Disrespect and Failed to Follow Orders in the Army

Military discipline is a condition that demands from military personnel a high sense of order and compliance with the commanding officers. Discipline in the military entails the willing subordination of individuals for the betterment of the entire group. It extends as a specialized devotion to a high sense of conformity to the given rules and regulations in preserving and maintaining in an unflagging manner, the initiatives, and functions, even in the absence of the commanders. Discipline in the armed forces is brought about by incorporating a high sense of self-confidence and dependability in every soldier. It warrants sincere execution of duties and is best inculcated by pleading to one’s sense of reasoning. Whenever such appeals to reason fail, the army rules warrant the use of punishments in effectively making the disobedient person adhere to and appreciate the need to be disciplined. Conversely, the earned praise from the commander and other superiors regarding work that is performed in strengthening the bonds of discipline, serves in binding together the efficient and smooth functioning of military teams. This paper will examine the various facets of discipline in the army and the implications of disobedience on the part of personnel as provided for the disciplinary code of conduct.

It is important to follow orders in the military and to adhere to the military rules and regulations. Discipline and its efficiency in the army are built upon the strength of complying with given instructions and orders. New entrants in the army are trained to adhere to orders instantly without asking questions as required by superiors. The very basis of the military’s efficiency is founded on following orders from superiors who themselves have been doing so during their entire career. It is often due to the immense sense of discipline in the army that several youngsters desire to make a career in the military services. The values that are inculcated in a soldier carry him in excellent stead throughout life, which also implies that there will be rare occasions when he would defy or not comply with given orders. If there is no discipline, the entire world would be in chaos, which makes it a good option to follow directions since things will go wrong otherwise.

Discipline in the military is in effect a specific way of maintaining military relations. The essentials of such discipline lie in the coordination, conduct, and action of military personnel in enabling them to set up the relations that are essential for conducting joint activities successfully. The conduct of military personnel is controlled by specific rules and regulations that set standards of behavior as provided for and to be implemented by the orders of military commanders. They are a reflection of the specific features of the army and the requirements of the state as expected from military personnel. Discipline can have various connotations in different circumstances. It sometimes represents some form of punishment while at times it refers to following the required way of life. In the army, discipline implies training that aims at teaching army personnel to adhere to the given rules and to obey the commands of superiors. Hence, discipline is used in ensuring that rules are followed and the commands of authority respected, and in correcting instances of misconduct.

The army recognizes good behavior, appreciation is given for work that is done well, gratitude is also expressed in letters of appreciation, and deserving personnel is given medals for outstanding performance. But bad behavior such as indiscipline, disrespect to superiors, and refusal to follow orders has also to be dealt with effectively, for which there are different options. Soldiers are initially counseled to correct the behavior that is not proper. The options available vary from verbal counseling to administrative discharge. Regarding the correction of undesirable behavior of military personnel, commanders initially attempt to counsel the defaulting soldier, and if such attempts are not successful a letter of counseling is given followed by the letter of admonition and then by letter of reprimand. For more serious acts of indiscipline, the army initiates disciplinary proceedings under provisions of the Uniform Code of Military Justice (UCMJ).

Soldiers in the army are expected to give respect to senior officers, but unfortunately, there is now a trend whereby soldiers are becoming disrespectful towards their seniors even though respect is a core value to be imbibed by army personnel. Without giving respect to the commander a soldier cannot have discipline; in fact, respect comes from within when soldiers respect one another. Middle-level officers expect to be given respect by their superiors without ensuring that they are respected by their subordinates. There are times when soldiers are punished for indiscipline and for not respecting seniors by enrolling them in corrective training programs. It is essential at the same time to ensure that the corrective measures are not like demoralizing soldiers. Soldiers need to respect cultures, genders, and races while performing their duties. Disrespect in this regard also amounts to a violation of the code of conduct that defense personnel is expected to follow at all times. While being sent on missions in faraway places where cultures are different, soldiers must be cautious in respecting the religion and customs of local people.

The disrespect shown by soldiers towards superior officers is not acceptable and is intolerable as per the code of conduct in the army. Personnel found guilty of showing disrespect to superior officers can be punished depending on the extent of disrespect shown. The army views disrespect towards seniors as detrimental to the morale of the unit and repetition of such instances is viewed very seriously. The first offense in this regard attracts a nonjudicial punishment or violators are sent for sessions of corrective training which are outlined in the relevant plans of action. If a soldier continues with such misconduct, further action can be initiated against him under the Uniform Code of Military Justice. Personnel can be discharged from service if they repeatedly indulge in disrespectful behavior towards their superiors. Soldiers that are discharged on these grounds become ineligible for army benefits including payments about accumulated leaves and other transitional benefits. Such individuals face extreme difficulty in getting civilian employment opportunities after they are discharged.

