ Art. 90(2) & 91(2)

test1 016 (Side 16)The Order

  1. The order must be directed to the accused specifically. It does not include violationsof regulations, standing orders, or routine duties. MCM, pt. IV, 14c(2)(b); United States v. Byers , 40 M.J. 321 (C.M.A. 1994) (order revoking driving privileges signed by JAG was a routine administrative sanction for traffic offenses and was not a personal order by the post commander); United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued automatically upon drunk driving arrest was not sufficient for purposes of Art. 90, but did support a conviction under Art. 92); United States v. Gussen , 33 M.J. 736 (A.C.M.R. 1991) (evidence that accused disobeyed an order issued by brigade commander to entire brigade, but relayed to the accused through NCOs, only supports finding of violation of orders in violation of Article 92 and not violation of a superior’s personal order); United States v. Selman , 28 M.J. 627 (A.F.C.M.R. 1989) (letter to all minimum security prisoners setting forth restrictions was not a personal order to the accused).
  2. Form of Order. As long as understandable, the form of the order and the method of transmittal are immaterial. MCM, pt. IV, 14.c.(2)(c); United States v. McLaughlin , 14 M.J. 908 (N.M.C.M.R. 1982) (use of the word “please” does not negate the order).
  3. Scope of Order. In order to sustain the presumption of lawfulness of an order, the order must have a valid military purpose and must be a clear, narrowly drawn mandate. United States v. Moore , 58 M.J. 466 (2003) (rejecting a First Amendment overbroad attack and a Fifth Amendment vagueness attack on an article 90 violation because the order in question had a valid military purpose and was “sufficiently clear, specific, and narrowly drawn.”).
    1. The order must be a specific mandate to do or not to do a specific act. MCM, pt. IV, 14.c.(2)(b); United States v. Womack , 29 M.J. 88 (C.M.A. 1989) (“safe sex” order for HIV positive airman was “specific, definite, and certain.”); United States v. Warren , 13 M.J. 160 (C.M.A. 1982) (ambiguous whether statement “settle down and be quiet” was order or mere counseling); United States v. Mantilla , 36 M.J. 621 (A.C.M.R. 1992) (order to “double time” to barracks to retrieve gear was positive command rather than advice); United States v. Claytor , 34 M.J. 1030 (N.M.C.M.R. 1992) (order to “shut up” on the heels of disrespectful language about a superior commissioned officer was a specific mandate to cease speaking and say nothing further).
    2. But see United States v. Mitchell , 20 C.M.R. 295 (C.M.A. 1955) (“leave out the Orderly Room because I don’t want to have any trouble with you” lacks specificity of meaning and extrinsic evidence can be used to clarify language); United States v. Beattie , 17 M.J. 537 (A.C.M.R. 1983) (where superiors of intoxicated accused did not want him at his assigned place of duty, which was the motor pool, unclarified order to “return to his place of duty and go to work” was not a clear mandate).
  4. Lawfulness of the order is a question of law that must be decided by the military judge.
    1. United States v. Diesher , 61 M.J. 313 (C.A.A.F. 2005) (holding the legality of an order is an issue of law that must be decided by the military judge (citing United States v. New, 55 M.J. 95 (C.A.A.F. 2001)).
    2. In 2005, MCM, Part IV, para. 14c(2)(a) was amended to clarify that the determination of lawfulness resides with the military judge, rather than the trier of fact. The analysis cites United States v. New , 55 M.J. 95 (C.A.A.F. 2001) as the basis for this change.
  1. Knowledge.
    1. test1 047 (Side 47)The prosecution must prove, as an element of the offense, that the accused had actualknowledge of the order. MCM, pt. IV, 14c(2)(e); United States v. Shelly , 19 M.J. 325 (C.M.A. 1985); United States v. Pettigrew , 41 C.M.R. 191 (C.M.A. 1970) (although knowledge may be proven by circumstantial evidence, the knowledge must be actual and not constructive).
    2. The prosecution must prove that the accused had actual knowledge of the status ofthe victim. MCM, pt. IV,  14c(2)(e); United States v. Young , 40 C.M.R. 36 (C.M.A. 1060) (voluntary intoxication raised issue of whether accused knew he was dealing with his superior officer); United States v. Oisten , 33 C.M.R. 188 (C.M.A. 1963); United States v. Payne , 29 M.J. 899 (A.C.M.R. 1989).
  2. Willfulness of Disobedience.
