2.
Disrespect to a superior commissioned officer (Article 89). The elements of
this offense are: (1) that the accused did or omitted certain acts or used certain
language to or concerning a certain commissioned officer; (2) that such behavior
was directed toward that officer; (3) that the officer was the superior
commissioned officer of the accused; (4) that the accused knew that this person was
his superior commissioned officer; and (5) under circumstances, the behavior or
language of the accused was disrespectful to the officer. The victim need not be
in the execution of his office at the time of the incident. The disrespect need
not be in the presence of the commissioned officer, but must be directed toward
him.
QUESTION:
WHAT IF THE ACCUSED DOESN'T KNOW THE STATUS OF THE VICTIM?
ANSWER:
THE GOVERNMENT MUST SHOW HE KNEW. IT'S AN ELEMENT OF THE OFFENSE. U.S.
V. OISTEN, 33 CMR 188 (CMA, 1963).
SUCH KNOWLEDGE MAY BE SHOWN BY THE
SURROUNDING CIRCUMSTANCES; I.E., CIRCUMSTANTIAL EVIDENCE. WAS THE VICTIM
IN UNIFORM? DID HE IDENTIFY HIMSELF? DID THE ACCUSED KNOW WHO THE VICTIM
WAS?
QUESTION:
UNDER WHAT FACTS MIGHT THE ACCUSED NOT KNOW THE VICTIM'S STATUS?
ANSWER:
THE OFFICER-VICTIM MIGHT NOT BE IN UNIFORM, AND THE ACCUSED MIGHT BE FROM
A DIFFERENT UNIT.
ALSO, INTOXICATION "CAN RENDER AN ACCUSED LEGALLY
UNABLE TO KNOW (THAT THE VICTIM) IS HIS SUPERIOR OFFICER."
U.S.
V.
OISTEN, 33 CMR 188 (CMA, 1963). IT'S A QUESTION OF FACT.
Disrespect is defined as that behavior which detracts from the respect due
the authority and person of a superior commissioned officer.
It may consist of
acts or language.
It includes name calling, refusing to salute, or showing a
marked disdain, indifference, insolence, impertinence or undue familiarity, or
other rudeness (MCM, paragraph 13(c)(3)).
Truth is not a defense.
An accused
cannot defend against a charge that he called his commander a "jerk" by showing
that the commander really is a jerk.
QUESTION:
IS TRUTH A DEFENSE?
ANSWER:
NO.
QUESTION:
YOU ARE COUNSELING A SUBORDINATE WHEN HE TURNS AND WALKS AWAY.
IS THIS
DISRESPECT?
ANSWER:
YES.
IN U.S. V. FERENCZI, 27 CMR 77 (CMA, 1958), THE ACCUSED WAS
CONVICTED OF DISRESPECT "BY CONTEMPTUOUSLY TURNING FROM AND LEAVING THE
PRESENCE OF THE (OFFICER) WHILE SAID OFFICER WAS TALKING TO HIM."
QUESTION:
THE ACCUSED ADDRESSES A FEMALE LIEUTENANT AS "HI, SWEETHEART."
IS THIS
DISRESPECT?
ANSWER:
IN U.S. V. DORNICK, 16 MJ 642 (AFCMR, 1983), THE COURT HELD THAT "ABSENT
EXTRAORDINARY
CIRCUMSTANCES
TENDING
TO
NEGATE
THE
IMPLIED
SEXIST
FAMILIARITY PREFERRED BY AN ENLISTED PERSON TO HIS OR HER
MP1018
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