lawful orders - the manual for courts-martial and the case of lt col terrence lakin

"An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate." MCM 2008 Ed, ¶14.c.(2)(a)(i), p. IV-19.

Lawful Orders - Manual of Courts-Martial

And the case of Lt. Col. Terrence Lakin by nolu chan April 14, 2010 Appended at end – complete paragraphs 14-16 of Manual of Courts-Martial, 2008 Edition, pp. IV-18 thru IV-25; covering:

• UCMJ Article 90 – Assaulting or willfully disobeying superior commissioned officer • UCMJ Article 91 – Insubordinate conduct toward warrant officer, noncommissioned

officer, or petty officer • UCMJ Article 92 – Failure to obey order or regulation

There is wild speculation around the blogosphere that a court-martial of Lt. Col. Lakin will potentially involve purported evidence calling into question the eligibility of Barack Obama to serve as President or Commander-in-Chief of the armed forces. The eligibility of President Obama is irrelevant to the prospective military charges and proceedings. The Manual of Courts-Martial, 2008 Edition (MCM), states at paragraph 14.c(2)(a)(i), "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime." The order to deploy will be inferred to be lawful. MCM paragraph 14 also clearly sets forth that "[t]he lawfulness of an order is a question of law to be determined by the military judge." The military judge will determine the lawfulness of the order, not the eligibility of Barack Obama to be President or Commander in Chief of the armed forces. MCM paragraph 14 clearly sets forth that "[t]he commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service." The commissioned officer issuing the order is not President Barack Obama. Barack Obama is a civilian. MCM paragraph 14.c(2)(a)(v) states, "[t]he order must not conflict with the statutory or constitutional rights of the person receiving the order." There is no statutory or constitutional

provision giving Lt. Col. Lakin some personal right to demand that his superior officers provide him with a copy of any documentation regarding President Barack Obama. None of the factors to be considered regarding a charge of disobedience of an order, or regarding the lawfulness of such order, relates to the eligibility of President Barack Obama. Manual of Courts-Martial, 2008 Edition, page IV-24, MCM Paragraph 16

16. Article 92 – Failure to obey order or regulation

[...] (c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a). [nc - provided below] [...] (2) Violation of or failure to obey other lawful order. (a) Scope. Article 92(2) includes all other lawful orders which may be issued by a member of the armed forces, violations of which are not chargeable under Article 90, 91, or 92(1). It includes the violation of written regulations which are not general regulations. See also subparagraph (1)(e) above as applicable. (b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the order or regulation. Knowledge of the order may be proved by circumstantial evidence. (c) Duty to obey order. ( i ) From a superior. A member of one armed force who is senior in rank to a member of another armed force is the superior of that member with authority to issue orders which that member has a duty to obey under the same circumstances as a commissioned officer of one armed force is the superior commissioned officer of a member of another armed force for the purposes of Articles 89 and 90. See paragraph 13c(1). (ii) From one not a superior. Failure to obey the lawful order of one not a superior is an offense under Article 92(2), provided the accused had a duty to obey the order, such as one issued by a sentinel

Manual of Courts-Martial, 2008 Edition, page IV-19-20, MCM Paragraph 14

14. Article 90 – Assaulting or willfully disobeying superior commissioned officer

(2) Disobeying superior commissioned officer. (a) Lawfulness of the order. (i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (ii) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge. (iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service. (iv) Relationship to military duty. 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 command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article. (v) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order. (b) Personal nature of the order. The order must be directed specifically to the subordinate. Violations of regulations, standing orders or directives, or failure to perform previously established duties are not punishable under this article, but may violate Article 92. (c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused. (d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to “obey the law” or to perform one’s military duty does not constitute an order under this article.

(e) Knowledge. The accused must have actual knowledge of the order and of the fact that the person issuing the order was the accused’s superior commissioned officer. Actual knowledge may be proved by circumstantial evidence. (f) Nature of the disobedience. “Willful disobedience” is an intentional defiance of authority. Failure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this article but may violate Article 92. (g) Time for compliance. When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. If an order does not indicate the time within which it is to be complied with, either expressly or by implication, then a reasonable delay in compliance does not violate this article. If an order requires performance in the future, an accused’s present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may. (3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military law (see Article 2) and under the command of a commissioned officer is subject to the provisions of this article.

prevented. The victim is not a “superior commis-sioned officer” of the accused merely because thevictim is superior in grade to the accused.

