Protected status

  1. test1 122 (Side 122)General. Articles 89, 90, and 91 cover offenses against superior commissioned officers and noncommissioned and warrant officers in the execution of office. Two conditions—superior status and the performance of the duties of office—provide increased protection to victims and increased punishment to violators of these Articles
  2. “Superior Commissioned Officer” Defined. The victim’s status as the superiorcommissioned officer of the accused is an element of crimes involving disrespect (Article 89), disobedience (Article 90(2)), and assault (Article 90(1)) in which the victim’s status as a superior officer enhances the penalty. The following rules are applicable to each of the above offenses.
    1. Accused & Victim in Same Armed Service. MCM pt. IV,  13(c)(1)(a).
      1. The victim is the accused’s “superior commissioned officer” if the victim is a commissioned officer superior in rank to the accused (not date of rank in the same grade).
      2. The victim is the accused’s “superior commissioned officer” if the victim is superior in command to the accused, even if the victim is inferior in grade to the accused.
      3. The victim is not the accused’s “superior commissioned officer” if the victim is superior in grade but inferior in command.
    2. Accused & Victim in Diff. Armed Services. MCM pt. IV,  13(c)(1)(b).
      1. The victim is the accused’s “superior commissioned officer” if the victim is a commissioned officer and superior in the chain of command over the accused.
      2. The victim is the accused’s “superior commissioned officer” if the victim, not a medical officer nor a chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse to the normal chain of command is prevented.
      3. The victim is not the accused’s “superior commissioned officer” merely because the victim is superior in grade to the accused. In United States v. Peoples , 6 M.J. 904, 905 (A.C.M.R. 1979), however, the court cited with approval an Article 15 given under the theory of Article 92(2) (failure to obey) for violating the order of an officer of another armed force who was not in the accused’s chain of command.
      4. In United States v. Merriweather , 13 M.J. 605 (A.F.C.M.R. 1982), the court disapproved the conviction of an airman of disrespect to two Navy medical officers. There was no command relationship where the accused merely spent two hours in a Navy emergency room. The court affirmed a conviction for the lesser included offense of disorderly conduct.
    3. Commissioned Warrant Officers.
      1. Both trial and defense counsel should be alert as to whether a warrant officer in a particular case is commissioned. Warrant officers are commissioned upon promotion to CW2. 10 U.S.C. § 582. Warrant Officer One (WO1) is not a commissioned officer.
      2. “Commissioned officer” includes a commissioned warrant officer. 10 U.S.C. § 101(b)(2). See also R.C.M. 103 discussion.
      3. In the Navy, a Chief Warrant Officer is a commissioned officer, the disobedience of whose order constitutes a violation of Article 90. United States v. Kanewske , 37 C.M.R. 298, 299 (C.M.A. 1967).
  3. “Warrant Officer” or “Noncommissioned Officer” Defined. A victim’s status as a WO orNCO is an element of those crimes involving insubordinate conduct toward such individuals, to include: disrespect (Article 91(3)), disobedience (Article 91(2)), and assault (Article 91(1)). Warrant or noncommissioned officer victims must be acting in execution of office.
    1. Warrant Officers. Those individuals appointed as warrant officers to meet Armyrequirements for officers possessing particular skills and specialized knowledge. Although warrant officers usually perform specialized duties within the Army, they may under appropriate circumstances serve in command positions. See ¶ VI.B.3 above regarding “commissioned warrant officers.”
    2. Noncommissioned Officers.
      1. Those in the rank of corporal (E-4) and above.
      2. Not including a specialist (E-4).
      3. Not including a victim of the rank of specialist (E-4) or below who is an “acting” NCO. United States v. Lumbus & Sutton , 49 C.M.R. 248 (C.M.A. 1974); United States v. Evans , 50 C.M.R. 198 (A.C.M.R. 1975). See also MCM, pt. IV, 15.c.(1).
  4. test1 104 (Side 104)“Superior” WO/NCO.
    1. Article 91 protects warrant officers and noncommissioned officers from disrespect,assault, and disobedience when they are in execution of their office. The statute does not require a superior-subordinate relationship. See United States v. Diggs , 52 M.J. 251 (2000) (staff sergeant (E-6) that pushed sergeant (E-5) guilty of assaulting an NCO under Article 91).