Article 89 of the Uniform Code of Military Justice (UCMJ) provides for the punishment of those soldiers who are disrespectful towards their superiors, “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct” (Powers, 2009).

The elements of the article outline the offense as:

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; and
5. That, under the circumstances, the behavior or language was disrespectful to that commissioned officer” (Powers, 2009).

The above elements have a deep implication for all defense personnel. If the accused and the victim as referred to in article 89 are in the same unit, the victim is considered to be the superior officer of the charged officer. The victim is then assumed to be the superior officer in being a commissioned officer and is deemed to be commanding the accused. The victim however cannot be treated as a superior officer of the charged officer if he has inferior command even if he is having a higher rank. When the accused and the victim are stationed in different units, the victim can be treated as the superior officer of the charged officer if the victim is a commissioned officer and superior in the hierarchy. The victim cannot be taken as a superior officer of the charged officer just because the victim is in a superior grade as compared to the charged officer.

It is not required in terms of initiating penal proceedings against the charged officer that the superior officer must be on duty in office at the time that disrespectful behavior is shown. If the charged officer was not aware that the person with whom he has shown disrespect was his superior officer, he may not necessarily be held guilty of the offense. Such a lack of knowledge can be substantiated by circumstantial evidence. Disrespectful behavior pertains to detracting from the respect that is due to a superior officer in being an authority and an officer of superior rank. The disrespectful act could comprise of an act of language and it is irrelevant in this regard to ascertain whether such words were directed towards the victim in his personal or official capacity. Disrespect could result from using abusive words or language that are scornful or denunciatory. Disrespect by action includes the avoidance of saluting the superior officer, showing visible scorn, indifferent attitude, impudence, insolence, undesirable familiarity, and rude behavior in the attendance of the superior officer.

Disrespectful behavior doesn’t need to occur in the presence of the senior officer, but normally something that is said in private or outside official time should not be considered as disrespect to the superior officer. However, a superior officer who conducts himself in a manner that is not in keeping with the behavior of a senior officer and deviates from the standards as applicable to his cadre and rank, will not necessarily entitle him to receive reprieve under provisions of Article 89 and he loses the protection provided under the same.

In a similar vein, Article 90 of the UCMJ relates to assaulting and knowingly indulging in insubordination with a superior officer. Article 90 provides that

“Any person subject to this chapter who—

1. strikes his superior commissioned officer or draws or lifts any weapon or offers any violence against him while he is in the execution of his office; or
2. willfully disobeys a lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct” (Powers, 2009).

The different elements of Article 90 outline the offense as:

• Striking or assaulting a superior commissioned officer.

1. That the accused struck, drew, or lifted a weapon against, or offered violence against, a certain commissioned officer;
2. That the officer was the superior commissioned officer of the accused;
3. That the accused then knew that the officer was the accused’s superior commissioned officer; and
4. That the superior commissioned officer was then in the execution of office.

• Disobeying superior commissioned officer.

1. That the accused received a lawful command from a certain commissioned officer;
2. That this officer was the superior commissioned officer of the accused;
3. That the accused then knew that this officer was the accused’s superior commissioned officer; and
4. That the accused willfully disobeyed the lawful command” (Powers, 2009).

The elements of Article 90 have deep implications in providing for penal action to be initiated against the defaulters. The army views violence against superior officers very seriously and striking and assaulting them attracts strong penalties and punishments. Execution of office implies that 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 that officer must maintain discipline at the time would be striking or using violence against the officer in the execution of office. The commanding officer onboard a ship or the commanding officer of a unit in the field is generally considered to be on duty at all times” (Powers, 2009).

If the charged officer was not aware that the victim was a superior officer he may be absolved of the charge and lack of knowledge in this regard can be substantiated by circumstantial shreds of evidence. If the accused officer takes the plea that the assault was committed to discharging his duties or that the victim presented himself in a way that warranted deviation from the provisions of this article, he may be absolved from the charges, provided the necessary evidence is provided to that effect. For example, if the victim attacked the accused unlawfully, he will not have recourse to protection under article 90 of the UCMJ. Disobeying a superior officer is tantamount to insubordination and hence unlawful. If any order that requires the performance of army duties is not implemented by the accused, such an act can be taken as unlawful and penal action can be initiated. However such inferences do not hold ground if orders are illegal, such as those that require the accused to commit a crime. Moreover, the superior officer whose order has not been adhered to must have had the authority to issue such orders and the authority should be based on the prevailing laws and customs of the services.

