CORE CRIMINAL LAW SUBJECTS: Crimes: Article 90 - Assaulting or Willfully Disobeying Superior Commissioned Officer

2014 (September Term)

United States v. Phillips, 74 M.J. 20 (the ultimate offense doctrine prohibits the escalation in severity of minor offenses by charging them as violations of orders or the willful disobedience of superiors; as it applies to the offense of disobeying a superior commissioned officer under Article 90, UCMJ, taken from the President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), the ultimate offense doctrine provides that 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 Article 90). 

(in this case, appellant’s company commander personally gave appellant a written order restricting him to the confines of the military installation; in violation of the order, appellant drove off the installation to visit and reside with his girlfriend; during the providence inquiry, appellant stated that he was guilty because he was residing off-post when he was clearly given a command to stay on post and not break restriction; in determining the ultimate offense, the environment in which the order was given must be considered; appellant had two lengthy absences, totaling more than three years, one of which was admittedly undertaken to impede court-martial proceedings, and a civilian conviction on two counts for exposing himself to a child; the order was issued in furtherance of a proper military function; under the circumstances of this case, appellant failed to establish that his commander gave the order of restriction solely to improperly escalate the punishment; therefore, the ultimate offense doctrine had no application, and appellant failed to establish a substantial basis in law or fact to question his guilty pleas). 

(to the extent that prior jurisprudence suggests that the ultimate offense doctrine for Article 90 may be more expansive than the President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), by testing to see whether the order was given with the full authority of his office, thereby lifting it above the common ruck, it is overruled (overruling US v. Loos, 4 CMA 478, 16 CMR 52 (1954))). 

(the distinction between an Article 90 disobedience of an order offense and an Article 134 breaking restriction offense does not require a Hartman (69 MJ 467 (CAAF 2011)) discussion at the plea inquiry where a military judge must explain to an accused during the guilty plea inquiry the difference between conduct that was constitutionally protected and conduct that could be legitimately punished).   

(the maximum punishment for disobeying the order of a superior commissioned officer in other than time of war is a dishonorable discharge, confinement for five years, and forfeiture of all pay and allowances).

2008 (September Term)

United States v. Ranney, 67 M.J. 297 (the elements of the offense of willfully disobeying a superior commissioned officer are:  (a) that the accused received a lawful command from a certain commissioned officer; (b)  that this officer was the superior commissioned officer of the accused; (c)  that the accused then knew that this officer was the accused’s superior commissioned officer; and (d) that the accused willfully disobeyed the lawful command; in addition, 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 Article 90, but may violate Article 92). 


(appellant’s failure to obey an order revoking his driving privileges after he was detained for drunk driving did not amount to willful disobedience of a superior commissioned officer, 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 order was not a direct and personal order, and nothing lifted this routine action above the common ruck; thus, appellant’s disobedience of that order was legally insufficient to sustain a conviction under Article 90, UCMJ). 


(the base traffic review officer’s personal memorandum specifically responding to appellant’s written request for reinstatement of limited driving privileges did not change the legal landscape of the original order revoking appellant’s driving privileges, where that memorandum did not contain the lawful command appellant was charged with willfully disobeying; furthermore, the memorandum did not “ratify” the original order and thereby transform it into the lawful command of a superior officer for the purposes of Article 90, UCMJ; although the base traffic review officer personally reviewed appellant’s case and issued a memorandum continuing the suspension of appellant’s driving privileges, that action neither cured the lack of personal involvement afflicting the original order nor lifted that routine administrative sanction above the common ruck; the contract principle of ratification cannot be used to transform an automatic and routine driving restriction into the lawful command of a superior commissioned officer, after the fact, in order to create additional criminal liability). 



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).


United States v. Rose, 64 M.J. 56 (an order directing appellant to receive the anthrax vaccine was a lawful order which he disobeyed in violation of Article 90, UCMJ). 


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).


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).

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