Elements

1. That the accused did or omitted certain acts or used certain language to or concerning a certain commissioned officer;
2. That such behavior or language was directed toward that officer;
3. That the officer toward whom the acts, omissions, or words were directed was the superior commissioned officer of the accused;
4. 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;
5. That the under the circumstances, the behavior or language was disrespectful to that commissioned officer.[1]

 
Generally
 
Article 89 through 91 create a protected status for superior commissioned officers, noncommissioned officers, and warrant officers in the execution of their duties. 

Superior Commissioned Officer
           
​One of the first issues to arise in any Article 89 case is whether the allegedly disrespectful acts, omissions, or words were directed towards a superior commissioned officer.  The statute divides the analysis into two groups – circumstances where the accused is in the same armed force as the superior commissioned officer and circumstances where the accused is in a different armed force than the superior commissioned officer.  Generally, this includes commissioned warrant officers.
           
Under Article 89, when the accused is in the same armed force as the victim disrespected, the superior under the following conditions:

1)    If the victim is a commissioned officer superior in rank to the accused.
2)    If the victim is superior in command to the accused, even if the victim is subordinate in rank to the accused.
3)    If the victims is superior in grade, but inferior in command.
           
When the victim is member of a different branch of service, the victim is superior when:
1)  The victim is a commissioned officer and superior in the chain of command over the accused.
2)  The victim, not a medical officer or chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse through the normal chain of command is prevented.
           
A victim is not a superior commissioned officer simply because he or she is superior in grade to the accused.[2]

Common Defenses
                                    -Divestiture
 
Divestiture
 
The statute provides that misconduct on the part of the superior in dealing with a subordinate divests the superior of his or her authority and no longer affords the superior of a protected status.  The divesture must be a substantial departure from the required standards of conduct. The divestiture is limited to offenses where the protected status of the victim is an element – but may not extend to lesser included offenses.[3]  A jury can also find a partial divestiture.  In other words, the victim may not have been in the execution of his office, but he had not divested himself of his rank status.[4] Divestiture is a special defense under the statute and is a question of fact for the panel.

The case law provides a number of examples of divestiture:
                        -Striking the accused.[5]
                        -Challenging the accused to a fight.[6]
                        -Using racial slurs towards a subordinate.[7]
                        -Serving as a bartender at an enlisted party.[8]
                        -Exceeding the scope of a search authorization to embarrass the accused by reading a private letter.[9]
 
Examples of conduct not amounting to divestiture include:
 
                        -General use of profanity.[10]
                        -General allegations of horseplay.[11]
                        -Personal relationship with subordinate.[12]

Practice Pointers
           
There are a number of ways to attack an Article 89 charge.             

The specific disrespectful behavior should be alleged.  The alleged victim’s status as a superior commissioned officer should also be alleged. The following are suggested areas that counsel should investigate:
1)    The precise relationship between the accused and the victim.  The victim may not fall within the narrow definitions of a superior commissioned officer.  There may be a need to review the victim’s commissioning documents.
2)    Whether the acts, omissions, or words were actually directed towards the victim. 
3)    Whether the accused knew that the victim was a superior commissioned officer.  This element is helpful in cases where the victim is not in uniform or the accused is under the influence of alcohol or other substances at the time of the disrespect.
4)    Whether the victim divested his or her authority.
5)    Whether the language was, in fact, disrespectful.
 
Maximum Punishments
The maximum punishment under Article 89 is bad-conduct discharge, total forfeitures, and confinement for 1 year.

The lesser included offenses are Article 117 provoking speeches and gestures and Article 80 attempts.


[1] MCM, Pt. IV, ¶ 13a.

[2] United States v. Peoples, 6 MJ 904 (ACMR 1979).
 
[3] United States v. Richardson, 7 MJ 320 (CMA 1979).

[4] United States v. Sanders, 41 MJ 485 (CAAF 1995).
                                                                                                 
[5] United States v. Diggs, 52 MJ 251 (CAAF 2000).
 
[6] United States v. Struckman, 43 CMR 333 (CMA 1971).
 
[7] United States v. RIchardson, 7 MJ 320 (CMA 1979).
 
[8] United States v. Noriega, 21 CMR 322 (CMA 1956).
 
[9] United States v. Hendrix, 45 CMR 186 (CMA 1972).
 
[10] United States v. Collier, 27 MJ 806 (CMA 1990).
 
[11] United States v. Leach, 22 MJ 738 (NMCMR 1986).
 
[12] United States v. Middleton, 36 MJ 835 (ACMR 1977).

[13] Military Judges Benchbook, ¶ 3-13-1 – Disrespect Toward a Superior Commissioned Officer.

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