2008 edition - Fort Sam Houston - U.S. Army

(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).
( i i ) S t r i k e s . “ S t r i k e s ” m e a n s a n i n t e n t i o n a l
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
14.c.(2)(b)
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) Determination of lawfulness. The lawfulness
of an order is a question of law to be determined
by the military judge.
(iii) 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.
(iv) 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.
( v ) R e l a t i o n s h i p t o s t a t u t o r y o r c o n s t i t u -
tional 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
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