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) Willfully disobeying warrant officer: DD, TF, 2 years, E-1. (Category 1)
(2) Willfully disobeying a noncommissioned or petty officer: BCD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), having received a lawful order from _________, a __________ officer, then known by the said __________ to be a __________ officer, to __________, an order which it was (his) (her) duty to obey, did (at/on board--location), on or about __________, willfully disobey the same.
c. ELEMENTS:
(1) That (state the time alleged), the accused was (an enlisted service member) (a warrant officer);
(2) That the accused received a certain lawful order to (state the terms of the order allegedly given) from (state the name and rank or grade of the person alleged);
(3) That the accused then knew that (state the name and rank or grade of the person alleged) was a (warrant) (noncommissioned) (petty) officer;
(4) That the accused had a duty to obey the order; and
(5) That (state the time and place alleged), the accused willfully disobeyed the order.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Willful disobedience” means an intentional defiance of authority.
NOTE 2: Lawfulness of order. The lawfulness of the order 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 order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised. To be lawful, the order must relate to specific military duty and be one that the noncommissioned/warrant/petty officer was authorized to give the accused. The order must require the accused to do or stop doing a particular thing either at once or at a future time. An order 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 services. An order 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 order was lawful, the MJ should advise the members as follows:
As a matter of law, the order in this case, as described in the specification, if in fact there was such an order, was a lawful order.
NOTE 3: 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 order was understandable, (the form of the order) (and) (the method by which the order was communicated to the accused) (is) (are) not important. The communication, however, must amount to an order from a (noncommissioned) (warrant) (petty) officer that is directed personally to the accused, and the accused must know it is from a (noncommissioned) (warrant) (petty) officer.
NOTE 4: Divestiture of status raised. When the issue has arisen whether the officer’s conduct divested him or her of the status of a noncommissioned, warrant, or petty officer, the following instruction is appropriate:
The evidence has raised an issue as to whether (state the name and rank or grade of the person alleged) conducted himself/herself prior to the alleged offense in a manner which took away his/her status as a (noncommissioned) (warrant) (petty) officer. A (noncommissioned) (petty) (warrant) officer whose own (language) (and) (conduct) under all the circumstances depart(s) substantially from the required standards appropriate for that individual’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 the 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)) only if you are satisfied beyond a reasonable doubt that (state the name and rank or grade of the person alleged) did not abandon his/her status as a (noncommissioned) (warrant) (petty) officer.
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge and Intent), is ordinarily applicable.