    2. If pleaded and proven, the fact the victim was superior to the accused and that theaccused had knowledge of the victim’s superior status is an aggravating factor that exposes the accused a greater maximum punishment. See MCM, pt. IV, ¶ 15c analysis. See also United States v. White , 39 M.J. 796 (N.M.C.M.R. 1994) (holding that Navy service member’s plea of guilty to disrespect toward superior noncommissioned officer, where accused directed obscenities towards Air Force security police NCO apprehending him on an Air Force base, was provident).
  5. Divestiture. Misconduct on the part of a superior in dealing with a subordinate may divestthe former of his authority and thus destroy his protected status if it was substantial departure from the required standards of conduct. See MCM, pt IV, ¶ 13.c.(5).
    1. Conduct amounting to divestiture. United States v. Diggs , 52 M.J. 251 (C.A.A.F.2000) (striking accused); United States v. Richardson , 7 M.J. 320 (C.M.A. 1979) (racial slurs; calling accused “boy”); United States v. Rozier , 1 M.J. 469 (C.M.A. 1976) (unlawful apprehension coupled with unwarranted physical abuse); United States v. Hendrix , 45 C.M.R. 186 (C.M.A. 1972) (officer authorized to search the accused’s quarters for narcotics exceeded the scope of his official authority to search and was not in the execution of his office when, over the accused’s protests, he proceeded to read a letter found in an envelope which he could see contained no contraband); United States v. Struckman , 43 C.M.R. 333 (C.M.A. 1971) (inviting accused to fight); United States v. Noriega , 21 C.M.R. 322 (C.M.A. 1956) (officer victim serving as bartender at enlisted men’s party); United States v. Cheeks , 43 C.M.R. 1013 (A.F.C.M.R. 1971) (sustained verbal abuse of prisoner); United States v. Revels , 41 C.M.R. 475 (A.C.M.R. 1969) (use of brute force on accused by confinement officer).
    2. Conduct not amounting to divestiture. United States v. Pratcher , 17 M.J. 388(C.M.A. 1984) (involvement in collecting debts contrary to regulation); United States v. Lewis , 12 M.J. 205 (C.M.A. 1982) (failure to give proper Article 31(b) warnings); United States v. Lewis , 7 M.J. 348 (C.M.A. 1979) (search that was subsequently determined to not be based on probable cause); United States v. Middleton , 36 M.J. 835 (A.C.M.R. 1977) (close personal friendship with subordinate); United States v. King , 29 M.J. 885 (A.C.M.R. 1989) (striking a prisoner who lunged at a guard); United States v. Collier , 27 M.J. 806 (A.C.M.R. 1988) (use of profane language) rev’d in part on other grounds by, 29 M.J. 365 (C.M.A. 1990); United States v. Leach , 22 M.J. 738 (N.M.C.M.R. 1986) (general allegations of “horseplay”); United States v. Allen , 10 M.J. 576 (A.C.M.R. 1980) (addressing accused as “boy” where accused did not regard use of term as racial slur and both the victim and accused were the same race); United States v. Fetherson , 8 M.J. 607, 609 (N.M.C.M.R. 1977) (illegal apprehension); United States v. McDaniel , 7 M.J. 522 (A.C.M.R. 1979) (sergeant who places drunken and protesting soldier in cold shower); United States v. Vallenthine , 2 M.J. 1170 (N.C.M.R. 1974) (escorting with one hand on shirt collar and other on seat of trousers); United States v. Montgomery , 11 C.M.R. 308 (A.B.R. 1953) (playing poker with subordinate officers).
    3. If an NCO commits misconduct that divests him of his authority as an NCO, he mayregain his protected status by desisting in the illegal conduct and attempting to resolve the matter within appropriate channels. United States v. Diggs , 52 M.J. 251 (C.A.A.F. 2000).
    4. Divestiture is limited to offenses where the protected status of the victim is anelement, but it does not necessarily extend to lesser included offenses. Although the accused may not be convicted of an assault upon a superior under Articles 90 or 91 when the victim’s conduct divests himself of his status, the accused may be found guilty of the lesser included offense of assault under Article 128. United States v. Richardson , 7 M.J. 320 (C.M.A. 1979); United States v. Johnson , 43 C.M.R. 604 (A.C.M.R. 1970).
    5. Members may find “partial” divestiture. United States v. Sanders , 41 M.J. 485(C.A.A.F. 1995) (members found victim not in execution of office for purposes of assault, but he had not divesting himself of his rank status: “He had left his post, but not his stripes”).
    6. Divestiture does not apply to disobedience offenses. See United States v. Cheeks , 43
  6. M.R. 1013 (A.F.C.M.R. 1971). But see United States v. Collier , 27 M.J. 806(A.C.M.R. 1988) rev’d in part on other grounds by, 29 M.J. 365 (C.M.A. 1990). See generally Major Eugene R. Milhizer, The Divestiture Defense and United States v. Collier , Army Law., Mar., 1990, at 3

Commissioned Warrant Officers.

Noncommissioned Officers.