(c) Execution of office. It is not necessary thatthe “superior commissioned officer” be in the execu-t i o n o f o f f i c e a t t h e t i m e o f t h e d i s r e s p e c t f u lbehavior.

(2) Knowledge. If the accused did not know thatthe person against whom the acts or words weredirected was the accused’s superior commissionedofficer, the accused may not be convicted of a viola-tion of this article. Knowledge may be proved bycircumstantial evidence.

( 3 ) D i s r e s p e c t . D i s r e s p e c t f u l b e h a v i o r i s t h a twhich detracts from the respect due the authorityand person of a superior commissioned officer. Itmay consist of acts or language, however expressed,and it is immaterial whether they refer to the supe-rior as an officer or as a private individual. Dis-r e s p e c t b y w o r d s m a y b e c o n v e y e d b y a b u s i v eepithets or other contemptuous or denunciatory lan-guage. Truth is no defense. Disrespect by acts in-cludes neglecting the customary salute, or showing am a r k e d d i s d a i n , i n d i f f e r e n c e , i n s o l e n c e , i m p e r t i -nence, undue familiarity, or other rudeness in thepresence of the superior officer.

(4) Presence. It is not essential that the disre-spectful behavior be in the presence of the superior,but ordinarily one should not be held accountableunder this article for what was said or done in apurely private conversation.

(5) Special defense—unprotected victim. A supe-rior commissioned officer whose conduct in relationto the accused under all the circumstances departssubstantially from the required standards appropriateto that officer’s rank or position under similar cir-cumstances loses the protection of this article. Thataccused may not be convicted of being disrespectfulto the officer who has so lost the entitlement torespect protected by Article 89.

d. Lesser included offenses.

(1) Article 117—provoking speeches or gestures

(2) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,forfeiture of all pay and allowances, and confine-ment for 1 year.

f. Sample specification.I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , behave himself/herself with disrespect toward , his/her superior commissioned officer, then known bythe said to be his/her superior commis-sioned officer, by (saying to him/her “ ,”o r w o r d s t o t h a t e f f e c t ) ( c o n t e m p t u o u s l y t u r n i n gf r o m a n d l e a v i n g h i m / h e r w h i l e h e / s h e , t h es a i d , w a s t a l k i n g t o h i m / h e r , t h esaid ) ( ).

14. Article 90—Assaulting or willfullydisobeying superior commissioned officera. Text of statute. Any person subject to thischapter who—

(1) strikes his superior commissioned officer ordraws or lifts up any weapon or offers any vio-lence against him while he is in the execution ofhis office; or

(2) willfully disobeys a lawful command of hissuperior commissioned officer;shall be punished, if the offense is committed intime of war, by death or such other punishmentas a court-martial may direct, and if the offenseis committed at any other time, by such punish-ment, other than death, as a court-martial maydirect.b. Elements.

(1) Striking or assaulting superior commissionedofficer.

(a) That the accused struck, drew, or lifted up aweapon against, or offered violence against, a cer-tain commissioned officer;

(b) That the officer was the superior commis-sioned officer of the accused;

(c) That the accused then knew that the officerwas the accused’s superior commissioned officer;and

(d) That the superior commissioned officer wasthen in the execution of office.

(2) Disobeying superior commissioned officer.

(a) That the accused received a lawful com-mand from a certain commissioned officer;

(b) That this officer was the superior commis-sioned officer of the accused;

(c) That the accused then knew that this officerwas the accused’s superior commissioned officer;and

IV-18

¶13.c.(1)(b)

Manual of Courts-Martial, 2008 Edition

(d) That the accused willfully disobeyed thelawful command.

c. Explanation.

(1) Striking or assaulting superior commissionedofficer.

(a) Definitions.

(i) Superior commissioned officer. The defi-nitions in paragraph 13c(1)(a) and( b) apply hereand in subparagraph c(2).

( i i ) S t r i k e s . “ S t r i k e s ” m e a n s a n i n t e n t i o n a lblow, and includes any offensive touching of theperson of an officer, however slight.

(iii) Draws or lifts up any weapon against.The phrase “draws or lifts up any weapon against”covers any simple assault committed in the mannerstated. The drawing of any weapon in an aggressivemanner or the raising or brandishing of the same ina threatening manner in the presence of and at thesuperior is the sort of act proscribed. The raising ina threatening manner of a firearm, whether or notloaded, of a club, or of anything by which a seriousblow or injury could be given is included in “liftsup.”

