UCMJ Article 90: Willfully Disobeying A Superior Commissioned Officer
At Bilecki Law Group, we defend service members against charges of willfully disobeying a commissioned officer under Article 90 of the UCMJ. We believe there is more to the story than the charge and we’ll make sure the full story is told and weighted.
What Is Article 90 Of The UCMJ?
Willfully disobeying a superior commissioned officer under Article 90 of the UCMJ takes place when a service member received a lawful command from a superior office and that service member knew that the officer was a superior office and then willfully disobeyed that lawful command. An aggravating factor of the offense being committed during a time of war can bring about stiffer consequences.
The article goes on to define “willful disobedience” as an intentional defiance of authority and “superior commissioned officer” simply as a commissioned officer superior in rank or command. Now, those might seem like unnecessary clarifications but those definitions can save you in your defense. The prosecution must show that you were intentionally defiant and that you knew the officer was superior in rank or command.
Oftentime, there is no question whether or not you did or did not perform a certain action. There is often some legitimacy to that accusation as that is what brought about the charge to begin with. However, we do not concede that you knew of the command. We do not concede that you knew the command was lawful. We do not concede that you know the officer was superior in rank or command. Namely, we do not concede and we fight like hell on every element to save your career.
Force the Prosecution To Prove Each Essential Element Of Article 90
The simple truth is that the Bilecki Law Group is not exactly a fan favorite among military prosecutors and that’s because we make them actually work for a living. The essential elements for conviction exist for a reason and we are going to make them satisfy each one. As such, let’s take them one by one and break them down in further detail.
That the accused received a lawful command from a superior officer
Most prosecutors like to assume the command was lawful, but we don’t make it that easy. The lawfulness of the command is not a separate element of the offense. If it is determined, based on the facts, that the command was not lawful, the case should be dismissed. An example would be that the command was unrelated to military duty and its sole purpose is to accomplish some private end.
One can also challenge the “received” portion of that element. As long as the command was understandable, the form and method of the communication may not be important. However, one can’t receive a command that was never communicated to them. Perhaps the officer sent a runner and the runner ever arrived. Then, the runner lied to cover up their own negligence.
It could also be that the order was communicated in a manner where the accused had no idea or reason to believe it was actually from a superior officer. Keep in mind that this is just the first element and within this element, there are multiple avenues to challenge the prosecution.
That the officer who gave the command was the superior commissioned officer of the accused
Now, this one is often fairly straight forward as one’s rank and place in the command structure is a fairly objective matter. Though “stolen valor” of persons impersonating an officer of a higher rank does exist within the ranks. However, divestiture of status can be raised which would make the officers superior rank null and void.
Divestiture of status can be raised when an officer conducts himself/herself in a manner which takes away his/her status as a superior of the accused. The UCMJ clarifies that an officer whose own (language) (and) (conduct) under all circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer’s ranks and position under similar circumstances is considered to have abandoned that rank and position.
That the accused knew that the officer was a superior commissioned officer
Just because the boot lieutenant dresses like a preppy frat boy when in civvies, doesn’t mean an enlisted personnel is supposed to know they are a college educated officer. Bases are sprawling compounds where officers from every unit interact with others on base who have no idea who they are.
In addition, rank structures do not always follow the assumed pattern. For instance, a Lieutenant is often in command of a platoon in the Marine infantry and a Captain is typically over the Company. However, in the reserves it is entirely common to see a Captain as a Platoon Commander and a Major is actually over the Company. As such, you can’t assume that everyone knows exactly where every officer rests in the command structure. The prosecution wants to assume it was obvious, but we don’t let them off that easily.
That at a specific day and time, the accused willfully disobeyed the lawful command
Here again, we’re going to make prove willfully and we’re going to make them prove the disobedience. If the order did not make it clear that it required immediate compliance, then you may have fully intended to comply. The order to show up at the armory on a specific date is not the same as an order to show up at the armory on this day at 0600. The order to get a haircut is not the same as an order to drop out of formation right now and get a haircut.
It may also be that you fully intended to complete the order, but outside circumstances prevented you. Willful is a relevant term that is not always easy to prove. What many commands do is to charge you with this and scare the hell out of you by making you think it’s an ironclad case. That’s why prosecutors don’t like us, because we make them prove each element word by word. When you put up such a fight, they’ll often move on and look for some other poor service member to make an example out of.
Military History Demonstrates That There Is A Time And Place For Disobedience
What officers don’t like to mention is that military history is littered with examples of times where disobedience is the right thing to do. In World War 2, a Marine named Jack Lucas was ordered to drive trucks on Hawaii because he was technically too young to enlist. He deserted, jumped on a ship heading for Iwo Jima and picked up the Medal of Honor by jumping on 2 grenades.
In that very same war, New Zealand soldier Jack Hinton was ordered by superior officers to retreat when facing an onslaught of Germans in Greece. Hinton refused. The officer threatened to court martial Hinton for failing to obey orders and Hinton threatened the officer for talk of giving up. Eventually, Hinton said “to hell with this, who’s coming with me?” He then led a bayonet charge that took out one machine gun nest after the next on his way to earning the Victoria Cross.
U.S. Marine Dakota Meyer was ordered to stay out of the kill zone during an ambush in Afghanistan that was laying waste to his friends. He disobeyed and charged into the kill zone on his way to the Medal of Honor. So it goes on and on again, in war after war. It is true that obeying orders is essential to military discipline and victory. However, it is also true that there is a time and place for disobedience. You simply can’t read military history and come to any other conclusion. As such, if you are facing charges under Article 90 it may be that you had a good reason to believe this might have been one of those moments.
Fighting Charges Under Article 90 Can Be a Moral Calling
First and foremost, you must fight charges under Article 90 of the UCMJ for your ownsake. You can’t coexist with a military justice system that is trying to destroy your life and you should fight without apology. Second, fighting charges under Article 90 can be a moral calling. Some officers are not cut out for their command and the only reason you are facing charges for disobedience is that the order was ridiculous to begin with. Think back to the Band of Brothers series where Captain Sobel is trying to charge Lieutenant Winters for not receiving an order from a runner. Winters chose to fight via a court martial to bring attention to the command of Easy Company. That’s another true story from military history.
- Whatever your motivation, you must stand up and fight back against misuse and abuse of the UCMJ or the military justice system will destroy you.
- They will ruin your life just to make an example out of you and if takes some BS order to get that example, they’ll take it all day long. If you are under investigation or facing charges, give us a call. We’ll always tell you exactly what you are facing and as long as you are willing to stand and fight, so are we.
- We’ll fight them at every turn and if we need to get that officer on the stand and shred them to pieces, so be it. Don’t let them make an example out of you.
- Make yourself a harder target and force them to move on to make that example out of the next guy.
Bilecki Law Group will help you fight back against charges under Article 90: Assaulting or Willfully Disobeying a Superior Commissioned Officer
Frequently Asked Questions About Article 90
Yes, you can. Prosecutors must prove that you were aware that the person you struck or disobeyed was a superior commissioned officer. If they fail to do this, you should be found not guilty on all charges.
Striking, drawing, or lifting up any weapon or offering any violence to a superior commissioned officer in the execution of office:
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 10 years
- Dishonorable discharge
Willfully disobeying a lawful order of superior commissioned officer:
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 5 years
- Dishonorable discharge