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|NLIKE THE OFFENSES of unauthorized absence and theft discussed elsewhere in this series, each of which is incorporated under one article of the Code, offenses involving disobedience of orders are set forth in three separate articles: UCMJ Articles 90, 91 and 92. All disobedience offenses notwithstanding their differences require the Government to prove generally that there was a lawful order issued to the accused which he did not obey. The disobedience contemplated under Article 92 is a mere failure to obey (perhaps through neglect), while the gravamen of the offense under Articles 90 and 91 lies not so much in the fact that some lawful order was disobeyed but in the fact that disobedience under the circumstances amounted to an intentional defiance of superior authority. This defiance, when directed toward an officer (Article 90) is deemed sufficiently serious to authorize the death penalty in time of war. Thus, disobedience in the eyes of the military is classed with mutiny, desertion, aiding the enemy, etc.

The three articles as they apply to our subject are:

ARTICLE 90: Any person subject to this code who willfully disobeys a lawful command of his superior officer, shall be punished. . . .

ARTICLE 91: Any warrant officer or enlisted person who willfully disobeys the lawful order of a warrant officer, non-commissioned officer, or petty officer, shall be punished.

...

Harold B. Happy, on liberty celebrating his recent advancement to BM3, returned to his ship around 2300 on 10 May 1960 for the purpose of obtaining more cash. He walked confidently past the quarterdeck watch, a seaman named Will Watchful, who, not recognizing his shipmate, ordered him to stop and identify himself. Happy merely grinned, winked at Watchful and without slowing down proceeded past the watch shack. Watchful then notified the OD, Ensign Alert, who after a brief search found Happy on the fantail. Ensign Alert recognized Happy as a Boatswain from the Second Division whose cavalier attitude at a recent Captain's Mast had singled him out from the others who had appeared before the Old Man. Ensign Alert ordered Happy to surrender his liberty card and when Happy made some comment about “who needs a liberty card", Ensign Alert ordered Happy below to repair to his compartment. stead, Happy walked in the opposite direction, with his back toward Ensign Alert and after some delay took a sip from what looked like a brown whiskey bottle and tossed the bottle overboard. He was heard to say "Let's let the fish celebrate, too." Ensign Alert again ordered Happy below. Whereupon Happy grinned submissively at the OD and hurried forward down the ladder toward the Second Division Compartments.

In

The day after this occurrence you are notified that Happy will be tried by special court-martial and that you are trial counsel. Armed with the Manual for Courts-Martial and a copy of The Law Officer (Dept. of Army Pamphlet No. 27-9 of April 1958) you examine the charges and specifications and find them to be in proper form as follows:

CHARGE I: Violation of the Uniform Code of Military Justice, Article 90.

SPECIFICATION: In that Harold B. Happy, boatswain's mate third class, U.S. Navy, U.S.S. Temperance, having received a lawful command from Alfred Alert, Ensign, U.S. Navy, his superior officer, to surrender his liberty card to the said officer, did, on board said ship on or about 10 June 1960 wilfully disobey the same.

CHARGE II: Violation of the Uniform Code of Military Justice, Article 92.

SPECIFICATION 1. In that Harold B. Happy, boatswain's mate third class, U.S. Navy, U.S.S. Temperance, having knowledge of a lawful order issued by Will Watchful, seaman, U.S. Navy, a quartermaster of the watch of said ship, to "stop and identify yourself", or words to that effect, an order which it was his duty to obey, did, at the quarterdeck aboard said ship, on or about 10 June 1960, fail to obey the same.

(Continued on page 54)

Captain Munster is Assistant Judge Advocate General for Personnel, Reserve and Planning, and is the Public Information Officer for the Office of the Judge Advocate General. During his prior duty as Commanding Officer, School of Naval Justice, that School was expanded to include U.S. Army enlisted personnel, thus becoming an all-service institution. Captain Munster has served tours of duty as District Legal Officer in the Fifteenth and Thirteenth Naval Districts, and with the Office of the Chief of Naval Operations. During World War II he was assigned security duties in connection with several Naval Operating Bases, Facilities and Stations in the Pacific Ocean areas and the Aleutians. For three years he was special lecturer on law at the National Naval Medical Center while serving as General Inspector in the Office of the Judge Advocate General. A graduate of the University of Texas Law School, Captain Munster also holds the degrees Master of Arts and the Doctor of Juridical Science. He is a member of the Texas and American Bar Associations, the Federal Bar Association and the American Economics Association.