(iv) Offers any violence against. The phrase“offers any violence against” includes any form ofbattery or of mere assault not embraced in the pre-ceding more specific terms “strikes” and “draws orlifts up.” If not executed, the violence must be phys-ically attempted or menaced. A mere threatening inwords is not an offering of violence in the sense ofthis article.

(b) Execution of office. An officer is in theexecution of office when engaged in any act or serv-ice required or authorized by treaty, statute, regula-tion, the order of a superior, or military usage. Ingeneral, any striking or use of violence against anysuperior officer by a person over whom it is the dutyof that officer to maintain discipline at the time,would be striking or using violence against the offi-cer in the execution of office. The commanding offi-cer on board a ship or the commanding officer of aunit in the field is generally considered to be onduty at all times.

(c) Knowledge. If the accused did not know theofficer was the accused’s superior commissioned of-ficer, the accused may not be convicted of this of-fense. Knowledge may be proved by circumstantialevidence.

(d) Defenses. In a prosecution for striking or

assaulting a superior commissioned officer in viola-tion of this article, it is a defense that the accusedacted in the proper discharge of some duty, or thatthe victim behaved in a manner toward the accusedsuch as to lose the protection of this article ( seeparagraph 13c(5)). For example, if the victim initi-ated an unlawful attack on the accused, this woulddeprive the victim of the protection of this article,and, in addition, could excuse any lesser includedoffense of assault as done in self-defense, dependingon the circumstances ( see paragraph 54c; R.C.M.916(e)).

(2) Disobeying superior commissioned officer.

(a) Lawfulness of the order.

(i) Inference of lawfulness. An order requir-ing the performance of a military duty or act may beinferred to be lawful and it is disobeyed at the perilof the subordinate. This inference does not apply toa patently illegal order, such as one that directs thecommission of a crime.

(ii) Determination of lawfulness. The lawful-ness of an order is a question of law to be deter-mined by the military judge.

(iii) Authority of issuing officer. The com-missioned officer issuing the order must have au-thority to give such an order. Authorization may bebased on law, regulation, or custom of the service.

(iv) Relationship to military duty. The ordermust relate to military duty, which includes all activ-ities reasonably necessary to accomplish a militarymission, or safeguard or promote the morale, disci-pline, and usefulness of members of a command anddirectly connected with the maintenance of good or-der in the service. The order may not, without sucha valid military purpose, interfere with private rightsor personal affairs. However, the dictates of a per-son’s conscience, religion, or personal philosophycannot justify or excuse the disobedience of an oth-erwise lawful order. Disobedience of an order whichhas for its sole object the attainment of some privateend, or which is given for the sole purpose of in-creasing the penalty for an offense which it is ex-pected the accused may commit, is not punishableunder this article.

( v ) R e l a t i o n s h i p t o s t a t u t o r y o r c o n s t i t u -tional rights. The order must not conflict with thestatutory or constitutional rights of the person re-ceiving the order.

(b) Personal nature of the order. The order

IV-19

¶14.c.(2)(b)


must be directed specifically to the subordinate. Vio-lations of regulations, standing orders or directives,or failure to perform previously established dutiesare not punishable under this article, but may violateArticle 92.

(c) Form and transmission of the order. Aslong as the order is understandable, the form of theorder is immaterial, as is the method by which it istransmitted to the accused.

(d) Specificity of the order. The order must bea specific mandate to do or not to do a specific act.An exhortation to “obey the law” or to performo n e ’ s m i l i t a r y d u t y d o e s n o t c o n s t i t u t e a n o r d e runder this article.

(e) Knowledge. The accused must have actualknowledge of the order and of the fact that theperson issuing the order was the accused’s superiorc o m m i s s i o n e d o f f i c e r . A c t u a l k n o w l e d g e m a y b eproved by circumstantial evidence.

(f) Nature of the disobedience. “Willful disobe-dience” is an intentional defiance of authority. Fail-ure to comply with an order through heedlessness,remissness, or forgetfulness is not a violation of thisarticle but may violate Article 92.

(g) Time for compliance. When an order re-quires immediate compliance, an accused’s declaredintent not to obey and the failure to make any moveto comply constitutes disobedience. If an order doesnot indicate the time within which it is to be com-plied with, either expressly or by implication, then areasonable delay in compliance does not violate thisarticle. If an order requires performance in the fu-ture, an accused’s present statement of intention todisobey the order does not constitute disobedience ofthat order, although carrying out that intention may.

( 3 ) C i v i l i a n s a n d d i s c h a r g e d p r i s o n e r s . A d i s -charged prisoner or other civilian subject to militarylaw (see Article 2) and under the command of acommissioned officer is subject to the provisions ofthis article.