The orders must be related to duties in the army and include all activities that are important in accomplishing the mission of the army and in safeguarding and promoting the morale and controls in being useful to members of the commanding machinery. They should have a relationship with the upkeep of high standards of service. The orders should not be without the purpose of the army and interfere with the personal and private aspirations of the individuals. At the same time, military personnel cannot refuse lawful orders on the ground of religion or personal beliefs and philosophies. Disobedience of orders that are directed towards the meeting and attaining private goals, and those that are given to enhance the applicable penalties regarding the offenses that the accused may commit, are not punishable under article 90 of the UCMJ.

The orders should not be conflicting with the constitutional and legislated rights of individuals who are given such orders. The orders have to be directed to subordinates and any violation of the rules, directives, and orders, and failure to adhere to previously applicable duties, are not to be punished under provisions of article 90. It is not necessary that the orders have to be given in specific formats as long as they are conveyed to the accused individual. The order has to be clear in asking the subordinate to perform or not to perform a given act; hence the requirement to perform army duties is not considered to be an applicable instruction under this article. There should be evidence of the accused subordinate having knowledge about the order and about the fact that the order has been given by the superior officer. The existence of such knowledge can be substantiated by circumstantial evidence. Intentional disobedience is considered to be a wilful challenge to authority. A subordinate who fails to comply with given orders by way of carelessness, forgetfulness, or by not paying heed to instructions cannot be charged under this article.

Whenever an order is to be complied with at short notice and the accused has no intention to obey it, the failure to make any efforts in complying with the requirements will constitute disobedience. If there is no specified time within which the order has to comply with either directly or by implication, a realistic delay in complying with it will not constitute a violation under this article. If certain orders require performing certain tasks shortly, the present refusal of the accused to perform the tasks will not constitute a violation of the article. If however, such intention to disobey is carried out it will become a violation and hence punishable. All discharged prisoners and civilians that are under the purview of military law and the control of commissioned officers can be brought to book under the provision of Article 90.

Article 92 of the UCMJ relates to failure on the part of subordinates to adhere to orders and regulations.

“Any person subject to this chapter who—

1.  violates or fails to obey any lawful general order or regulation;
2. knowing any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
3. is derelict in the performance of his duties; shall be punished as a court-martial may direct” (Powers, 2009).

The elements of Article 92 also have deep implications in providing for penal action to be initiated against the defaulters.

•  Violation of or failure to obey a lawful general order or regulation.

1. That there was in effect a certain lawful general order or regulation;
2. That the accused had a duty to obey it; and
3. That the accused violated or failed to obey the order or regulation.

• Failure to obey other lawful orders.

1. That a member of the armed forces issued a certain lawful order;
2. That the accused knew the order;
3. That the accused had a duty to obey the order; and
4. That the accused failed to obey the order.

• Dereliction in the performance of duties.

1. That the accused had certain duties;
2. That the accused knew or reasonably should have known of the duties; and
3. That the accused was (wilfully) (through neglect or culpable inefficiency) derelict in the performance of those duties” (Powers, 2009).

The failure to obey lawful general orders and regulations attracts punishment under article 92 of the UCMJ. General orders and regulations are defined as:

“those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:

1. an officer having general court-martial jurisdiction;
2. a general or flag officer in command; or
3. a commander superior to (i) or (ii)” (Powers, 2009).

A general order or regulation as given by a superior officer or commander who has been vested with authority under article 92(1) of the UCMJ will be deemed to be a general order or regulation even if another officer is given the same authority unless and until it gets expired under its conditions or is made inapplicable due to other valid actions. A general order or regulation becomes valid legally until it is against the law and constitution of the USA or other superior orders issues by superior officers. There is no need to prove the existence of knowledge about the existence of a particular general order since knowledge does not comprise an important element of this offense and lack of knowledge in this regard will not be taken as a defense. All provisions of such orders cannot be enforced under Article 92(1). All guidelines and information that are provided by such regulations to conduct military tasks are not enforceable under these provisions. Other orders that are promulgated by the commander of the armed forces are included in article 92(2) and violations of such orders and instructions are not punishable under articles 90, 91, and 92(1). Article 92(2) provides for penal action for violation of regulations that are not necessarily general. In holding an officer guilty of this offense, a charge must be established of that person having prior information about the instructions being in force, and knowledge of such orders has to be provided by using circumstantial evidence.

