A frequent issue here is what constitutes a "lawful order?"
An order that
requires the performance of a military duty or act may be inferred to be legal.
The term "military duty" is a broad one, and 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."
(Manual for Courts-Martial (1984),
paragraph 14(c) 2.)
In U.S. v. Smith, 25 MJ 545 (NMCMR, 1987), the accused, a staff member
(gunnery sergeant) at the Naval Communications-Electronic School sold his POV to a
student at the school. The accused subsequently failed to deliver the title, even
after having been paid for the car.
When the victim complained to the accused's
commander, the commander confronted the accused.
When the accused refused to
produce the title or take any corrective measures, the commander ordered him to
either transfer the title or refund the money. The accused refused and was court-
martialed for disobeying the order. Was the order lawful?
The court said it was, as the sale of the car was "a matter of military
concern."
The transaction occurred "within a military context" and had entangled
the military in administrative efforts to resolve the problem. Also, the command's
special service officer had acted as the escrow agent, and had been induced by the
accused to turn over the money even without receiving the title. This resulted in
a freezing of the victim's funds by the credit union and a negative impact on his
morale. The order related to a military duty since it was connected to "a military
need."
The command had an interest in protecting junior personnel from being
defrauded by their seniors.
The order, therefore, "related to a valid military
purpose."
QUESTION:
CPT RECKLESS TELLS YOU TO "TAKE CARE" OF THE POWs.
WHEN ASKED TO BE
MORE SPECIFIC, HE TELLS YOU TO SHOOT THEM AND GET RID OF THE BODIES.
IS THIS A LEGAL ORDER?
ANSWER:
NO. A PATENTLY ILLEGAL ORDER, DIRECTING THE COMMISSION OF A CRIME, IS NOT
A LAWFUL ORDER.
5.
Willfully disobeying the lawful order of a warrant officer, noncommissioned
officer, or petty officer (Article 91). The elements are:
a. That the accused received a certain lawful order from a certain warrant,
noncommissioned, or petty officer.
That the accused was a warrant officer or
enlisted member;
b. That the accused then knew that person giving the order was a warrant,
noncommissioned, or petty officer; (this doesn't include an acting petty officer or
acting NCO. U.S. v. Lumbus, 49 CMR 248 (CMA, 1974);
c. That the accused had a duty to obey the order; and
d. That the accused willfully disobeyed the order.
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