(1) Striking superior commissioned officer in exe-cution of office.

(a) Article 90—drawing or lifting up a weaponor offering violence to superior commissioned offi-cer in execution of office

(b) Article 128—assault; assault consummatedby a battery; assault with a dangerous weapon

( c ) A r t i c l e 1 2 8 — a s s a u l t o r a s s a u l t c o n s u m -mated by a battery upon commissioned officer not inthe execution of office

(d) Article 80—attempts

(2) Drawing or lifting up a weapon or offeringviolence to superior commissioned officer in execu-tion of office.

( a ) A r t i c l e 1 2 8 — a s s a u l t , a s s a u l t w i t h d a n -gerous weapon

(b) Article 128—assault upon a commissionedofficer not in the execution of office

(c) Article 80—attempts

(3) Willfully disobeying lawful order of superiorcommissioned officer.

(a) Article 92—failure to obey lawful order

(b) Article 89—disrespect to superior commis-sioned officer


e. Maximum punishment.

(1) Striking, drawing, or lifting up any weapon oroffering any violence to superior commissioned offi-c e r i n t h e e x e c u t i o n o f o f f i c e . D i s h o n o r a b l e d i s -charge, forfeiture of all pay and allowances, andconfinement for 10 years.

(2) Willfully disobeying a lawful order of supe-rior commissioned officer. Dishonorable discharge,forfeiture of all pay and allowances, and confine-ment for 5 years.

(3) In time of war. Death or such other punish-ment as a court-martial may direct.

f. Sample specifications.

(1) Striking superior commissioned officer.In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdic-t i o n d a t a , i f r e q u i r e d ) , o n o ra b o u t 2 0 , ( a t i m e o f w a r )s t r i k e , h i s / h e r s u p e r i o r c o m m i s s i o n e dofficer, then known by the said to behis/her superior commissioned officer, who was theni n t h e e x e c u t i o n o f h i s / h e r o f f i c e , ( i n ) ( o n )the with (a) (his/her) .

(2) Drawing or lifting up a weapon against supe-rior commissioned officer.

In that (personal jurisdiction data),did, (at/on board—location) (subject-matter jurisdic-t i o n d a t a , i f r e q u i r e d ) , o n o rabout 20 , (a time of war) (draw)l i f t u p ) a w e a p o n , t o w i t : a ,

IV-20

¶14.c.(2)(b)


against , his/her superior commissionedofficer, then known by the said to behis/her superior commissioned officer, who was thenin the execution of his/her office.

(3) Offering violence to superior commissionedofficer.

In that (personal jurisdiction data),did, (at/on board—location) (subject-matter jurisdic-t i o n d a t a , i f r e q u i r e d ) , o n o rabout 20 , (a time of war) offerviolence against , his/her superior com-m i s s i o n e d o f f i c e r , t h e n k n o w n b y t h e s a i d -

to be his/her superior commissionedofficer, who was then in the execution of his/heroffice, by .

( 4 ) W i l l f u l d i s o b e d i e n c e o f s u p e r i o r c o m m i s -sioned officer.

In that (personal jurisdiction data),h a v i n g r e c e i v e d a l a w f u l c o m m a n df r o m , h i s / h e r s u p e r i o r c o m m i s s i o n e dofficer, then known by the said to beh i s / h e r s u p e r i o r c o m m i s s i o n e d o f f i c e r ,to , or words to that effect, did, (at/onb o a r d — l o c a t i o n ) , o n o ra b o u t 2 0 , w i l l f u l l y d i s o b e ythe same.

15. Article 91—Insubordinate conducttoward warrant officer, noncommissionedofficer, or petty officera. Text of statute. Any warrant officer or en-listed member who—

(1) strikes or assaults a warrant officer, non-commissioned officer, or petty officer, while thatofficer is in the execution of his office;

(2) willfully disobeys the lawful order of a war-rant officer, noncommissioned officer, or pettyofficer; or

(3) treats with contempt or is disrespectful inlanguage or deportment toward a warrant offi-c e r , n o n c o m m i s s i o n e d o f f i c e r , o r p e t t y o f f i c e rwhile that officer is in the execution of his office;shall be punished as a court-martial may direct.b. Elements.

(1) Striking or assaulting warrant, noncommis-sioned, or petty officer.