Every subordinate in the army is duty-bound to obey orders. According to article 92 of the UCMJ, the orders given by a superior are defined as:

“From a superior. A member of the one-armed force who is senior in rank to a member of another armed force is the superior of that member with authority to issue orders which that member must obey under the same circumstances as a commissioned officer of one-armed force is the superior commissioned officer of a member of an-other armed force for Articles 89, and 90. See paragraph 13c(1)” (UCMJ, 2009).

Even if the order is given by one who may not be the commanding officer, it is tantamount to failure to obey lawful orders. Under Article 92(2), failure to adhere to such orders becomes an offense provided the accused officer was duty-bound to obey such orders. Orders of this kind are usually issued by members of the military police. Dereliction of duty is a punishable offense in the army. Duty can be necessitated by way of treaties, statutes, regulations, lawful orders, standard operating procedures, or customs and services. The knowledge about the existence of specific duties can be proved by circumstantial evidence. If an individual ought to have been aware of his duties there is no need to show knowledge in this regard. This can be proved with the help of regulation, training programs, operating manuals, customs, literature, and services, as also testimonies of people who had related evidence or held superior positions. A derelict is essentially described as:

“A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably inefficient manner. “Willfully” means intentionally. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences of the act. “Negligently” means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. “Culpable inefficiency” is inefficiency for which there is no reasonable or just excuse” (UCMJ, 2009).

A person will not be said to be derelict while performing his duties if it results due to incompetence instead of wilful negligence and intentional inefficiency. Under such circumstances, the person will not be held responsible for dereliction of duty nor he can be punished for the same. For example, a recruit who has been trying sincerely during the entire course of the training and fails to qualify in the shooting events will not be said to be a derelict in performing his duties.

Article 80 of the UCMJ provides for punishment as follows:

1. Violation or failure to obey lawful general order or regulation. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
2. Violation of failure to obey other lawful orders. Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to a conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed else wherefor that particular offense.

3. Dereliction in the performance of duties.

• Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months.
• Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months” (UCMJ, 2009).

Article 133 deals with conduct that is not in keeping with what is expected from an officer and gentleman. The law provides that “Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct” (UCMJ, 2009)

The following are the elements of Article 133 that have deep implications in providing for penal action to be initiated against the defaulters.

1. “That the accused did or omitted to do certain acts; and
2. That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

• Gentleman. As used in this article, “gentleman” includes both male and female commissioned officers, cadets, and midshipmen” (Powers, 2009).

The nature of offense under this article relates to:

“Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person’s standing as an officer, cadet, or midshipman or the person’s character as a gentleman. This article prohibits conduct by a commissioned officer, cadet, or midshipman which, considering all the circumstances, is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals property violates both this article and Article 121. Whenever the offense charged is the same as a specific offense outlined in this Manual, the elements of proof are the same as those outlined in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman” (Uniform Code of Military Justice, 2009).

Examples of violations in this regard include making incorrect official declarations, inability to repay and clear debts and outstanding loans, cheating during exams, reading others’ documents without proper authority, defaming and insulting a fellow officer by using derogatory language and words against him in his presence, being under the influence of alcohol and in a disorderly state in public places, being in a known relationship with prostitutes, indulging in criminal activities that involve moral implications, and being unable to maintain and support his family.

As military personnel, soldiers need to imbibe willpower in displaying a strong sense of honesty and selflessness instead of being lazy and self-centered. In the army, seven core values need to be adopted as a way of life in spelling the acronyms of leadership and serving by example. Army personnel must display a high sense of loyalty, sense of duty, respect, integrity, and personal courage. For example, a Major in the army must develop a reputation of being right even though he may be wrong in certain situations. Under provisions of the Uniform Code of Military Justice, a non-commissioned officer does not enjoy similar authority as a commissioned officer. Largely non-commissioned officers do not enjoy the authority to punish their subordinates and punishment can be imparted only by using Article 15 of the UCMJ or by way of court-martial. Although non-commissioned officers cannot administer punishments they have to use other departmental means to initiate punishment and penal proceedings against their subordinates in the event of insubordination by them.

