UCMJ Article 90

Elements of Article 90 UCMJ 

1. That the accused received a lawful command from a superior officer;
2. That this officer was the superior commissioned officer of the accused;
3. That the accused then knew that this officer was the accused’s superior commissioned officer; and
4. That the accused willfully disobeyed the lawful command. [If the offense is committed in a time of war, the following additional element should be present as well]
5. That the offense was committed in a time of war.

Explanation of Terms

1) The Order must be directed to the accused specifically. It does not include violations of regulations, standing orders, or routine duties. Examples include:

• 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 Article 90 but did support a conviction under UCMJ Article 92. Overruled on other grounds.¹
• United States v. Gussen, 33 M.J. 736 (A.C.M.R. 1991) – Evidence that the accused willfully disobeyed an order issued by the brigade commander to the entire brigade, but was relayed to the accused through non-commissioned officers (NCOs). Only supports a violation of orders under Article 92 and NOT a 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) The Order must be in a proper form. If understandable, the form of the order and the method of transmittal are immaterial. For example, in the case of United States v. McLaughlin, 14 M.J. 908 (N.M.C.M.R. 1982), the use of the word “please” does not negate the order.

3) Scope of Order. To sustain the presumption of the lawfulness of an order, the order must have a valid military purpose and must be a clear, narrowly drawn mandate. This can be made evident in the case of United States v. Moore, 58 M.J. 466 (2003), which held that a “sufficiently clear, specific, and narrowly drawn” order with a valid military purpose was not unconstitutionally overbroad or vague.

4) Specificity of Order. The order must be a specific mandate to do or not to do a specific act. If the language of a communication lacks specificity of meaning, extrinsic evidence is admissible for the purpose of clarification. Examples include:

• 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. 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;
• United States v. Warren, 13 M.J. 160 (C.M.A. 1982) – The statement “settle down and be quiet” was ambiguous and lacked the specificity of meaning to determine if it was an order or mere counseling;
• United States v. Beattie, 17 M.J. 537 (A.C.M.R. 1983) – Where superiors of the intoxicated accused did not want him at his assigned place of duty (which was the motor pool). The lieutenant’s order for the defendant to report to his place of duty without further clarification as to where that was did not provide a clear enough mandate to establish a violation under Article 90.

5) Lawfulness of the Order. An order requiring the performance of a military duty or act may be inferred to be a lawful order. The lawfulness of the order is a question of law that must be decided by the military judge. For example, see the following:

• 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.²

Prospective clients call Aden Wilkie all the time about an illegal order they have been given. He reminds them of the presumption that all orders given are lawful until proven otherwise (absent the order clearly being an illegal one that calls for the recipient to do something illegal, such as shoot unarmed villagers, for example).

b. Knowledge of the Order –

1) The prosecution must prove, as an element of the offense, that the accused had actual knowledge of the order.³ Although knowledge may be proven by circumstantial evidence, the knowledge must be actual and not constructive.⁴

2) The prosecution must prove that the accused had actual knowledge of the status of the victim. For example, in the case of United States v. Young, 40 C.M.R. 36 (C.M.A. 1060), voluntary intoxication raised the issue of whether the accused knew he was dealing with his superior officer.⁵

c. Willfulness of Disobedience –

1) Disobedience must be intentional defiance of authority. Failure to comply through heedlessness or forgetfulness is not “willful”, although it may still violate Article 92.

2) Intentional noncompliance, not “flaunting of authority,” is required.⁶

3) Voluntary intoxication might prevent the accused from having the willful state of mind required by Article 90. 

d. Origin of the Order –

1) The alleged victim must be personally involved in the issuance of the order. For example, in the case of United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009), a revocation of driving privileges issued without the knowledge or involvement of the Base Traffic Officer was not sufficient for the purposes of Article 90, but did support a conviction under Article 92. 
2) The order must originate from the alleged victim and not be the order of a superior for whom the alleged victim is a mere conduit. Examples include:

• 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.”

e. Time for Compliance –

1) When an order requires immediate compliance, an accused’s statement that he will not obey 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 the victim to orderly room, as disobedience to the first order was already completed;
• 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 implicitly indicates that delayed compliance is authorized or directed. However, when the time for compliance is not stated explicitly or implicitly, then reasonable delay in compliance does NOT constitute disobedience.

• 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.⁷
• 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 to whom 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 recipient must begin the preliminary steps immediately or the disobedience is complete.

• United States v. Wilson, 17 M.J. 1032 (A.C.M.R. 1984)⁸ – 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 the lieutenant’s office.

5) Apprehension of an accused before compliance is due is a legitimate defense to the alleged disobedience.⁹ 
6) If an order is to be performed in the future, the accused’s present statement of intent to disobey does not constitute disobedience.¹⁰

What is the Punishment for Willfully Disobeying Superior Commissioned Officer?