(a) That the accused was a warrant officer orenlisted member;

(b) That the accused struck or assaulted a cer-tain warrant, noncommissioned, or petty officer;

(c) That the striking or assault was committedwhile the victim was in the execution of office; and

(d) That the accused then knew that the personstruck or assaulted was a warrant, noncommissioned,or petty officer.[Note: If the victim was the superior noncommis-sioned or petty officer of the accused, add the fol-lowing elements]

(e) That the victim was the superior noncom-missioned, or petty officer of the accused; and

(f) That the accused then knew that the personstruck or assaulted was the accused’s superior non-commissioned, or petty officer.

(2) Disobeying a warrant, noncommissioned, orpetty officer.


(b) That the accused received a certain lawfulorder from a certain warrant, noncommissioned, orpetty officer;

(c) That the accused then knew that the persongiving the order was a warrant, noncommissioned,or petty officer;

(d) That the accused had a duty to obey theorder; and

( e ) T h a t t h e a c c u s e d w i l l f u l l y d i s o b e y e d t h eorder.

(3) Treating with contempt or being disrespectfulin language or deportment toward a warrant, non-commissioned, or petty officer.


( b ) T h a t t h e a c c u s e d d i d o r o m i t t e d c e r t a i nacts, or used certain language;

(c) That such behavior or language was usedtoward and within sight or hearing of a certain war-rant, noncommissioned, or petty officer;

(d) That the accused then knew that the persontoward whom the behavior or language was directedwas a warrant, noncommissioned, or petty officer;

(e) That the victim was then in the executionof office; and

(f) That under the circumstances the accused,by such behavior or language, treated with contempt

IV-21

¶15.b.(3)(f)


or was disrespectful to said warrant, noncommis-sioned, or petty officer.[Note: If the victim was the superior noncommis-s i o n e d , o r p e t t y o f f i c e r o f t h e a c c u s e d , a d d t h efollowing elements]

(g) That the victim was the superior noncom-missioned, or petty officer of the accused; and

(h) That the accused then knew that the persontoward whom the behavior or language was directedw a s t h e a c c u s e d ’ s s u p e r i o r n o n c o m m i s s i o n e d , o rpetty officer.

c. Explanation.

(1) In general. Article 91 has the same generalobjects with respect to warrant, noncommissioned,and petty officers as Articles 89 and 90 have withrespect to commissioned officers, namely, to ensureobedience to their lawful orders, and to protect themfrom violence, insult, or disrespect. Unlike Articles89 and 90, however, this article does not require asuperior-subordinate relationship as an element ofany of the offenses denounced. This article does notprotect an acting noncommissioned officer or actingpetty officer, nor does it protect military police ormembers of the shore patrol who are not warrant,noncommissioned, or petty officers.

(2) Knowledge. All of the offenses prohibited byA r t i c l e 9 1 r e q u i r e t h a t t h e a c c u s e d h a v e a c t u a lknowledge that the victim was a warrant, noncom-missioned, or petty officer. Actual knowledge maybe proved by circumstantial evidence.

(3) Striking or assaulting a warrant, noncommis-sioned, or petty officer. For a discussion of “strikes”and “in the execution of office,” see paragraph 14c.For a discussion of “assault,” see paragraph 54c. Anassault by a prisoner who has been discharged fromthe service, or by any other civilian subject to mili-tary law, upon a warrant, noncommissioned, or pettyofficer should be charged under Article 128 or 134.

(4) Disobeying a warrant, noncommissioned, orpetty officer. See paragraph 14c(2) for a discussionof lawfulness, personal nature, form, transmission,and specificity of the order, nature of the disobedi-ence, and time for compliance with the order.

(5) Treating with contempt or being disrespectfulin language or deportment toward a warrant, non-commissioned, or petty officer. “Toward” requiresthat the behavior and language be within the sight orhearing of the warrant, noncommissioned, or pettyofficer concerned. For a discussion of “in the execu-

tion of his office,” see paragraph 14c. For a discus-sion of disrespect, see paragraph 13c.


(1) Striking or assaulting warrant, noncommis-sioned, or petty officer in the execution of office.

(a) Article 128—assault; assault consummatedby a battery; assault with a dangerous weapon

( b ) A r t i c l e 1 2 8 — a s s a u l t u p o n w a r r a n t , n o n -commissioned, or petty officer not in the executionof office


(2) Disobeying a warrant, noncommissioned, orpetty officer.

(a) Article 92—failure to obey a lawful order

(b) Article 80—attempts

(3) Treating with contempt or being disrespectfulin language or deportment toward warrant, noncom-missioned, or petty officer in the execution of office.