A quote from Rudyard Kipling is pertinent in explaining the issue of discipline amongst army personnel:
“We were rotten for we started—
we were never disciplined:
We made it out a favor—
if an order was obeyed.
Yes, every little drummer ad is rights
and wrongs to mind,
So we had to pay for teaching—
an’ we paid!” (McBride, 1981)

Discipline in the army is necessary and can be defined as a preparedness that results in obedient conduct. This preparedness must be practiced during times of peace also to make the defense forces prepared for wartime emergencies. It is not proper to prepare for war after it has started, hence it is better to be in a high state of alertness and preparedness at all times. This can result only when there is a high sense of discipline amongst soldiers and they follow orders without showing any disrespect to authority. History has proved that the required state of readiness cannot be left to pure chance and the army must prepare for emergencies. There are very few professions that rely to a great extent on a high sense of discipline and compliance of orders at all levels. In essence, an army is viewed as a collection of people who have to put aside their interests, fear, and apprehensions in collectively pursuing the objectives of the entire group. It is only obedience and the marshaling of individual competencies that prepare an army to confront intimidating challenges and diversities even in the highest level of adversities. It is only in this way that goals can be achieved by making concerted efforts and the major force that makes it happen is the instrument of discipline.

By following given orders and showing respect to superiors the ground is prepared for a high sense of discipline amongst army men in harnessing the capacities of individuals in serving the cause and interests of the group. In adopting such a lifestyle a high sense of cohesion emerges within the group thus providing for the unity of purpose. Any military group that can achieve cohesion becomes a truly effective unit. Thus effective discipline is critical in all functions of the military and is more so at the level of the unit from where the effectiveness of the leader emerges, thus providing for a framework that makes effectiveness start from the lowest levels. However, discipline and respect of authority must be values at all levels in the military. Discipline should not be treated as being important only at the lower levels but must be practiced by all officers. Respecting authority is the core value of army personnel and becomes the strength of the chain of command in the entire hierarchy. Those commanders and officers who do not set an example by being disciplined do more harm to the collective efforts of the army as compared to any individual instances of misconduct and harm at the hands of individual soldiers.

As and when military personnel fails to function as per the provided code of conduct or rules and regulations of the army, action can be initiated against them under different provisions of the Uniform Code of Military Justice (UCMJ). The UCMJ was promulgated in 1950 to provide a basis for the procedural and substantive laws to be effectively implemented amongst personnel of the US military service. The provisions of UCMJ apply to all individuals serving in the military and include those who are on current duty such as students who pursue studies at the different military colleges, prisoners of war, and retired army personnel. The UCMJ altered military law in many aspects, mainly regarding the provision of procedural defenses for accused personnel. Such defenses included for the accused, the right to have counsel, to have full access to the charges, to keep quiet, and to be informed about his rights.

Army courts are vested with a great deal of authority while deciding judicial matters about armed forces personnel and it is only in the final stages of appeal that the legal process allows for convicts to approach the US Supreme Court after all avenues by way of court-martial trials are over and appeals have been made in the respective appellate tribunals. Article 37 of the UCMJ provides for full protection of the army judicial process in facilitating the process to be conducted independently:

“(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, concerning the findings or sentence adjudged by the court, or concerning any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority concerning his judicial acts. The foregoing provisions of the subsection shall not apply concerning (1) general instructional or informational courses in military justice if such courses are designed solely to instruct members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

(b) In the preparation of effectiveness, fitness, or efficiency report on any other report or document used in whole or in part to determine whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial” (Uniform Code of Military Justice, 2009).

Military law is different from civilian law in that the rights of personnel serving in the armed forces are not as exhaustive as rights of civilians since the army is bound by the overruling demand of duties and discipline. The need for making such regulations that are different from civilian rules is recognized vide Article I of section 8 of the US Constitution. Till the time the UCMJ was enacted military justice was practiced by the army and navy independently under provisions of the Articles of War and Articles for the Government of the Navy respectively. All members of the armed forces are subject to be charged uniformly under provisions of the UCMJ and the same procedural defenses are guaranteed to them.

Some aspects of the UCMJ relate to common crimes such as murders, rapes, theft, and arson, and the punishment for such offenses is meted out in the same manner as under the state laws. Other sections relate to offenses that are unique to the defense forces such as absence, disobeying orders, insubordination, and irregularities committed during combat. Absence pertains to staying away from duty without prior sanction of leave and to desertion from duty. Such offenses are typical to the armed forces and almost 75% of court-martial relate to charges under article 86, about absence without prior sanction being obtained. Other common offenses are insubordination in not obeying the instructions of superiors and personnel are charged under article 92 of the UCMJ. Individuals are charged for violations such as mutiny and contempt under article 94. Offenses related to irregularities during combat are charged under article 105 of the UCMJ.