    1. Disobedience must be intentional defiance of authority. Failure to comply throughheedlessness or forgetfulness is not “willful” (but it may violate Article 92). MCM, pt. IV,  14c(2)(f).
    2. Intentional noncompliance, not “flaunting of authority,” is required. United States v.Ferenczi , 27 C.M.R. 77 (C.M.A. 1958).
    3. Voluntary intoxication might prevent the accused from having the willful state of mind required by Article 91. United States v. Cameron , 37 M.J. 1042 (A.C.M.R. 1993) (where accused was intoxicated and did not complete the assigned task of cleaning room by proscribed deadline, members should have been instructed on lesser included offense of failing to obey lawful order, under Article 92, which does not require willfulness).
  3. Origin of the Order
    1. The alleged victim must be personally involved in the issuance of the order. UnitedStates v. Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued without the knowledge or involvement of the Base Traffic Officer was not sufficient for purposes of Art. 90, but did support a conviction under Art. 92).
    2. The order must originate from the alleged victim, and not be the order of a superiorfor whom the alleged victim is a mere conduit. United States v. Marsh , 11 C.M.R. 48 (C.M.A. 1953) (specification improperly alleged victim as a captain who was merely transmitting order from the Commanding General); United States v. Sellers , 30 C.M.R. 262 (C.M.A. 1961) (major was not a mere conduit, where he passed on order of colonel, threw the weight of his rank and position into the balance, and added additional requirement); United States v. Wartsbaugh , 45 C.M.R. 309 (C.M.A. 1972) (setting aside Article 90 violation where the court characterized the company commander’s order as “predicated upon…a battalion directive”).
  4. Time for Compliance. MCM, pt. IV, 14c(2)(g).
    1. When an order requires immediate compliance, accused’s statement that he will notobey and failure to make any move to comply constitutes disobedience. United States v. Stout , 5 C.M.R. 67 (C.M.A. 1952) (order to join combat patrol). Time in which compliance is required is a question of fact. United States v. Cooper , 14 M.J. 758 (A.C.M.R. 1982) (order to go upstairs and change clothes not countermanded by subsequent order to accompany victim to orderly room, because disobedience to first order already complete); United States v. McLaughlin , 14 M.J. 908 (N.M.C.M.R. 1982) (order to produce ID card required immediate compliance).
    2. Immediate compliance is required by any order that does not explicitly or implicitlyindicate that delayed compliance is authorized or directed. MCM, pt. IV, 14c(2)(g) (2008 amendment), United States v. Schwabauer , 34 M.J. 709 (A.C.M.R. 1992) (direct order to “stop and come back here” clearly and unambiguously required immediate obedience without delay), aff’d, 37 M.J. 338 (C.M.A. 1993). However, when time for compliance is not stated explicitly or implicitly, then reasonable delay in compliance does not constitute disobedience. MCM, pt. IV, 14c(2)(g). United States v. Clowser , 16 C.M.R. 543 (A.F.B.R. 1954) (delay resulting from a sincere and reasonable choice of means to comply with order to “go up to the barracks and go to bed” was not a completed disobedience).
    3. When immediate compliance is required, disobedience is completed when the one towhom the order is directed first refuses and evinces an intentional defiance of authority. United States v. Vansant , 11 C.M.R. 30 (C.M.A. 1953) (order to return to his platoon and be there in one and a half hours necessitated immediate compliance, and refusal to comply constituted disobedience).
    4. For orders that require preliminary steps before they can be executed, the recipientmust begin the preliminary steps immediately or the disobedience is complete. United States v. Wilson , 17 M.J. 1032 (A.C.M.R. 1984) pet. denied, 19 M.J. 79 (C.M.A. 1984) (lieutenant’s order to “shotgun” a truck, which entailed preparation prior to travel, was disobeyed when accused verbally refused three times and walked out of lieutenant’s office).
    5. Apprehension of an accused before compliance is due is a legitimate defense to thealleged disobedience. See United States v. Williams , 39 C.M.R. 78 (C.M.A. 1968).
    6. If an order is to be performed in the future, the accused’s present statement of intentto disobey does not constitute disobedience. United States v. Squire , 47 C.M.R. 214 (N.C.M.R. 1973).

