2020 (October Term)
United States v. Mader, 81 M.J. 105 (consent is not a defense to hazing charged as a violation of a general order).
2017 (October Term)
United States v. Blanks, 77 M.J. 239 (under the UCMJ, a servicemember who is derelict in the performance of his duties shall be punished as a court-martial may direct; although the statute does not explicitly identify a mens rea for this offense, negligence is an authorized level of mens rea for an Article 92(3), UCMJ, dereliction of duty offense).
(dereliction of duty is a uniquely military offense specifically intended by Congress to ensure the proper performance of duty within the military service; servicemembers’ military duties relate to activities which are reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and are directly connected with the maintenance of good order in the services; thus, the dereliction of duty offense promotes good order and discipline in the military; in light of the military nature of the offense and its limited authorized punishment, a negligence mens rea standard is appropriate for certain dereliction offenses).
(military law maintains obedience and discipline to ensure that servicemembers are ready to perform their mission; a negligent dereliction of duty offense provides commanders with one means to assure that the objectives of the military mission are achieved by holding servicemembers accountable for performance of their military duties whether by court-martial or nonjudicial punishment under Article 15, UCMJ).
United States v. Pugh, 77 M.J. 1 (the offense of dereliction in the performance of one’s duties requires that the following elements be proven: (a) that the accused had certain duties; (b) that the accused knew or reasonably should have known of the duties; and (c) that the accused was willfully or through neglect or culpable inefficiency derelict in the performance of those duties; the duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service; a lawful military order must: (1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn; to have a valid military purpose, an 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).
(an Air Force instruction banning all legally available commercial food products containing hemp seed and hemp seed oil sold and regulated in the US was overly and inappropriately broad as it pertained to FDA approved food products; the blanket ban did not advance the military purpose of ensuring military readiness by protecting the reliability and integrity of the drug testing program; ingesting legally available commercial food products such as Strong & KIND bars did not represent a threat to the integrity and accuracy of the Air Force Drug Testing Program because commercially available US food products containing hemp seeds did not contain enough THC detectable at the levels proscribed by DoD; although the Air Force had a legitimate concern in prohibiting hemp food products that contain enough THC to trigger a positive drug test, banning legal, properly labeled food products well regulated by the US government under the guise of protecting airmen from unlabeled, unregulated, illegal food products was well beyond the government’s stated purpose for the ban; the regulation was overbroad because appellant’s act of consuming Strong & KIND bars could not interfere with the Air Force Drug Testing Program, and as such, the regulation was an insufficient basis to support a charge of dereliction when it applied to legal, FDA-approved food products).
2016 (October Term)
United States v. Haverty, 76 M.J. 199 (when construing an order — a violation of which underlies an Article 92, UCMJ, offense — commanders should be held to the same standard as legislatures when determining whether they intended to create an offense that does not require the government to prove an accused’s mens rea; that is, they must speak with a clear voice on the matter; when a commander fails to do so, the criminal offense is interpreted as including broadly applicable scienter requirements; accordingly, in such cases, the proper level of mens rea is only that necessary to separate wrongful conduct from otherwise innocent conduct).
(in order for conduct to be prosecuted for an Article 92, UCMJ, violation as hazing under Army Regulation 600-20, that conduct must consist of any form of initiation rite of passage or congratulatory act).
(the minimum mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing is recklessness).
(the elements of hazing under AR 600-20 are as follows: (1) conduct (2) that unnecessarily causes another (3) to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; recklessly is the sufficient mens rea for this offense; pursuant to this mens rea requirement, in order for an accused to be convicted under Article 92, UCMJ, for a violation of AR 600-20 para. 4-20, the accused must have consciously disregarded a known risk that his or her conduct would unnecessarily cause another military member or employee to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; in this regard, a servicemember who honestly believes that an activity is not cruel, abusive, oppressive, or harmful could not be held criminally liable; the recklessness standard is sufficient to separate wrongful conduct from innocent conduct in prosecutions under AR 600-20 para. 4-20).
2015 (September Term)
United States v. Gifford, 75 M.J. 140 (the elements for violating a lawful general order under Article 92, UCMJ, where the general order prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption required the government to prove both that (a) appellant provided alcohol with the intent that it be consumed and (b) appellant knew that the individuals to whom he was providing the alcohol were under 21 years of age; the general order at issue required the government to prove appellant’s mens rea (guilty mind) with respect to the age of the recipients of the alcohol, and at a minimum the government was required to prove, at a minimum, that appellant acted recklessly in this regard).
