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Punitive Articles of the UCMJ

Article 90—Assaulting or willfully disobeying superior commissioned officer

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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.”

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.

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 pre-ceding 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 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.

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