In order to be an "order," it must amount to a positive command.
recipient of the order must be placed on notice that the (one) who gives the order
is bringing his authority to bear to compel compliance.
It is important that a
(soldier) have adequate notice that words directed at him...are intended as an
order, so that he will be well assured that by noncompliance he will subject
When a lieutenant told a highly upset soldier to
"settle down and be quiet," the court wasn't sure whether it was an order or an
attempt at counseling.
U.S. V. WARREN, 13 MJ 160 (CMA, 1982).
Also, an order
cannot be too vague and indefinite.
An order "to train" was held to be too
unclear, as it didn't direct the accused to do or cease doing any particular thing.
It "did not contemplate definite performance of any particular part of the
soldier's duties." U.S. V. OALDAKER, 41 CMR 497 (ACMR, 1969).
Failure to obey order or regulation (Article 92).
This article covers one
who violates or fails to obey any lawful general order or regulation or who "having
knowledge of any other lawful order issued by a member of the Armed Forces, which
it is his duty to obey, fails to obey the order." "An example of the first part
would be the Joint Standards of Ethical Conduct Regulation, DOD 5500.7-R, which is
punitive and applies to all members of the Federal Executive Branch, including
members of the Armed Forces. This regulation was effective on 31 August 1993 and
replaces AR 600-50."
The accused is presumed to have knowledge of the general
order or regulation. U.S. v. Tinker, 27 CMR 366 (CMA, 1969). Ignorance, then, is
not a defense here. U.S. v. Leverette, 9 MJ 627 (ACMR, 1980).
An example of the second part is an order which is not prosecutable under
Articles 90 to 91. The order may come from a subordinate. The issue is whether
the accused had a duty to obey it.
An example is a sentinel or MP, who may
lawfully give an order even to a military superior. (MCM, paragraph 16(c)(2)C.)
WHAT IF THE DISOBEDIENCE IS THE RESULT OF FORGETFULNESS (AS OPPOSED TO
A WILLFUL DISOBEDIENCE)?
IT MAY BE PROSECUTED UNDER ARTICLE 92 AS "DERELICTION IN DUTY."
Conduct unbecoming an officer (Article 133).
This involves actions or
behavior "which in dishonoring or disgracing the person as an officer, seriously
compromises the officer's character as a gentleman."
It includes actions in a
private capacity which "in dishonoring or disgracing the officer personally,
seriously compromises the person's standing as an officer." This offense is shown
by "acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness,
injustice, or cruelty." (MCM, paragraph 59(c)2.)
WHAT ARE SOME SPECIFIC EXAMPLES?
EXAMPLES LISTED IN THE MCM, PARAGRAPH 59(c)3, ARE KNOWINGLY MAKING A FALSE
OFFICIAL STATEMENT, DISHONORABLE FAILURE TO PAY A DEBT, CHEATING ON AN
EXAM, BEING DRUNK OR DISORDERLY IN A PUBLIC PLACE, AND FAILING WITHOUT
GOOD CAUSE TO SUPPORT THE OFFICER'S FAMILY."