(the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status).
(on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent).
(the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, Congress may purposefully omit from a statute the need to prove an accused’s criminal intent, and courts are then obligated to recognize this congressional intent and conform their rulings accordingly; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment).
(it is true that actual knowledge of the existence of a general order is not typically required under Article 92, UCMJ; however, this tenet merely reflects the long-recognized maxim ignorantia juris non excusat— ignorance of the law excuses no one; the fact that actual knowledge of a general order is typically immaterial does not conflict with the coordinate truth that mens rea typically is an essential element of every criminal offense; this case involves a mistake of fact as to age, not a mistake of law, and as the Supreme Court in Elonis v. US, 135 SCt 2001 (2015), held, an accused generally must know the facts that make his conduct fit the definition of the offense).
(whether mens rea is a necessary facet of the crime is a question of legislative intent to be construed by the court; if such an intent can be identified, courts must construe the relevant statute accordingly).
(in this case, in issuing a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption, the commander, acting pursuant to his congressionally delegated authority under Article 92, UCMJ, did not create a public welfare offense through his general order where he did not explicitly indicate his intention to create a public welfare offense and there was no other basis to conclude that this general order, which stands mute on the subject, was intended to override the traditional call of criminal law that wrongdoing must be conscious to be criminal).
(the CCA erred in concluding that a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption did not include a mens rea requirement with respect to age where (1) a mens rea requirement is the rule rather than the exception in criminal offenses, even in those instances when a statute is silent on that point, (2) there was a lack of any overt evidence that the commander intended to create a public welfare offense, and (3) such an intent on the commander’s behalf cannot be inferred, given the historical context of alcohol offenses, the underlying character of the offense, and the gravity of the punishment; in other words, the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of appellant’s conviction for violating a general order was whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under 21 years of age).
(the level of mens rea that the CCA should have used in the course of its Article 66(c), UCMJ, review of a conviction for violating a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption was recklessness where (1) recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct, (2) intuiting recklessness into the general order is the greatest stride a court can take before stepping over the line that separates interpretation from amendment, and (3) both the Model Penal Code and state courts across the country confirm the propriety of a recklessness standard in this context).
United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid).
(a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy).
(in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose).
2011 (September Term)
United States v. Hayes, 71 M.J. 112 (the elements of Article 92(3), UCMJ, dereliction of duty, are as follows: (1) that the accused had certain duties, (2) that the accused knew or reasonably should have known of the duties, and (3) that the accused was willfully, or through neglect or culpable inefficiency, derelict in the performance of those duties).
(Article 92(3), UCMJ, dereliction of duty, requires the existence of a duty; the MCM states that the duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service; all of the examples of duties listed in the MCM constitute military-specific duties; CAAF has never affirmed a conviction for dereliction of duty imposed by state law alone).
(Article 92(3), UCMJ, dereliction of duty, requires proof of certain military duties; it does not assume such duties).
(evidence that appellant consumed alcohol in a hotel room and the hotel’s casino while under the age of 21 was legally insufficient for a conviction under Article 92(3), UCMJ, dereliction of duty, where the government failed to establish through competent evidence that there was a specific military duty under Article 92(3), UCMJ, to either obey state laws in general, or, more specifically, the Nevada state law prohibiting consumption of alcohol by persons under the age of 21 in any saloon, resort, or place where alcohol is sold; although it was uncontested that consuming alcohol in any saloon, resort, or place where alcohol is sold while under the age of 21 was a violation of Nevada state law, when the evidence in the record was viewed in the light most favorable to the prosecution, it was insufficient for any rational trier of fact to conclude that appellant was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law, or in the alternative, all state laws in Nevada - an obligation imposed on all citizens within the state generally).
United States v. Goodman, 70 M.J. 396 (because the violation of a general regulation is a general-intent offense, mistake of fact is not a defense unless the mistake is both honest and reasonable; the honest belief prong is subjective, while the reasonableness prong is objective).
2009 (September Term)
United
States v. Harmon, 68 M.J. 325 (willful
dereliction of duty requires: (1) that the
accused had certain duties; (2)
that the accused knew or reasonably should have known of the duties;
and (3)
that the accused was willfully derelict in the performance of those
duties).
United
States v. Ranney, 67 M.J. 297 (although the
evidence was legally
insufficient to support a finding of guilty of willfully disobeying a
superior
commissioned officer’s order revoking appellant’s driving privileges
where base
security forces issued the order in a form letter under the signature,
and with
the authority of the base traffic review officer, but without his
personal
involvement or knowledge, the evidence was legally sufficient to affirm
a
finding of guilty to the lesser included offense of failure to obey an
order,
in violation of Article 92, UCMJ).