Captain Carnes, Assistant Judge Advocate General for International and Administrative Law, was formerly District Legal Officer of the Twelfth Naval District and Legal Officer on the Staff of the Commander, Western Sea Frontier. Among his earlier assignments are tours of duty with the Bureau of Naval Personnel and the Sixth Naval District as District Legal Officer. From 1953 until 1956, Captain Carnes served as Director of the Legislative Division, Office of the Judge Advocate General, which, prior to the establishment of the Office of Legislative Liaison, was responsible for the Navy Department legislative liaison. Called to active duty prior to World War II, Captain Carnes served in destroyers during combat operations in the South Pacific and later on the staff of the Commander Destroyers, Pacific Fleet, where he received the Bronze Star Medal for meritorious service. A graduate of Georgia Tech and member of the first class to be commissioned following the creation of the Naval ROTC program, Captain Carnes later graduated from the Emory University Law School. He is a member of the Georgia and American Bar Associations, the Federal Bar Association and the American Society of International Law.

CAPTAIN MACK K. GREENBERG, USN

CAPTAIN JOE H. MUNSTER, USN

Captain Greenberg, Assistant Judge Advocate General for Military Justice was formerly the Assistant Judge Advocate General for Personnel, Reserve and Planning. Among his prior duty assignments have been tours with the School of Naval Justice as executive officer and the District Legal Officer, Potomac River Naval Command. As Staff Legal Officer for Commander Service Force, U.S. Atlantic Fleet, Captain Greenberg organized and coordinated the first Atlantic Fleet Seminar on Discipline and the Uniform Code of Military Justice. While in the Office of the Judge Advocate General, he developed the concept of the JAG Task Force to help provide qualified lawyers for Commands where legal talent was not otherwise available. During World War II he was awarded the Bronze Star Medal for meritorious service aboard the USS KASAAS during the invasion of southern France. A graduate of Boston University School of Law, Captain Greenberg is a member of the Massachusetts Bar and the Massachusetts Law Society, the Federal Bar Association, the American Bar Association and the Judge Advocates Association. He is admitted to practice before the Circuit Court of Appeals for the District of Columbia, the U.S. Supreme Court and the U.S. Court of Military Appeals.

DISOBEDIENCE

(Continued from page 51) SPECIFICATION 2: In that Harold B. Happy, boatswain's mate third class, U.S. Navy, U.S.S. Temperance, did, on board said ship, on or about 10 June 1960, violate a lawful general regulation, to wit: Article 1269, United States Navy Regulations, dated 9 August 1948, by possessing alcoholic liquor for beverage purposes aboard said ship.

The burden is now upon you, as trial counsel representing the Government, to prove beyond a reasonable doubt, each and every element of the offenses set forth. Certain questions come to mind. What exactly must the trial counsel prove? What evidence must be obtained and presented in this proof? Who should be called as witnesses? What possible defenses should be anticipated? And of overall importance, how should all of the foregoing be accomplished?

ARTICLE 90

THE TRIAL COUNSEL soon discovers that finding what to prove offers a minimum of difficulty. Reference to the above mentioned publications-pages 320-324 of the Manual for Courts-Martial and pages 84-86 of The Law Officer reveals, for example, that the article 90 offense requires proof, (a) that the accused received a certain lawful command from a certain officer, as alleged in the specification; (b) that such officer was the superior commissioned officer of the accused; (c) that the accused knew the command was from his superior officer; 1 and (d) that the accused willfully disobeyed the command.

1

That the officer was the accused's superior commissioned officer may be readily proved by having that witness merely state his rank, organization and relation to the accused. That the accused received a lawful command can be proved by the witness' testimony as to what he said. Since there is a presumption that commands issued by a superior officer are lawful, lawfulness need not be shown except where the accused presents evidence that the order was illegal. The element of willful disobedience may be proved by direct evidence of the accused's action after the command was given. For example:

Trial Counsel: After you gave the command, what, if anything, did the accused do?

Answer: Instead of handing me the liberty card as I had directed, he turned and walked away.

Such evidence that an act was done knowingly

1. U.S. v. Miller, 2 USCMA 194, 7 CMR 70 (1953); U.S. v. Simmons, 1 USCMA 691, 5 CMR 119 (1952); U.S. v. Wallace, 2 USCMA 595, 10 CMR 93 (1953).

ness.

and purposely easily meets the test of willfulThe remaining element-knowledge of Ensign Alert's officer status-can hardly be proven by direct evidence short of an admission by the accused. We therefore must turn for proof to the circumstances surrounding the incident. Circumstantial evidence that the accused knew a person was his superior officer may be obtained from the answer to certain questions:

(1) How was the officer dressed?

(2) Did the accused look directly at the officer?
(3) Did the officer identify himself?

(4) Did the accused say "Sir”, “Mr.”, “Lieutenant”,
etc.?

(5) How far apart were the two?

(6) Did the accused salute?

(7) How long has the accused known the officer? (8) Where did the incident occur?

(9) What is the accused's Navy experience (recruit or chief)?

