What is Military Insubordination?
The military chain of command is a time-tested method of maintaining discipline and order, enabling the armed forces to complete their missions efficiently. Service members whose behavior disrupts the chain of command must face the consequences for insubordination as defined in the Uniform Code of Military Justice (UCMJ).
Anaya-McKedy, PC, specializes in providing military legal defense against insubordination, a potentially serious charge that could lead to a court-martial without experienced legal assistance.
How can I be charged with insubordination?
Service members are subject to military discipline for insubordination against a superior officer if they commit any of the following offenses:
- Assaulting a superior officer
- Disobeying a direct order
- Disrespectful treatment of an officer regardless of military branch or command association
Assaulting an Officer
The UCMJ defines an “officer” as a:
- Superior officer
- Noncommissioned officer
- Warrant officer
- Petty officer
“Offering violence” to a superior officer is similar to the definition in the civilian legal code:
- Assault and battery
- Striking an officer
- Using threatening words or gestures
- Drawing or brandishing a weapon
- Posing one’s hands in a threatening manner
The UCMJ further refines its definition of “striking” an officer to include any unwanted touching, independent of injury to the officer.
One distinction in assault charges is that Article 90 of the UCMJ requires the accused to know their victim was a superior officer. However, service member without this knowledge could still be found guilty of assault per the definition in UCMJ Article 128 without being considered insubordinate.
Also, the officer must be acting in an official capacity at the time of the assault to consider the action insubordination. For example, a peacetime commander stationed in the US may not always be on duty, unlike a field commander or ship’s captain while at sea.
Disobeying a Direct Order from a Superior
Service members are not allowed to disobey a lawful order from a superior officer. Included are specific orders from a direct superior officer (Article 90) and orders or regulations generally applicable to service members or their unit (Article 92). The UCMJ defines an order from a superior officer as:
- A command to perform or cease performing a specific action
- A command directed at a specific service member
- A command that is part of the service member’s military duty
- A lawful command
Proving lawfulness is challenging but essential. A lawful order is one that is not in conflict with the United States Constitution or applicable laws – military, admiralty, or binding international treaties in which the US is a signatory. A lawful order also does not interfere with a person’s constitutional rights. However, all orders are presumed lawful, and a service member who disobeys an order may be facing a court-martial.
If a service member receives an order they believe is unlawful, they must first seek clarification. If they still believe the order to be unlawful, the service member has a duty to disobey the order. A commander issuing an unlawful order is effectively ordering a service member to commit a crime. Subordinates who obey an unlawful order are equally as guilty as their commander. A service member who claims that they were only following orders in their defense of a crime (also known as the Nuremberg defense) usually loses their case.
The question of whether an order is lawful is murky. Lawfulness in a case is typically decided by a judge well after the order was issued and the alleged insubordination occurred. Additionally, the intention to disobey an order is not considered violating an order. Disobeying only occurs when a service member fails to perform the order in question.
Treating a Superior Officer with Disrespect
Service members are required to treat their superior officers respectfully. Examples of disrespecting a superior officer may include failing to salute an officer, describing an officer using obscene language, or openly mocking an officer.
Insulting a superior officer is a punishable offense even if the alleged insults are accurate. Additionally, an insubordinate service member can be charged with disrespect regardless of whether the superior officer was present at the time of the alleged conduct. However, comments from service members’ private conversations are not subject to charges.
Don’t let ambiguous areas of the UCMJ put your military career or your future in jeopardy. The experienced defense attorneys at Anaya-McKedy have practiced both military and civilian law, and they have the knowledge you need for building a solid legal defense.
What defenses are available for insubordination charges?
The penalties for insubordination include dishonorable discharge, loss of pay, and imprisonment, underscoring how serious the military considers this offense. Defense strategies for insubordination are limited but may be useful to a service member facing such a charge:
- The accused was unaware that the claimant was a superior officer.
- The accused was already responding to another lawful order or duty.
- The superior officer’s behavior toward another service member was disrespectful (for example: an officer strikes a service member who responds in defense).
How do I get legal assistance for an insubordination case?
Service members involved in an insubordination case have many details to sort out when building a coherent, legal strategy. While the armed services will assign a military attorney to your case, you should also consider consulting with a qualified civilian attorney specializing in military justice. A private attorney doesn’t have a chain of command, can speak and act independently, and works exclusively on your behalf.
Let the attorneys at Anaya-McKedy help you build a legal strategy for defending against insubordination charges. We are a Colorado Springs firm specializing in military law in addition to our civilian criminal defense practice, and we have experience with working with service members at Fort Carson and Peterson Air Force Base. Contact Anaya-McKedy today for a free consultation and learn how we can build a defense for you.