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: DD, TF, 2 years, E-1 (but see paragraph 18d (Note), Part IV, MCM). (Category 1)
b. SAMPLE SPECIFICATION:
In that _________ (personal jurisdiction data), did, (at/on board—location), on or about _________, (violate) (fail to obey) a lawful general (order) (regulation), which was (his) (her) duty to obey, to wit: paragraph _________, (Army) (Air Force) Regulation _________, dated _________) (Article _________, U.S. Navy Regulations, dated _________) (General Order No. _________, U.S. Navy, dated _________) (_________), by (wrongfully _________).
c. ELEMENTS:
(1) That there was in effect a certain lawful general (order) (regulation), to wit: (state the date and specific source of the alleged general order or regulation and quote the order or regulation or the specific portion thereof);
(2) That the accused had a duty to obey such (order) (regulation); and
(3) That (state the time and place alleged), the accused (violated) (failed to obey) this lawful general (order) (regulation) by (here the military judge should enumerate the specific acts and any state of mind or intent alleged which must be established by the prosecution in order to constitute the violation of the order or regulation).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Proof of existence of order or regulation. The existence of the order or regulation must be proven or judicial notice taken.
NOTE 3: Lawfulness of order or regulation. The lawfulness of the order or regulation 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 or regulation must relate to specific military duty and be one that the person was authorized to give the accused. The order or regulation must require the accused to do or stop doing a particular thing either at once or at a future time. An order or regulation 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 or regulation 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 or regulation was lawful, the MJ should advise the members as follows:
As a matter of law, the (order) (regulation) in this case, as described in the specification, if in fact there was such (an order) (a regulation), was a lawful (order) (regulation).
NOTE 4: Dispute as to whether order was general. If there is a factual dispute whether the order was general, that dispute must be resolved by the members in connection with their determination of guilt or innocence. The following instruction may be given:
General (orders) (regulations) are those (orders) (regulations) which are generally applicable to an armed force and which are properly published by (the President) (the Secretary of (Defense) (Homeland Security) (or) (a military department).
General (orders) (regulations) also include those (orders) (regulations) which are generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof and which are issued by (an officer having general court-martial jurisdiction) (or) (a general or flag officer in command) (or) (a commander superior to one of these).
You may find the accused guilty of violating a general (order) (regulation) only if you are satisfied beyond a reasonable doubt that the (order) (regulation) was general.
NOTE 5: Order issued by previous commander. If appropriate, the following additional instruction may be given:
A general (order) (regulation) issued by a commander with authority to do so retains its character as a general (order) (regulation) when another officer takes command, until it expires by its own terms or is rescinded by separate action.
NOTE 6: Orders or regulations containing conditions. When an alleged general order or regulation prohibits a certain act or acts “except under certain conditions,” (e.g., “except in the course of official duty”), and the issue is raised by the evidence, the burden is upon the prosecution to prove that the accused is not within the terms of the exception. In such a case, the MJ must inform the members of the specific exception(s) when listing the elements of the offense. Additionally, under present law an instruction substantially as follows must be provided:
When a general (order) (regulation) prohibits (a) certain act(s), except under certain conditions, then the burden is on the prosecution to establish by legal and competent evidence beyond a reasonable doubt that the accused does not come within the terms of the exception(s).
NOTE 7: Mens Rea. When there is an issue regarding mens rea, see Elonis v. US, 135 SCt 2001 (2015) and US v. Haverty, 76 M.J.199 (CAAF 2017).
e. REFERENCES: US v. Cuffee, 10 MJ 381 (CMA 1981).