2007
United
States v. Mack, 65 M.J. 108 (when the
legality of an order is at issue, the issue must be decided by the
military judge, not the court-martial panel).
(when the defense moves to
dismiss a charge on the grounds that the charged order was not lawful,
the military judge must determine whether there is an adequate factual
basis for the allegation that the order was lawful).
(if the military judge rules
that a specific set of words would constitute a lawful order under a
specific set of circumstances, that is a preliminary ruling that does
not relieve the prosecution of its responsibility during its
case-in-chief of proving beyond a reasonable doubt the facts necessary
to establish the elements of the offense).
(the military judge erred by
treating the legality of a pretrial restriction order as a mixed
question of fact and law to be resolved by the court members; as a
matter of law, the presence of factual questions did not relieve the
military judge of his responsibility to decide, as a preliminary
matter, whether the order in the charged breaking restriction offenses
was lawful).
(the essential attributes of a
lawful order include: (1) issuance by competent
authority; (2) communication of words that express a specific mandate
to do or not do a specific act; and (3) relationship of the order to a
military duty; an order is presumed lawful, and the accused bears the
burden of rebutting the presumption).
2006
2003
United
States v. Thompkins, 58 MJ 43 (a service member
who,
contrary to the terms of a no-contact order, initiates contact is
subject to
punishment under either Article 90 or Article 92, UCMJ, 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).
2002
United
States v. Washington, 57 MJ 394 (a servicemember
charged
with a disobedience offense may challenge the lawfulness of the order
on a
variety of grounds, e.g., that the order directed the commission of a
crime; that
the issuing officer lacked authority; that the order did not relate to
a
military duty; that it interfered with private rights or personal
affairs
without a valid military purpose; that it was solely designed to
achieve a
private purpose; that it conflicted with a person’s statutory or
constitutional
rights).