(a) Article 117—using provoking or reproach-ful speech

(b) Article 80—attempts


(1) Striking or assaulting warrant officer. Dis-honorable discharge, forfeiture of all pay and allow-ances, and confinement for 5 years.

( 2 ) S t r i k i n g o r a s s a u l t i n g s u p e r i o r n o n c o m m i s -sioned or petty officer. Dishonorable discharge, for-feiture of all pay and allowances, and confinementfor 3 years.

(3) Striking or assaulting other noncommissionedor petty officer. Dishonorable discharge, forfeiture ofall pay and allowances, and confinement for 1 year.

( 4 ) W i l l f u l l y d i s o b e y i n g t h e l a w f u l o r d e r o f awarrant officer. Dishonorable discharge, forfeitureof all pay and allowances, and confinement for 2years.

(5) Willfully disobeying the lawful order of a non-c o m m i s s i o n e d o r p e t t y o f f i c e r . B a d - c o n d u c t d i s -charge, forfeiture of all pay and allowances, andconfinement for 1 year.

( 6 ) C o n t e m p t o r d i s r e s p e c t t o w a r r a n t o f f i c e r .Bad-conduct discharge, forfeiture of all pay and al-lowances, and confinement for 9 months.

(7) Contempt or disrespect to superior noncom-missioned or petty officer. Bad-conduct discharge,forfeiture of all pay and allowances, and confine-ment for 6 months.

IV-22

¶15.b.(3)(f)


(8) Contempt or disrespect to other noncommis-sioned or petty officer. Forfeiture of two-thirds payper month for 3 months, and confinement for 3months.


(1) Striking or assaulting warrant, noncommis-sioned, or petty officer.

In that (personal jurisdiction data),did, (at/on board—location) (subject-matter jurisdic-t i o n d a t a , i f r e q u i r e d ) , o n o ra b o u t 2 0 , ( s t r i k e ) ( a s -s a u l t ) , a o f f i c e r , t h e nk n o w n t o t h e s a i d t o b e a ( s u p e r -ior) officer who was then in thee x e c u t i o n o f h i s / h e r o f f i c e ,b y h i m / h e r ( i n ) ( o n )( t h e ) w i t h ( a ) ( h i s /her) .

(2) Willful disobedience of warrant, noncommis-sioned, or petty officer.

In that (personal jurisdiction data),having received a lawful order from ,a officer, then known by the said-

t o b e a o f f i c e r ,to , an order which it was his/her dutyt o o b e y , d i d ( a t / o n b o a r d — l o c a t i o n ) , o n o ra b o u t 2 0 , w i l l f u l l y d i s o b e y t h esame.

(3) Contempt or disrespect toward warrant, non-commissioned, or petty officer.

In that (personal jurisdiction data)( a t / o n b o a r d — l o c a t i o n ) , o n o ra b o u t 2 0 , [ d i d t r e a twith contempt] [was disrespectful in (language) (de-p o r t m e n t ) t o w a r d ] ,a o f f i c e r , t h e n k n o w n b y t h e s a i d -

t o b e a ( s u p e r i o r ) -officer, who was then in the execution

o f h i s / h e r o f f i c e , b y ( s a y i n g t o h i m / h e r ,“ ,” or words to that effect) (spit-ting at his/her feet) ( )

16. Article 92—Failure to obey order orregulationa. Text of statute. Any person subject to thischapter who—

(1) violates or fails to obey any lawful generalorder or regulation;

(2) having knowledge of any other lawful or-

der issued by a member of the armed forces,which it is his duty to obey, fails to obey theorder; or

(3) is derelict in the performance of his duties;shall be punished as a court-martial may direct.b. Elements.

(1) Violation of or failure to obey a lawful gen-eral order or regulation.

(a) That there was in effect a certain lawfulgeneral order or regulation;

(b) That the accused had a duty to obey it; and

(c) That the accused violated or failed to obeythe order or regulation.

(2) Failure to obey other lawful order.

(a) That a member of the armed forces issued acertain lawful order;

( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h eorder;

(c) That the accused had a duty to obey theorder; and

(d) That the accused failed to obey the order.

(3) Dereliction in the performance of duties.

(a) That the accused had certain duties;

( b ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l yshould have known of the duties; and

(c) That the accused was (willfully) (throughneglect or culpable inefficiency) derelict in the per-formance of those duties.

c. Explanation.

(1) Violation of or failure to obey a lawful gen-eral order or regulation.