Matters in Defense

  1. The order lacks content/specific mandate. United States v. Bratcher , 39 C.M.R. 125(C.M.A. 1969); United States v. Oldaker , 41 C.M.R. 497 (A.C.M.R. 1969) (order “to train” given to basic trainee lacked content); United States v. Couser , 3 M.J. 561 (A.C.M.R. 1977) (order to resume training with company was proper); United States v. Beattie , 17 M.J. 537 (A.C.M.R. 1983) (order to “follow the instructions of his NCO’s” lacked content).
  2. test1 114 (Side 114)“Ultimate offense” doctrine.
    1. The order requires acts already required by law, regulation, standing orders, or routine (pre-existing) duty. United States v. Bratcher , 39 C.M.R. 125 (C.M.A. 1969) (order to “perform duties as a duty soldier, the duties to be performed and to be assigned to him by the First Sergeant” was not a specific mandate but rather an exhortation to do his duty as already required by law; order to obey the law can have no validity beyond the limit of the ultimate offense committed); United States v. Sidney , 48 C.M.R. 801 (A.C.M.R. 1974) (officer’s order to comply with local regulations on registration and safekeeping of personal weapons should have been charged under Article 92(2)); United States v. Wartsbaugh , 45 C.M.R. 309 (C.M.A. 1972) (order to comply with battalion uniform directive should have been charged under Article 92(2)); but cf. United States v. Traxler , 39 M.J. 476 (C.M.A. 1994) (commander can lift otherwise routine duty “above the common ruck” to ensure compliance but not to merely enhance punishment).
    2. Minor offenses may not be escalated in severity by charging them as violation of orders or willful disobedience of superiors. United States v. Hargrove , 51 M.J. 408 (1999); United States v. Quarles , 1 M.J. 231 (C.M.A. 1975) (holding maximum punishment cannot be increased by charging disobedience rather than failure to repair); United States v. Loos , 16 C.M.R. 52 (C.M.A. 1954) (holding “gravamen” of offense was failure to repair rather than failure to obey lawful order).
    3. Violation of a personal order is punishable as a separate offense if it is given for the purpose of having the full authority of the superior’s position and rank to ensure compliance. United States v. Traxler , 39 M.J. 476 (C.M.A. 1994) (willful disobedience of superior commissioned officer and missing movement); United States v. Landwehr , 18 M.J. 355 (C.M.A. 1984) (willful disobedience of superior commissioned officer and failure to repair); United States v. Pettersen , 17 M.J. 69 (C.M.A. 1983) (willful disobedience of superior noncommissioned officer and AWOL); United States v. Greene , 8 M.J. 796 (N.C.M.R. 1980); United States v. United States v. Bethea , 2 M.J. 892 (A.C.M.R. 1976); States v. Bivins , 34 C.M.R. 527 (A.B.R. 1964).
  3. Repeated orders.
    1. If the sole purpose of repeated personal orders is to increase the punishment for an offense, disobedience of the repeated order is not a crime. United States v. Tiggs , 40 C.M.R. 352 (A.B.R. 1968).
    2. Repeated orders may constitute an unreasonable multiplication of charges. United States v. Graves , 12 M.J. 583 (A.F.C.M.R. 1981) (dismissing conviction for willful disobedience of lieutenant’s order that immediately followed and was identical to order from sergeant, which was the basis of a separate conviction); United States v. Greene , 8 M.J. 796 (N.C.M.R. 1980) (subsequent orders of superior commissioned officers merely reiterating original order of petty officer could not form basis for additional convictions for willful disobedience of superior commissioned officers); United States v. Bivins , 34 C.M.R. 527 (A.B.R. 1964).
  4. Violation of an order that is part of an apprehension constitutes resistingapprehension rather than disobedience of an order. United States v. Nixon , 45 C.M.R. 254 (C.M.A. 1974) (officer’s order “to leave the . . . room and get into a jeep” was the initial step of an apprehension, and disobedience should have been prosecuted under Article 95 rather than Article 90); United States v. Burroughs , C.M.R. 404 (A.C.M.R. 1974). But see United States v. Jessie , 2 M.J. 573 (A.C.M.R. 1977) (when already in custody, order to remain in building to reinforce status was independent lawful command).
  5. The order is inconsistent with a service regulation. United States v. Roach , 29 M.J. 33(C.M.A. 1989) (Coast Guard regulation on drug and alcohol policy).
  6. The defense of conflicting orders. United States v. Clausen , 43 C.M.R. 128 (C.M.A.1971); United States v. Patton , 41 C.M.R. 572 (A.C.M.R. 1969) (“criminal prosecution for disobedience of an order cannot be based upon a subordinate’s election to obey one of two conflicting orders when simultaneous compliance with both orders is impossible”); but cf. United States v. Hill , 26 M.J. 876 (N.M.C.M.R. 1988) (no defense where accused obeyed neither of the conflicting orders but rather remained in his “rack”).
  7. Orders must not conflict with, or detract from, the scope or effectiveness of ordersissued by higher headquarters. United States v. Clausen , 43 C.M.R. 128 (C.M.A. 1971); United States v. Green , 22 M.J. 711 (A.C.M.R. 1986).
  8. Conscientious objection is not a defense to disobedience of lawful orders. UnitedStates v. Johnson , 45 M.J. 88 (C.A.A.F. 1996); United States v. Walker , 41 M.J. 462 (1995); United States v. Austin , 27 M.J. 227 (C.A.A.F. 1988).
  9. State of mind defenses may apply. United States v. Young , 40 C.M.R. 36 (C.M.A.1969). XV.

Willfulness of Disobedience

he defense of conflicting orders.