(the essential
attributes of a lawful order
that sustain the presumption of lawfulness include:
(1) issuance by competent authority – a
person authorized by applicable law to give such an order; (2)
communication of
words that express a specific mandate to do or not do a specific act;
and (3)
relationship of the mandate to a military duty; in light of the
presumption of
lawfulness, long-standing principles of military justice place the
burden of
rebutting this presumption on the accused).
(there is a
presumption that orders are lawful;
under this presumption, the servicemember challenging the order bears
the
burden of demonstrating the illegality).
(appellant,
charged with disobeying an order to
receive an anthrax vaccination, failed to rebut the presumption that
the order
to receive the vaccination was lawful; the National Institute of Health
licensed the vaccine for use against anthrax, and the Food and Drug
Administration has not actively decided to suspend or revoke the
license; the
vaccine’s license has never been suspended or revoked; and appellant
has not
shown that the license was erroneously granted).
(because
appellant failed to establish that the
anthrax vaccine is an investigational new drug or a drug unapproved for
its
applied use, the notice requirements of 10 U.S.C. § 1107 that require
the
Secretary of Defense to give servicemembers notice that such a new or
unapproved drug will be administered were not implicated by the order
to
receive the vaccine; additionally, Exec. Order 13,139, directing that
DoD
obtain informed consent from each individual to whom an investigational
new drug
is to be administered unless the Secretary of Defense can justify a
need for a
waiver of informed consent from the President, was not implicated by
the order
to receive the vaccine).
(the anthrax
vaccine is not an investigational
drug that would implicate 10 U.S.C. § 1107 or Exec. Order 13,139).
(viewing the
evidence in the light most
favorable to the prosecution, a rational trier of fact could have found
beyond
a reasonable doubt that appellant violated an Air Force recruiting
regulation by
engaging in verbal conduct of a sexual nature that created an
intimidating,
hostile, or offensive environment; comments need not be expressly or
explicitly
sexual to be of a sexual nature; sexual innuendo, or a recruiter’s
implied
invitation to an applicant that latently suggests sexual activity, may
be
sexual in nature).
(to withstand a
challenge
on vagueness grounds, a regulation must provide sufficient notice so
that a
servicemember can reasonably understand that his conduct is proscribed;
possible
sources of fair notice include: federal
law, state law, military case law, military custom and usage, and
military
regulations; training, pamphlets, and other materials may also serve as
sources
of notice because they may give context to regulations and explain the
differences between permissible and impermissible behavior).
(an Air Force
recruiting regulation prohibiting
sexual harassment of recruits was not unconstitutionally vague on the
ground
that it did not give fair notice that such conduct could be subject to
criminal
sanction; the regulation expressly stated that failure to observe its
prohibitions may result in punishment under Article 92, UCMJ, and that
compliance was mandatory; in addition, recruiter school placed
appellant on
notice that his conduct was subject to criminal sanction by instructing
him on
proper comportment with applicants and informing him of rules
prohibiting
sexual misconduct).
(an Air Force
recruiting regulation prohibiting
sexual harassment of recruits was not unconstitutionally vague as
applied to
conduct of appellant in placing his hand on an applicant’s knee while
riding
alone with her in a car, inviting an applicant to his apartment at
night to
take pictures, or telling an applicant that her appearance was driving
him
crazy and was so sexy; the regulation was clear that sexual conduct by
recruiters with applicants was prohibited and that recruiters must be
totally
professional in their relationships with applicants; it was not
necessary for
the regulation to identify every possible nook and cranny in the line
of
conduct, for the line is straight and narrow; given the evolving and
innumerable ways in which sexually offensive conduct may occur in the
recruiting context, the Air Force was not required, as a matter of law,
to
expressly set forth all conceivable instances of impermissible conduct;
the
language of the regulation provided ample discussion of the types of
behavior that
were prohibited and a reasonable person would have been on notice that
misconduct of the sort engaged in by appellant was subject to criminal
sanction).
2005
United
States v. Deisher,
61 M.J. 313 (when a servicemember is charged with violation of a lawful
order,
the legality of the order is an issue of law that must be decided by
the
military judge, not the court-martial panel).
(an
order is
presumed to be lawful, and the accused bears the burden of rebutting
the
presumption).
