NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) In time of war: Death. (Criteria)
(2) Any other time: DD, TF, 5 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), having received a lawful command from __________, (his) (her) superior commissioned officer, then known by the said __________ to be (his) (her) superior commissioned officer, to __________, or words to that effect, did, (at/on board—location), on or about __________, willfully disobey the same.
c. ELEMENTS:
(1) That the accused received a certain lawful command to (state the terms of the command allegedly given) from (state the name and rank of the alleged superior commissioned officer);
(2) That (state the name and rank of the alleged superior commissioned officer who allegedly gave the command) was the superior commissioned officer of the accused;
(3) That the accused then knew that (state the name and rank of the alleged superior commissioned officer) was (his) (her) superior commissioned officer; (and)
(4) That (state the time and place alleged), the accused willfully disobeyed the lawful command; [and]
NOTE 2: Aggravating factor alleged. In the event the aggravating factor is alleged, the military judge must advise the court members of the aggravating factor as an element.
((5)) That the offense was committed in time of war.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Willful disobedience” means an intentional defiance of authority.
“Superior commissioned officer” means a commissioned officer superior in rank or command.
NOTE 3: Lawfulness of command. The lawfulness of the command is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See US v. New, 55 MJ 95 (CAAF 2001); US v. Deisher, 61 MJ 313 (CAAF 2005). If the MJ determines that, based on the facts, the command was not lawful, the MJ should dismiss the affected specification, and the members should be so advised. To be lawful, the command must relate to specific military duty and be one that the superior commissioned officer was authorized to give the accused. The command must require the accused to do or stop doing a particular thing either at once or at a future time. A command is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service. A command is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it is expected the accused may commit. (The four preceding sentences may be modified and used by the MJ during a providence inquiry to define “lawfulness” for the accused.) When the MJ determines that, based on the facts, the command was lawful, the MJ should advise the members as follows:
As a matter of law, the command in this case, as described in the specification, if in fact there was such a command, was a lawful command.
NOTE 4: Form or method of communication in issue. If the evidence raises an issue as to the form or method of communicating the command, give the following:
As long as the command was understandable, (the form of the command) (and) (the method by which the command was communicated to the accused) (is) (are) not important. The combination, however, must amount to a command from the accused’s superior commissioned officer that is directed personally to the accused, and the accused must know it is from (his) (her) superior commissioned officer.
NOTE 5: Time for compliance. If the evidence raises an issue as to when the accused was to comply with the command, the following instruction is appropriate:
When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused’s present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.
NOTE 6: Divestiture of status raised. When the issue has arisen as to whether the officer’s conduct divested him or her of the status of a superior commissioned officer, the following instruction is appropriate:
The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the charged offense in a manner which took away his/her status as a superior of the accused. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer’s rank and position under similar circumstances is considered to have abandoned that rank and position.
In determining this issue, you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of (specify the offense(s) alleged) only if you are satisfied beyond a reasonable doubt that (state the name and rank of the officer alleged), by his/her (conduct) (and) (language) did not abandon his/her status as a superior commissioned officer of the accused.
NOTE 7: Distinction between abandonment of status and office. Note that the above abandonment instruction mentions abandonment of the status as a commissioned officer, but not abandonment of “execution of office.” In this regard, it is different than the abandonment instruction in 3a-13-2, but similar to the offense in 3a-13-1.
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.