The general Articles in the UCMJ prescribe a code of conduct for some nonspecific traits. Any officer who indulges in activities that are unbecoming of an officer and a gentleman is charged under article 133. Article 134 requires all officers to exhibit good moral character and a high sense of discipline so that there is no discredit brought to the armed forces. The legal and constitutional validity of all these provisions has been upheld by the Supreme Court vide First Amendment issued under Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439, 1974 (Uniform Code of Military Justice, 2009).

Nonjudicial punishment can be provided for under Article 15 of the UCMJ for minor offenses whereby the accused officer is made to present himself before the commanding officer, who passes the ruling and the sentence is imposed. Punishment in the military is mostly nonjudicial in providing the commanding officer with the authority to impose discipline. This process is fast and efficient and the records of the accused officer are not marked by court-martial proceedings and convictions. The UCMJ provides for a three-tier courts system whereby criminal matters are dealt with by court-martial, which is in line with the trials conducted in civil courts. Court-martial proceedings are also of three types; general, special, and summary courts-martial. A general court-martial is applied in the case of serious crimes whereby the court functions with a minimum of five members and the defendant too can exercise the right to have the case heard by a military judge. In a general court-martial, the prosecutors, defense counsels, and military judges should be lawyers. The general court-martial is empowered to impose penalties in keeping with the punishments provided by the UCMJ. As per article 18 of the UCMJ, the jurisdiction of court-martial has been defined:

Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. However, a general court-martial of the kind specified in section 816(1)(B) of this title (article 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to the trial as a noncapital case” (Uniform Code of Military Justice, 2009).

Article 32 of the UCMJ provides for investigation regarding the trials by court-martial in the case of military offenders. The article as follows is quite exhaustive in outlining the conditions that warrant a trial by court-martial:

1. No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter outlined in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
2. The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation, full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire on his behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
3. If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence on his behalf.
4. The requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute judicial error” (Uniform Code of Military Justice, 2009).

The special court-martial relates to intermediate offenses. Such courts have a minimum of three members and the defendant can choose to be tried by a judge from the military. Six months of imprisonment is the maximum punishment that can be imposed by a special court and could also include the surrender of pay, demotion in rank, and a discharge on account of bad conduct. Minor offenses are dealt with by summary courts whereby enlisted officers are prosecuted. The case is heard by a single officer and the maximum penalty is imprisonment of one month, surrender of two-third of one month’s salary, and demotion in rank. The jurisdiction of special courts-martial are defined vide article 19 of the UCMJ

“Subject to section 817 of this title (article 17), special courts-martial have jurisdiction to try persons subject to this chapter for any noncapital offense made punishable by this chapter and, under such regulations as the President may prescribe, for capital offenses. Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months. A bad-conduct discharge may not be adjudged unless a complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could not be detailed” (Uniform Code of Military Justice, 2009).

In cases where the death penalty is involved under provisions of the UCMJ, a corrective discharge or confinement of a minimum one-year duration is reviewed by the Court of Criminal Appeals (CCA). All sentences imposed by a court-martial have to be confirmed by the CCA before the execution of the sentence. Usually, a panel comprising of three judges reviews convictions by court-martial. The highest civilian court that reviews the decisions of military courts is the US Court of Appeals for the Armed Forces (USCAAF). Formerly known as the Court of Military Appeals, the USCAAF is an appellate court and comprises of three civil judges that are appointed by the US President and serve terms of 15 years each. The USCAAF reviews cases of the death penalty and all matters referred by the Judge Advocate General after it has been reviewed by the CCA and other bodies that hear discretionary appeals. The decision of the USCAAF can be appealed in the Supreme Court of the US.

The UCMJ has been criticized for restricting the constitutional rights of military personnel. The non-judicial punishment administered vide article 15 has been disapproved of being prone to abuse, prejudice, and conflict of interest. Since the military courts differ from civil courts, the jurisdiction of the UCMJ has been restricted by the Supreme Court. Discharged personnel are not prosecuted by court-martial for wrongdoings while serving in the army. Civilian employees in the army and civilian dependents of army personnel posted abroad are not liable to be prosecuted under provisions of the UCMJ. Moreover, crimes committed by members of the armed forces have to be necessarily concerned with military services and are dealt with only by the UCMJ.

Works Cited

McBride Chief Master Sergeant Loyd W, Discipline, 1981.

Powers Rod, US Military Web.

“Uniform Code of Military Justice”.

UCMJ, Further Readings.