(10) Generally, did the accused do any act or make any

statement indicative of his relation to the officer? In our case the accused's compliance with the second order to go below to his compartment is strong circumstantial evidence that he recognized the authority of his superior officer. Even the fact that Happy threw away the bottle could infer knowledge on his part that someone in authority was present. Under any given fact situation the trial counsel will have to unearth such circumstantial evidence and bring it out on direct examination. During arguments he should give special emphasis to this evidence, pointing out precisely all inferences which have been properly raised.

IN LIGHT OF the accused's not guilty plea, advance notice of which has been properly given, a defense to the charges is anticipated. Lack of the requisite knowledge or intent due to intoxication stands out as the most likely one available. Unfortunately for the accused, he must as a practical matter, testify in his own behalf if such an assertion is to be successful. Whether he will testify to a total loss of memory concerning the incident or to a "convenient" lack of detail cannot be foreseen; however, the trial counsel must be prepared to explore either theory through cross-examination. Before trial, all parties with whom the accused associated both before and after the incident will have been interviewed. Discrepancies between their expected testimony and the accused's version should be noted and thoroughly covered. How much he had drunk, his ability to walk or to speak coherently, the exact period of his mental lapse and the frequency of such mental lapses

in the past may be interesting areas of exploration. Should his testimony appear convincing and unshakable, detailed cross-examination may be discreetly abandoned. Resort to witnesses in rebuttal. One reliable witness with whom the accused has discussed the incident as only a "knowing" accused could, could well destroy the defense's entire theory. Regardless of how the testimony develops, the defense must ultimately raise a reasonable doubt as to the accused's mental competency. Showing that he was mentally incapable (1) of entertaining a specific intent to defy authority or (2) of knowing his superior officer, is up to the defense. Of course, the burden of proof of the offense never shifts from the government.

ARTICLE 91

ARTICLE 91 OFFENSES INVOLVE essentially the same problems and methods of proof as does the offense just discussed; the only major difference between the two being the personnel to whom each is applicable. It should be noted, however, that unless the senior giving the Article 91 order is in the execution of his office at the time, there is no presumption that the order is lawful. The test here is whether the senior is engaged in any act or service required or authorized to be done by him by statute, regulation, the order of a superior or military usage; or generally, whether he has a duty to maintain discipline over the subordinate. Because of the breadth of such a test, defenses on this point are infrequently raised and are even more infrequently successful.

ARTICLE 92

PROVING OUR FIRST specification under this article requires evidence that (1) a lawful order to "stop and identify yourself" was issued to the accused by Will Watchful, a member of the armed forces, (2) the accused knew of the order, (3) it was the duty of the accused to obey the order and (4) the accused failed to obey the order as alleged. The first and last of these elements is established in much the same manner as in the Article 90 offense. Our material witness will, of course, be Will Watchful.

The witness particularly should be interviewed concerning knowledge of his watch. duties and of any written or oral orders granting him authority to act. Whether or not he was authorized to issue the order affects the validity of our entire specification, for without such authority, the order is illegal and hence unenforceable. Testimony that on 10 June our witness had the quarterdeck watch, that certain

duties (enumerated) are required of watch standers, and that the accused came aboard as has been set forth would adequately establish the requisite authority for the order given. If contest on an issue of this type is anticipated, however, trial counsel must be prepared to offer any regulations or orders into evidence or to call any witness who may have given such authority through oral directive. As to applicable regulations set forth in the Standard Ships Organization and Regulation Manual, the court could be requested to take judicial notice of the same.2

The accused's duty to obey depends upon the legality of the order which in turn is dependent upon the authority and circumstances, as stated above. An instruction to this effect, given by the president after he has set forth the elements of the offense, is as follows:

"You are further advised in this connection that an order issued to another by a member of the armed forces is lawful if it relates to a military duty and is one which the member of the armed forces is authorized under the circumstances to give. When such an order is lawful, the person to whom it is issued has a duty to obey it if he knows of the order." " Assisted by this instruction, the trial counsel should have no difficulty in proving the third element the duty of the accused to obey.

4

Failure in proof of our remaining element, knowledge of the order, is probably the most often asserted defense to an Article 92 (2) charge. Although the Manual would allow proof of knowledge constructively, that is by showing the accused should have known of the order had he exercised ordinary care, the Court of Military Appeals in U.S. v. Curtin 5 ruled that such constructive knowledge has no place in an Article 92 offense. The trial counsel instead, must prove that the accused had actual knowledge of the order. This proof may however be by direct or circumstantial evidence. We have already discussed proof of knowledge by circumstantial evidence. In the case at hand, Watchful would testify that he had the accused's attention (because the accused turned toward him or because he stepped in front of the accused, whatever the case may be) and that the order was given in a voice sufficient to be heard. If by chance, other persons heard the command they should be called to so testify, stating their relative distances from other witnesses and the accused.

2. MCM 1951, par. 147a.

3. The Law Officer, Appendix I, p. 86.; See also Appendix II, p. 132. 4. MCM 1951, par. 154a (4).

5. 9 USCMA 427, 26 CMR 207 (1958).