A service member convicted of willfully disobeying a superior commissioned officer faces incredibly harsh consequences. The maximum punishment for violating UCMJ Article 90 includes confinement for up to 10 years, total forfeiture of all pay and allowances, and a Dishonorable Discharge. If the accused’s conduct occurred during times of war, the potential penalties may even warrant capital punishment.

As you can see, there is quite a lot at stake for service members facing a UCMJ Article 90 violation charge, and military prosecutors will push hard for a conviction. This makes it all the more important for members of the armed forces to receive strong legal counsel from an unbiased criminal defender. Having someone who doesn’t have a horse in the race (meaning they are uninfluenced by the military chain of command) and whose sole purpose is to protect you, your freedom, and your constitutional rights can be the single most important decision you make when facing charges of this nature.

UCMJ Article 90 Defenses

When you obtain the help of a civilian defense attorney like Aden Wilkie, he will explore all potential legal avenues in order to craft the strongest and most effective defense for your individual case. Below, he covers some of the more common defenses for Article 90 violations.

1) The order cannot lack content and must be a specific mandate.

1) The order cannot lack content and must be a specific mandate.

• United States v. Bratcher, 39 C.M.R. 125 (C.M.A. 1969) – Finding disobedience to a nonspecific mandate was not punishable under Article 90. In this case, a soldier disobeyed an order that did not contemplate performance or nonperformance of any special function, but rather was an order to do what he was already required to do as a soldier under a superior’s command – not an enforceable order;
• 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. Beattie, 17 M.J. 537 (A.C.M.R. 1983) – Order to “follow the instructions of his NCO’s” lacked content.

2) “Ultimate offense” doctrine.

a) 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);
• 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;
• United States v. Phillips, 74 M.J. 20 (C.A.A.F. 2015) – Commander ordered the accused who repeatedly absented himself without leave to avoid disciplinary proceedings to remain on post; absent evidence that commander issued the order to escalate the accused’s criminal liability, the government was free to choose between charging a violation of the order or breaking restriction.

b) 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 (C.A.A.F. 1999) – Failure to report for restriction improperly charged as disobeying order, although it should have been charged as failure to go to appointed place of duty;
• 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.

c) 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) – Willful disobedience of superior of lawful orders from superior petty officer and superior commissioned officer);
• United States v. Bivins, 34 C.M.R. 527 (A.B.R. 1964).

Military Defense Attorney for Article 90 Violations

Those who are found guilty of violating Article 90 of the UCMJ have a lot to lose, which is why they need someone in their corner who knows the military legal code through and through and whose only concern is fighting as hard as possible for their rights, freedom, and future. While free, a military-appointed JAG criminal defense attorney often faces undue influence from a superior military chain of command. This means they tend to consider their own concerns and interests before their client’s. Civilian criminal defense lawyers like those at The Wilkie Law Group are able to work with the freedom of legal maneuver, with no threat to their own rank or position, and with only their client’s best interest at heart.

If you are under suspicion or charged with failing to obey the lawful orders of a commissioned superior officer, a qualified civilian criminal defense attorney like the Devil Dog Defender, Aden Wilkie, can help. In addition to creating a strong legal defense and handling all court martial and military criminal justice matters, Aden can also provide superior military discharge upgrade counsel and record correction services. Located in Jacksonville, NC, Aden Wilkie works with service members at Camp Lejeune, Fort Bragg, and other military installation locations and camps, bases, camps, stations, and posts across the nation.

Please keep in mind that this article is for general information purposes. Once an attorney-client relationship with Aden Wilkie is established, you will be able to learn more about your legal options regarding your unique case. Call (910) 548-7846 today for a consultation or complete our online intake form to learn more.

Footnotes

1. United States v. Phillips, 74 7M.J. 20 (C.A.A.F. 2015)
2. United States v. New, 55 M.J. 95 (C.A.A.F. 2001)
3. United States v. Shelly, 19 M.J. 325 (C.M.A. 1985)
4. United States v. Pettigrew, 41 C.M.R. 191 (C.M.A. 1970)
5. United States v. Oisten, 33 C.M.R. 188 (C.M.A. 1963)
6. United States v. Ferenczi, 27 C.M.R. 77 (C.M.A. 1958)
7. Aff’d, 37 M.J. 338 (C.M.A. 1993)
8. Pet. denied, 19 M.J. 79 (C.M.A. 1984)
9. United States v. Williams, 39 C.M.R. 78 (C.M.A. 1968)
10. United States v. Squire, 47 C.M.R. 214 (N.C.M.R. 1973)

Contact an Article 90 Counseling Attorney

It is vital to use the knowledge of a seasoned attorney to organize and prioritize the material to present to the command. Call The Wilkie Law Group at (910) 548-7846 to arrange your consultation.