(a) Authority to issue general orders and regu-lations. General orders or regulations are those or-ders or regulations generally applicable to an armedforce which are properly published by the Presidentor the Secretary of Defense, of Homeland Security,or of a military department, and those orders orregulations generally applicable to the command ofthe officer issuing them throughout the command ora particular subdivision thereof which are issued by:

( i ) a n o f f i c e r h a v i n g g e n e r a l c o u r t - m a r t i a ljurisdiction;

(ii) a general or flag officer in command; or

(iii) a commander superior to (i) or (ii).

(b) Effect of change of command on validity oforder. A general order or regulation issued by acommander with authority under Article 92(1) re-

IV-23

¶16.c.(1)(b)


tains its character as a general order or regulationwhen another officer takes command, until it expiresby its own terms or is rescinded by separate action,even if it is issued by an officer who is a general orflag officer in command and command is assumedb y a n o t h e r o f f i c e r w h o i s n o t a g e n e r a l o r f l a gofficer.

(c) Lawfulness. A general order or regulation islawful unless it is contrary to the Constitution, thelaws of the United States, or lawful superior ordersor for some other reason is beyond the authority ofthe official issuing it. See the discussion of lawful-ness in paragraph 14c(2)(a).

(d) Knowledge. Knowledge of a general ordero r r e g u l a t i o n n e e d n o t b e a l l e g e d o r p r o v e d , a sknowledge is not an element of this offense and alack of knowledge does not constitute a defense.

(e) Enforceability. Not all provisions in generalorders or regulations can be enforced under Article92(1). Regulations which only supply general guide-l i n e s o r a d v i c e f o r c o n d u c t i n g m i l i t a r y f u n c t i o n smay not be enforceable under Article 92(1).

(2) Violation of or failure to obey other lawfulorder.

(a) Scope. Article 92(2) includes all other law-ful orders which may be issued by a member of thearmed forces, violations of which are not chargeableunder Article 90, 91, or 92(1). It includes the viola-tion of written regulations which are not generalregulations. See also subparagraph (1)(e) above asapplicable.

(b) Knowledge. In order to be guilty of thisoffense, a person must have had actual knowledge ofthe order or regulation. Knowledge of the order maybe proved by circumstantial evidence.

(c) Duty to obey order.

( i ) F r o m a s u p e r i o r . A m e m b e r o f o n earmed force who is senior in rank to a member ofanother armed force is the superior of that memberwith authority to issue orders which that memberhas a duty to obey under the same circumstances asa commissioned officer of one armed force is thesuperior commissioned officer of a member of an-other armed force for the purposes of Articles 89and 90. See paragraph 13c(1).

(ii) From one not a superior. Failure to obeythe lawful order of one not a superior is an offenseunder Article 92(2), provided the accused had a dutyto obey the order, such as one issued by a sentinel

or a member of the armed forces police. See para-graph 15b(2) if the order was issued by a warrant,noncommissioned, or petty officer in the executionof office.


(a) Duty. A duty may be imposed by treaty,statute, regulation, lawful order, standard operatingprocedure, or custom of the service.

( b ) K n o w l e d g e . A c t u a l k n o w l e d g e o f d u t i e smay be proved by circumstantial evidence. Actualknowledge need not be shown if the individual rea-sonably should have known of the duties. This maybe demonstrated by regulations, training or operatingmanuals, customs of the service, academic literatureor testimony, testimony of persons who have heldsimilar or superior positions, or similar evidence.

(c) Derelict. A person is derelict in the per-formance of duties when that person willfully ornegligently fails to perform that person’s duties orwhen that person performs them in a culpably ineffi-c i e n t m a n n e r . “ W i l l f u l l y ” m e a n s i n t e n t i o n a l l y . I trefers to the doing of an act knowingly and purpose-ly, specifically intending the natural and probableconsequences of the act. “Negligently” means an actor omission of a person who is under a duty to usedue care which exhibits a lack of that degree of carewhich a reasonably prudent person would have exer-cised under the same or similar circumstances. “Cul-pable inefficiency” is inefficiency for which there isno reasonable or just excuse.

(d) Ineptitude. A person is not derelict in theperformance of duties if the failure to perform thoseduties is caused by ineptitude rather than by willful-ness, negligence, or culpable inefficiency, and maynot be charged under this article, or otherwise pun-ished. For example, a recruit who has tried earnestlyduring rifle training and throughout record firing isnot derelict in the performance of duties if the re-cruit fails to qualify with the weapon.

d. Lesser included offense. Article 80—attempts


(1) Violation or failure to obey lawful generalorder or regulation. Dishonorable discharge, forfei-ture of all pay and allowances, and confinement for2 years.