(the
essential
attributes of a lawful order include: (1) issuance by competent
authority
-- a person authorized by applicable law to give such an order; (2)
communication of words that express a specific mandate to do or not do
a
specific act; and (3) relationship of the mandate to a military
duty).
(an
accused may
challenge an order on the grounds that it would require the recipient
to
perform an illegal act or that it conflicts with that person’s
statutory or
constitutional rights).
(the
lawfulness
of an order, like other issues of law, may involve questions of fact
that must
be addressed by the military judge for the limited purpose of resolving
the
issue of law; the consideration of such factual matters by the military
judge
in the course of addressing an issue of law is distinct from, and does
not
preempt, the responsibility of a court-martial panel to address factual
matters
pertinent to the elements of an offense in the course of returning
findings on
the issue of guilt or innocence).
(when
the
defense moves to dismiss a charge on the grounds that the alleged order
was not
lawful, the military judge must determine whether there is an adequate
factual
basis for the allegation that the order was lawful; in the course of
acting on
such a motion, 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; the military judge’s ruling does not relieve the prosecution of
the
responsibility during its case-in-chief of proving beyond a reasonable
doubt
the facts necessary to establish the elements of the offense).
(the lawfulness of an order is
not an
element, but is an issue of law to be resolved by the military judge,
not
members; in this case, the military judge committed prejudicial error
in ruling
on the motion to dismiss by treating both the issue of lawfulness and
the
predicate factual aspects of the lawfulness issue as matters to be
resolved by
the members and by submitting the issue of lawfulness to the
members).
2003
United
States v. Moore, 58 MJ 466 (a superior’s order is
presumed
to be lawful and is disobeyed at the subordinate’s peril; nevertheless,
to
sustain this presumption, 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; moreover, the order may not conflict with the statutory or
constitutional rights of the person receiving the order and must be a
specific
mandate to do or not to do a specific act; in sum, an order is presumed
lawful,
provided it has a valid military purpose and is a clear, specific,
narrowly
drawn mandate).
(since United States v.
Wysong, 9 C.M.A. 249, 26 C.M.R. 29 (1958),
this
Court has refined its approach to orders, focusing more directly on the
specific conduct at issue in the context of the purposes and language
of the
order; for example, in United
States v. Womack, 29 M.J. 88 (C.M.A.
1989), the
Court held that a safe-sex order that arguably applied to civilians
having no
connection with the military was constitutional given appellant’s
specific
conduct, which did not violate the order in this way; given the Court’s
new
direction, in analyzing the no-contact order’s breadth in this case, we
decline
to follow Wysong and,
instead, employ the contextual approach favored
in
Womack).
(the Supreme Court has long recognized the principle that the
military is,
by necessity, a specialized society; the fundamental necessity for
obedience,
and the consequent necessity for imposition of discipline, may render
permissible within the military that which would be constitutionally
impermissible outside it; given this distinction, the weighing of First
Amendment considerations within the military is such that the right of
free
speech in the armed services is not unlimited and must be brought into
balance
with the paramount consideration of providing an effective fighting
force for
the defense of our Country; thus, military authorities may curtail a
servicemember’s communication and association with other individuals --
and
thus burden the servicemember’s freedom of speech and association --
provided
the authorities act with a valid military purpose and issue a clear,
specific,
narrowly drawn mandate).
(in this case where appellant was issued a no-contact order
directing him
not to converse in any way with any civilian employees of the galley,
appellant’s contact with the civilian employee involved the type of
unlawful,
service-discrediting conduct that may be prohibited by military orders;
given
the specific context in which the no-contact order was issued and the
manner in
which it was violated, the Court finds that the order was not
unconstitutionally overbroad in violation of the First Amendment).
(under the Due Process Clause of the Fifth Amendment, no one may be
required
at peril of life, liberty or property to speculate as to the meaning of
penal
statutes; all are entitled to be informed as to what the State commands
or
forbids; here, the central question of this "void for vagueness"
doctrine
is whether appellant had actual knowledge of the order’s nature and
terms, and
whether he was on fair notice as to the particular conduct which was
prohibited; void for vagueness simply means that criminal
responsibility should
not attach where one could not reasonably understand that his or her
contemplated conduct is proscribed; in evaluating the sufficiency of
notice,
the Court examines the order in light of the conduct with which
appellant was
charged).
