Divestiture Defense for Criminal Disrespect Essay

Sergeant Payne has been criminally charged under this code for yelling and cursing at his First Sergeant, and the applicability of the divestiture defense in connection to this case is sought.

Issues

Article 91 of the UCMJ expressly provides that any member of the armed services that, "treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office; shall be punished as a court-martial may direct." There are two primary issues at stake here: first, there is the question of divestiture, wherein the provisions of Article 91 are rendered moot by unbecoming conduct on the part of the superior officer shown disrespect by the individual charged, and second is the issue of where and when the execution of office can be established.

In light of the discussion of case law and current statues in the Manual for Courts Martial provided by Milhizer in the journal Army Law, there are definite and clear limitations to the existence of superior officers' divestiture of their legal rights to the respect owed to them based on their rank and office. There must have been either a history of conduct on the part of the officer in question (the individual identified as the victim in the case) substantially departing from the decorum and behaviors expected of the superior officer's rank and duty, or a substantial departure from the decorum and behaviors expected of the officer at the time of the incident.

Furthermore, according both to the case studies and overviews provided by Milhizer and the case of United States v Diggs, it is clear that there is no divestiture of the legal protection of respect and conduct towards a superior officer, nor for the disobedience of an order given by an officer even when respect has been legally divested through the superior officer's conduct, when the superior officer is carrying out the duties of his office and/or rank.

In United States v Diggs, the question of when the performance of duty was clearly established was brought into question.The decision in this case and previous precedents cited by the presiding judges in the case's final appeal clearly and explicitly outline the fact that the performance of duty can be established either through explicit statement or through the implication of the circumstances surrounding any incident in question.

Analysis

Without further details regarding the incident in which Sergeant Payne was involved, it is impossible to tell whether the divestiture defense would be applicable to the case, or to come to any preliminary determination of whether or not the First Sergeant -- the victim identified in the case -- was indeed engaged in the performance of his duties or properly fulfilling the obligations and expectation of his rank at the time of the incident. Both of these issues go to the very heart of the applicability of a divestiture defense to the case at hand.

Conclusion

With more details regarding the circumstances surrounding the charge leveled against Sergeant Payne, a more secure determination of the applicability of the findings contained in this memo can be reached. Until these details are provided and understood, however, it will be impossible to progress….....