Article 89 | Disrespect Toward Superior Commissioned Officer

Facing an Article 89 Charge? Stress, confusion, and a damaged reputation can feel overwhelming. Don’t go it alone. Military Law Center can help.

Disrespecting a Superior Commissioned Officer in the military is never a smart decision. Article 89 of the Uniform Code of Military Justice (UCMJ) prohibits two main offenses:

• Disrespect towards a superior commissioned officer.
• Assaulting a superior commissioned officer.

The key element in both situations is the status of the victim – they must be a superior commissioned officer in relation to the accused.

Here’s a breakdown of what the government must prove for each offense: 

Disrespect Toward Superior Commissioned Officer.

a. That the accused did or omitted certain acts or used certain language to or concerning a certain commissioned officer;

b. That such behavior or language was directed toward that officer;

c. That the officer towards whom the acts, omissions, or words were directed was the superior commissioned officer of the accused;

d. That the accused then knew that the commissioned officer toward whom the acts, omissions, or words were directed was the accused’s superior commissioned officer; and 

e. That, under the circumstances, the behavior or language was disrespectful to that commissioned officer.

When the government alleges an assault of a superior commissioned officer, the prosecution must prove the following elements:

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 the execution of office.

[And if the offense was committed in time of war, add the following element]

e. That the offense was committed in time of war.

The terms found within the elements above have specific definitions. The following definitions apply:

1. Superior Commissioned Officer. See 10 U.S.C. § 801(5). The term superior commissioned officer means a commissioned officer superior in rank or command.
2. Knowledge. If the accused did not know that the person against whom the acts or words were directed was the accused’s superior commissioned officer, the accused may not be convicted of a violation of Article 89. However, knowledge may be proved by circumstantial evidence.
3. Disrespect. Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual.
4. Strikes. Strikes means an intentional contact and includes any offensive touching of the person of an officer, however slight.
5. Draws or lifts up any weapon. 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.
6. 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 commissioned 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.

A 2000 court case (U.S. vs. Najera) illustrates disrespect under Article 89. A Marine facing early release refused to return to training and made defiant statements to his Captain. The court found these actions disrespectful due to the context and manner in which they were delivered.

1. Disrespectful Behavior, Not Just Disagreement:
   The case (U.S. vs. Najera) clarifies that Article 89 applies beyond simply refusing an order. Here, the disrespectful manner (smirking, defiance) and the overall message (“you can’t make me”) constituted the offense.
2. Context Matters:
   The court considered the situation surrounding the statements. The Marine was already in trouble and requesting an early release, then refused further training while expressing a desire to leave the Marines altogether. This context added weight to the disrespectful nature of the comments.
3. Delivery Can Be Crucial:
   The way something is said can be just as important as the words themself. The Marine’s defiant attitude and body language (smirking) played a role in the court’s decision.

While this case (U.S. vs. Najera) highlights disrespectful behavior, it’s important to remember that every situation is unique. If you’re unsure whether your actions might fall under Article 89, consulting with a military law attorney is crucial. We can analyze the specifics of your situation and advise you on the best course of action.

An Article 89 charge can feel overwhelming, but there are potential defenses available to fight the accusation:

• Proper Discharge of Duty:
  You were acting within the lawful scope of your duties when the alleged incident occurred. For example, if you used force to restrain a superior officer who was endangering themselves or others, you may have a valid defense.
• Victim’s Provocation:
  The superior officer’s behavior directly provoked you into a disrespectful response or assault. This provocation must be serious and would not have been expected of a reasonable service member in the same situation. Additionally, self-defense may be applicable depending on the specific circumstances.
• Special Defense – Unprotected Victim:
  A superior commissioned officer who engages in serious misconduct towards you, significantly departing from the standards expected of their rank and position, may lose the protection of Article 89. In such cases, you may not be convicted of disrespecting that officer.

The maximum punishment for Article 89 depends on what theory the prosecution charges the accused.

1. Disrespect toward superior commissioned officer in command.
   1. Bad Conduct Discharge, forfeiture of all pay and allowances, and confinement for one year.
2. Disrespect towards superior commissioned officer in rank.
   1. Bad Conduct Discharge, forfeiture of all pay and allowances, and confinement for six months.
3. Striking, drawing, or lifting up a weapon or offering any violence to superior commissioned officer in execution of office in time of war.
   1. Death or such other punishment as a court-martial may direct.
4. Striking, drawing, or lifting up a weapon or offering any violence to superior commissioned officer in execution of office at any other time.
   1. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

While the maximum punishment for Article 89 listed in the Manual for Court-Martial is shown above, there can be some other punishments not listed. For example, a service member found guilty of violating Article 89, UCMJ could also be punished with restriction, fines not to exceed the jurisdictional maximum, and punitive letters of reprimand. Additionally, the criminal conviction itself will trigger collateral consequences later in life.

Facing an Article 89 charge can be a frightening and stressful experience. At Military Law Center, we understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Attorneys:
  Our team is comprised of former military personnel with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing Article 89 charges, and we know how to navigate the complexities of military justice.
• Personalized Attention:
  We treat every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defense options and work tirelessly to protect your career and future.
• Clear Communication:
  We understand legal jargon can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 89 Charges Alone. We Can Help.

An Article 89 charge can derail your military career and reputation. But you don’t have to fight this alone. Military Law Center has a proven track record of success defending service members facing these accusations. Our experienced attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.

We’ll stand by your side and fight for you.