Article 90 Assaulting or Willfully Disobeying Superior Commissioned Officer

a. Text. "Any person subject to this chapter who -(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or (2) willfully disobeys a lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct." b. Elements. (1) Striking or assaulting superior commissioned officer. (a) That the accused struck, drew, or lifted up a weapon against, or offered violence against, a certain commissioned officer; (b) That the officer was the superior commissioned officer of the accused; (c) That the accused then knew that the officer was the accused's superior commissioned officer; and (d) That the superior commissioned officer was then in the execution of office. (2) Disobeying superior commissioned officer. (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. c. Explanation. (1) Striking or assaulting superior commissioned officer. (a) Definitions. (i) Superior commissioned officer. The definitions in paragraph 13c(1)(a) and(b) apply here and in subparagraph c(2). (ii) Strikes. "Strikes" means an intentional blow, and includes any offensive touching of the person of an officer, however slight. (iii) Draws or lifts up any weapon against. The phrase "draws or lifts up any weapon against" covers any simple assault committed in the manner stated. The drawing of any weapon in an aggressive manner or the raising or brandishing of the same in a threatening manner in the presence of and at the superior is the sort of act proscribed. The raising in a threatening manner of a firearm, whether or not loaded, of a club, or of anything by which a serious blow or injury could be given is included in "lifts up." (iv) Offers any violence against. The phrase "offers any violence against" includes any form of battery or of mere assault not embraced in the preceding more specific terms "strikes" and "draws or lifts up." If not executed, the violence must be physically attempted or menaced. A mere threatening in words is not an offering of violence in the sense of this article. (b) Execution of office. An officer is in the execution of office when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a superior, or military usage. In general, any striking or use of violence against any superior officer by a person over whom it is the duty of that officer to maintain discipline at the time, would be striking or using violence against the officer in the execution of office. The commanding officer on board a ship or the commanding officer of a unit in the field is generally considered to be on duty at all times. (c) Knowledge. If the accused did not know the officer was the accused's superior commissioned officer, the accused may not be convicted of this offense. Knowledge may be proved by circumstantial evidence. (d) Defenses. In a prosecution for striking or assaulting a superior commissioned officer in violation of this article, it is a defense that the accused acted in the proper discharge of some duty, or that the victim behaved in a manner toward the accused such as to lose the protection of this article (see paragraph 13c(5)). For example, if the victim initiated an unlawful attack on the accused, this would deprive the victim of the protection of this article, and, in addition, could excuse any lesser included offense of 2 assault as done in self-defense, depending on the circumstances (see paragraph 54c; R.C.M. 916(e)). (2) Disobeying superior commissioned officer. (a) Lawfulness of the order. (i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (ii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service. (iii) Relationship to military duty. 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. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. 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 this article. (iv) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order. (b) Personal nature of the order. 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 this article, but may violate Article 92. (c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused. (d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to "obey the law" or to perform one's military duty does not constitute an order under this article. 3 (e) Knowledge. The accused must have actual knowledge of the order and of the fact that the person issuing the order was the accused's superior commissioned officer. Actual knowledge may be proved by circumstantial evidence. (f) Nature of the disobedience. "Willful disobedience" is an intentional defiance of authority. Failure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this article but may violate Article 92. (g) Time for compliance. When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. If an order does not indicate the time within which it is to be complied with, either expressly or by implication, then a reasonable delay in compliance does not violate this article. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may. (3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military law (see Article 2) and under the command of a commissioned officer is subject to the provisions of this article. d. Lesser included offenses. (1) Striking superior commissioned officer in execution of office. (a) Article 90 -- drawing or lifting up a weapon or offering violence to superior commissioned officer in execution of office (b) Article 128 -- assault; assault consummated by a battery; assault with a dangerous weapon (c) Article 128 -- assault or assault consummated by a battery upon commissioned officer not in the execution of office (d) Article 80 -- attempts (2) Drawing or lifting up a weapon or offering violence to superior commissioned officer in execution of office. (a) Article 128 -- assault, assault with dangerous weapon (b) Article 128 -- assault upon a commissioned officer not in the execution of office (c) Article 80 -- attempts 4 (3) Willfully disobeying lawful order of superior commissioned officer. (a) Article 92 -- failure to obey lawful order (b) Article 89 -- disrespect to superior commissioned officer (c) Article 80 -- attempts e. Maximum punishment. (1) Striking, drawing, or lifting up any weapon or offering any violence to superior commissioned officer in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (2) Willfully disobeying a lawful order of superior commissioned officer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. (3) In time of war. Death or such other punishment as a court-martial may direct. f. Sample specifications. (1) Striking superior commissioned officer. In that (personal jurisdiction data), did, (at/on board -- location) (subject-matter jurisdiction data, if required), on or about 20 , (a time of war) strike , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, who was then in the execution of his/her office, (in) (on) the with (a) (his/her) (2) Drawing or lifting up a weapon against superior commissioned officer. In that (personal jurisdiction data), did, (at/on board -- location) (subject-matter jurisdiction data, if required), on or about 20 , (a time of war) (draw) lift up) a weapon, to wit: a , against , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, who was then in the execution of his/her office. (3) Offering violence to superior commissioned officer. In that (personal jurisdiction data), did, (at/on board -- location) (subject-matter jurisdiction data, if required), on or about 20 , (a time of war) offer violence against , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, who was then in the execution of his/her office, by 5 (4) Willful disobedience of superior commissioned officer. In that (personal jurisdiction data), having received a lawful command from , his/her superior commissioned officer, then known by the said to be his/her superior commissioned officer, to , or words to that effect, did, (at/on board -- location), on or about 20 , willfully disobey the same. 6