(2) Violation of failure to obey other lawful or-der. Bad-conduct discharge, forfeiture of all pay andallowances, and confinement for 6 months.[Note: For (1) and (2), above, the punishment set

IV-24

¶16.c.(1)(b)


forth does not apply in the following cases: if in theabsence of the order or regulation which was vio-lated or not obeyed the accused would on the samefacts be subject to conviction for another specificoffense for which a lesser punishment is prescribed;or if the violation or failure to obey is a breach ofrestraint imposed as a result of an order. In theseinstances, the maximum punishment is that specifi-c a l l y p r e s c r i b e d e l s e w h e r e f o r t h a t p a r t i c u l a roffense.]


(A) Through neglect or culpable inefficiency.Forfeiture of two-thirds pay per month for 3 monthsand confinement for 3 months.

(B) Willful. Bad-conduct discharge, forfeitureof all pay and allowances, and confinement for 6months.


(1) Violation or failure to obey lawful generalorder or regulation.

In that (personal jurisdiction data),did, (at/on board—location) (subject-matter jurisdic-t i o n d a t a , i f r e q u i r e d ) , o n o rabout 20 , (violate) (fail to obey)a lawful general (order) (regulation), to wit: (para-graph , (Army) (Air Force) Regula-t i o n , d a t e d 2 0 )( A r t i c l e , U . S . N a v y R e g u l a t i o n s ,d a t e d 2 0 ) ( G e n e r a l O r -d e r N o . , U . S . N a v y ,d a t e d 2 0 ) ( ) , b y(wrongfully) .

(2) Violation or failure to obey other lawful writ-ten order.

In that (personal jurisdiction data),h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e db y , t o w i t : ( p a r a g r a p h ,( t h e C o m b a t G r o u p R e g u l a t i o nN o . ) ( U S S ,R e g u l a t i o n t i o n ) , d a t e d )( ), an order which it was his/her duty toobey, did, (at/on board—location) (subject-matter ju-r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o rabout 20 , fail to obeythe same by (wrongfully) .

(3) Failure to obey other lawful order.In that , (personal jurisdiction data)

h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e db y ( t o s u b m i t t o c e r t a i n m e d i c a l t r e a t -

m e n t ) ( t o ) ( n o t t o )( ), an order which it was his/her duty toobey, did (at/on board—location) (subject-matter ju-r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o rabout 20 , fail to obey thesame (by (wrongfully) .)

(4) Dereliction in the performance of duties.In that , (personal jurisdiction da-

ta), who (knew) (should have known) of his/her du-t i e s ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - m a t t e rj u r i s d i c t i o n d a t a , i f r e q u i r e d ) , ( o n o ra b o u t 2 0 ) ( f r o ma b o u t 2 0 t oa b o u t 2 0 ) , w a s d e r e l i c t i n t h ep e r f o r m a n c e o f t h o s e d u t i e s i n t h a t h e / s h e( n e g l i g e n t l y ) ( w i l l f u l l y ) ( b y c u l p a b l e i n e f f i c i e n c y )failed , as it was his/her duty to do.

17. Article 93—Cruelty and maltreatmenta. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o i sg u i l t y o f c r u e l t y t o w a r d , o r o p p r e s s i o n o rmaltreatment of, any person subject to his ordersshall be punished as a court-martial may direct.b. Elements.

(1) That a certain person was subject to the or-ders of the accused; and

(2) That the accused was cruel toward, or op-pressed, or maltreated that person.

c. Explanation.

(1) Nature of victim. “Any person subject to hisorders” means not only those persons under the di-rect or immediate command of the accused but ex-tends to all persons, subject to the code or not, whoby reason of some duty are required to obey thelawful orders of the accused, regardless whether theaccused is in the direct chain of command over theperson.

( 2 ) N a t u r e o f a c t . T h e c r u e l t y , o p p r e s s i o n , o rm a l t r e a t m e n t , a l t h o u g h n o t n e c e s s a r i l y p h y s i c a l ,must be measured by an objective standard. Assault,improper punishment, and sexual harassment mayconstitute this offense. Sexual harassment includesinfluencing, offering to influence, or threatening thecareer, pay, or job of another person in exchange forsexual favors, and deliberate or repeated offensivecomments or gestures of a sexual nature. The impo-sition of necessary or proper duties and the exactionof their performance does not constitute this offense

IV-25

¶17.c.(2)


lawful orders - the manual for courts-martial and the case of lt col terrence lakin

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