The lawfulness of orders

Presumption of Lawfulness

test1 059 (Side 59)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 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 soldier to wear United Nations blue beret and insignia).

Disobedience

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, and 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, specific, 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).

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 members of a unit 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 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 valid military purpose of maintaining good order and discipline in the military community and to protect 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 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 valid military purpose).

  1. An order that has for its sole object a private end is unlawful, but an order that benefits the command as well as serving 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).
  2. Punishment.
    1. Orders extending punishments beyond those lawfully imposed are illegal. United States v. McCoy , 30 C.M.R. 68 (C.M.A. 1960) (order to continue extra duty after punishment imposed under Article 15 already completed).
    2. “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 United States v. Hoover , 24 M.J. 874 (A.C.M.R. 1987) (requiring accused to live in pup tent for 3 weeks between the hours of 2200 and 0400 was unlawful punishment).

Overly Broad Limitation on Personal Right

test1 082 (Side 82)An order that is “arbitrary and capricious, overlybroad 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 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 adulterous relationship not overbroad).

  1. Marriage. Regulations reasonably restricting marriages of foreign-based servicepersonnel 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).
  2. “Safe sex” order to servicemember infected with HIV 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).
  3. A service member who violates the terms of a no-contact order is subject topunishment 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).
  4. 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).
  5. Alcohol.
    1. Regulations establishing a minimum drinking age for service personnel in a command abroad are legal. United States v. Manos , 37 C.M.R. 274 (C.M.A. 1967).
    2. A military member may also be lawfully ordered not to consume alcoholic beverages as a condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the accused’s presence at the court-martial or pretrial hearings in a sober condition. United States v. Blye , 37 M.J. 92 (C.M.A. 1993).
    3. Order not to consume alcohol must have a reasonable connection to military needs; United States v. Stewart , 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic beverages to see if the accused was an alcoholic was invalid); United States v. Kochan , 27 M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal).
  6. Loans. Orders restricting loans between service members may be lawful, if there is a sufficient connection between the military’s duty to protect the morale, discipline, and usefulness of its members. United States v. McClain , 10 M.J. 271 (C.M.A. 1981) (upholding conviction for violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort Jackson); United States v. Smith , 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for profit or any benefit without consent of commander, without a corresponding military need, was invalid as too restrictive); United States v. Giordano , 35 C.M.R. 135 (C.M.A. 1964) (order fixing a maximum legal rate of interest on loans among military members was lawful).
  7. Writing checks. United States v. James , 52 M.J. 709 (Army Ct. Crim. App. 2000)(order “not to write any more checks” was lawful). Contra United States v. Alexander , 26 M.J. 796 (A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid).
  8. Regulations may proscribe the use of customs-free privileges in Korea for personalgain or profit. United States v. Lehman , 5 M.J. 740 (A.F.C.M.R. 1978).
  9. As long as not unreasonable and not unduly humiliating or degrading, an order toproduce a urine specimen under direct observation is lawful. Unger v. Ziemniak , 27 M.J. 349 (C.M.A. 1989).
  10. Order to cooks to shower before reporting to work in the galley was lawful. United States v. Horner , 32 M.J. 576 (C.G.C.M.R. 1991).
  11. Regulation prohibiting transportation of persons without prescribed travel documents on the Helmstadt-Berlin autobahn between former East and West Germany in a vehicle with United States military registration was lawful and was not a violation of human rights or the Thirteenth Amendment. United States v. Stockman , 17 M.J. 530 (A.C.M.R. 1983).
  12. test1 097 (Side 97)Regulations requiring members of the service to obtain approval from their commanders before circulating petitions on military installations are lawful. Brown v. Glines , 444 U.S. 348 (1979) (Air Force had substantial governmental interest unrelated to the suppression of free expression; while 10 U.S.C. § 1034 ensures that individual servicemen can write to members of Congress without sending the communication through official channels, it does not cover the general circulation of a petition within a military base); Secretary of the Navy v. Huff , 444 U.S. 453 (1979) (similar Navy regulation).

Litigating the Issue of Lawfulness of the Order

Lawfulness of an order, although animportant issue, is not a discrete element of a disobedience offense. Therefore, it is a question of law to be determined by the military judge. MCM pt. IV,  14c(2)(a). United States v. Jeffers , 57 M.J. 13 (C.A.A.F. 2002); United States v. New , 55 M.J. 95 (C.A.A.F. 2001); But see United States v. Mack , 65 M.J. 108 (C.A.A.F. 2007) (while the lawfulness of an order is a question of law to be determined by the military judge, submitting the question of lawfulness to a panel is harmless error when the accused fails to rebut the presumption of lawfulness).

Lawfulness of an order

Writing checks