The military is structured in such a way that those with higher ranks are provided with certain privileges. One of these is respect from subordinates. As a servicemember earns a higher rank, they are proving their ability in both knowledge and leadership. Article 89 provides protection for commissioned officers, noncommissioned officers, and warrant officers to issue commands necessary for the execution of their duty.
Article 89 includes both verbal and physical disrespect. Any of these could also be considered a level of assault.
The elements involved in an accusation of an Article 89 violation include:
- If a servicemember exhibits disrespect towards their superior commissioned officer, they could be held for a court martial.
- If a servicemember strikes, draws a weapon, or offers any violence towards their superior commissioned officer, they shall be subject to court martial.
There are, however, many factors to consider for Article 89 violations.
Superior Commissioned Officer
The first issue that arises in Article 89 litigation is the relationship between the accused and the superior to whom the words, omissions, or other disrespectful acts were directed. Because superior officers in the military can exhibit leadership in varying contexts, the article splits the definition into two parts.
- Is the accused in the same branch of the armed forces as the superior commissioned officer?
- Is the accused in a different branch of the armed forces than the superior commissioned officer?
Both of these include not just superior commissioned officers but often warrant officers as well.
If the accused is within the same branch, then the victim is considered a superior if:
- The commissioned officer determined to be the victim is of a higher rank than the accused.
- The superior officer determined to be the victim is considered such regardless of the rank of the accused.
- The victim can be superior in grade but inferior in command.
For situations in which the victim and the accused are from separate branches, the victim is considered superior when:
- The chain of command dictates that the victim is superior in rank; the victim is also a commissioned officer.
- Both the victim and the accused are detained by a hostile enemy that prevents a normal chain of command, and the victim is not a medical officer or chaplain.
It is important to note that a victim is not automatically considered a superior commissioned officer just because they are higher in grade.
While there are varying forms of disrespect for civilians, the military is definitive on what that term means. The purpose of each UCMJ article is to provide servicemembers with the foundation to maintain proper morale, good order, and discipline. Disrespect runs counter to these foundations, which is why the military views disrespect as so problematic. Disrespect is defined as any behavior that “undermines the respect of authority of a commissioned officer superior to the accused.” Examples of this include:
- Abusive Epithets: Language that is insulting, degrading, derogatory, sexist, taunting, or mocking is an example. This also includes any racial slurs or discriminating language.
- Showing Marked Disdain: This includes behavior that exhibits indifference, insolence, rudeness, or impertinence.
- Neglecting the Customary Salute: This is an obvious sign of disrespect.
Assault under Article 89 is considered any offense that consists of “striking or assaulting a commissioned officer.” By definition, “striking” is considered intentional contact that is offensive in nature, regardless of the type of contact that occurred. Assault also includes the act of lifting or drawing a weapon towards a superior officer that is deemed threatening. This violation occurs regardless of the type of weapon. If the weapon is a firearm, this applies regardless of whether it is loaded or not.
Unlike civilian assault, in which there must be only a belief that violence will happen, military assault has to involve more than the threat. There must be an attempt to inflict harm.
Punishment for Article 89 Violations
Punishments can vary for violations. However, they can be very severe depending on the type of infraction and the circumstances under which it was committed. Punishments include:
- Disrespect towards a superior commissioned officer in command. Violations will result in punishments such as bad-conduct discharge, forfeiture of pay and allowances, and up to one year in confinement.
- Disrespect towards superior commissioned officers in rank. Violations will result in punishments that include bad-conduct discharge, forfeiture of pay and allowances, and up to 6 months of confinement.
- Assault offense. This violation will result in punishment including dishonorable discharge, forfeiture of pay and allowances, and up to 10 years’ confinement.
- Assault offense during times of war. This is the most serious offense and comes with the most serious punishment. This could include death or any other punishment imposed by a court martial.
Common Defenses for Article 89
Defending violations of Article 89 may seem difficult, but it is not impossible. One of the most common defenses is divestiture. This implies that the superior officer first engaged in misconduct that was significantly outside of military standards of conduct. The defense must demonstrate that the superior officer was at fault for the incident. They must also show that the accused was forced to respond in the manner of which they are accused.
Other defenses include establishing the relationship between the victim and the accused as well as their knowledge of the rank the superior held at the time of the incident. Common circumstances include situations in which the accused was under the influence of alcohol, which can show a lack of mental clarity at the time of the incident.
Military Criminal Defense Attorney
If you are accused of an Article 89 violation, you should have the help you deserve. With almost 20 years as a commissioned JAG, the team at Aaron Meyer Law has the knowledge, experience, and resources to ensure that you receive the best defense possible. Our team can look through your case and evaluate the evidence against you. We can then customize our defense strategy to meet your unique needs. We know your career is on the line. We know that not every case is black and white. Contact our offices today and let us get you the help you deserve.