(in this case, the order directed appellant not to converse in any
way with
any civilian employees of the galley; the order was sufficiently clear
and
certain to have informed appellant that to speak with any civilian
employee of
the galley was to violate the order; because the order’s language was
sufficiently
clear, specific, and narrowly drawn under the circumstances of this
case, the
Court finds that the order was not unconstitutionally vague and
indefinite in
violation of the Fifth Amendment).
2002
United
States v. Jeffers, 57 MJ 13 (in considering
challenges to
the breadth of an order, Court will examine the specific conduct at
issue
rather than the theoretical limits of the order).
(an order to have no social contact with a given individual was
definite,
specific, and importantly, uncontested by defense counsel at trial;
there was
absolutely no restriction on appellant’s ability to communicate with
that
individual, the company clerk, on official business).
(order to have no social contact with a named person did not inhibit
appellant’s ability to prepare his defense; nothing in the order could
have
been interpreted as restricting appellant’s access to that person, a
potential
witness against him, so long as the meeting with that individual was
official
business, and there were no facts developed at trial, either through
motions,
objections or testimony, that showed the order interfered with an
attorney-client relationship, or impaired defense counsel’s trial
preparation).
(evidence that appellant violated an order to have no social contact
with a
given person was legally sufficient; the length of time that person
remained in
appellant’s room, coupled with the fact that the contact between
appellant and
the named person ended only after a noncommissioned officer discovered
that
person in appellant’s room and removed her, are consistent with the
specification’s allegation that appellant’s contact with the individual
was
social, in violation of the commander’s order).
(questions of the applicability of a rule of law to an undisputed
set of
facts are normally questions of law; the legality of an act is normally
a
question of law – "lawfulness" is a question of law).
2001
United
States v. New, 55 MJ 95 (lawfulness of an order is
not a
discrete element of an offense under Article 92, and the military judge
properly decided the issue of lawfulness as a question of law in this
case; in
a prosecution for violation of an order or regulation, the Constitution
does
not require that the validity of the order or regulation be decided by
a jury).
(when Congress inserted the word "lawful" in the statutes
governing disobedience, it was addressing the judicial role of the
court-martial panel rather than creating an element for consideration
by a
factfinder; the inclusion of the word "lawful" did not add a separate
element to the offense of violating a regulation or order; the word
"lawful" reflects a question of law – the validity of the regulation
or order with respect to a superior source of law – that is inherent in
the
terms "order" and "regulation" under Article 92).
(because lawfulness of an order is a question of law, the military
judge did
not err by resolving it himself without submission to the members).
(an order to wear United Nations patches and cap was lawful in that
it was
properly authorized, related to a military duty, and violated no
applicable
service uniform regulations).
(the question of whether the military judge correctly determined
that an
order was lawful is reviewed on a de novo basis).
(the test for assessing the lawfulness of an order includes that 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).
(orders are clothed with an inference of lawfulness).
(an appellant has the burden to establish that an order is not
lawful).
(arguments that wearing United Nations insignia violates Army
uniform
regulation by transferring allegiance to the United Nations and that
orders
stem from an illegal deployment of the Armed Forces fail because they
unacceptably substitute appellant’s personal judgment of the legality
of an
order for that of his superiors and the Federal Government).
(uniform requirements relate to a military duty, and consequently
order to
comply with uniform requirements meets the "military duty" test for
lawfulness of an order, where that requirement promotes the basic
Former
Yugoslavian Republic of Macedonia United Nations Preventative
Deployment Force
military mission or safeguards discipline and morale of deployed
troops).
(it is not a defense to a charge of disobeying an order in violation
of
Article 92 for appellant to claim that the order is illegal based on
his
interpretation of applicable law; there is no constitutional right or
statutory
provision that gave appellant authority for a self-help remedy of
disobedience).
(the determination whether lawfulness of an order to deploy is a
political
question and thus nonjusticiable is reviewed on a de novo
standard).
(military judge properly declined to rule on the constitutionality
of the
President’s decision to deploy the Armed Forces in
1999
United
States v. McDaniels, 50 MJ 407 (orders requiring the
performance
of military duties are presumed to be lawful when issued by superiors,
but that
order must relate to a military duty. See para.
14c(2)(a)(i) and
(iii), Part IV, Manual for Courts-Martial, United States (1995 ed.)).
(an order which interferes with private rights is permissible where
there is
a valid military purpose; driving on base was a matter well within the
scope of
military authority, which includes protecting civilians from injury at
the
hands of military personnel).
(where appellant was diagnosed as suffering from narcolepsy, an
order not to
drive a POV had a valid military purpose and was neither overly broad
nor an
impermissible burden on appellant’s personal rights).