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: BCD, TF, 6 months, E-1 (but see paragraph 18d (Note), Part IV, MCM). (Category 1)
b. SAMPLE SPECIFICATIONS:
Violation or failure to obey other lawful written order:
In that _________, (personal jurisdiction data), having knowledge of a lawful order issued by _________, to wit: (paragraph, (the Combat Group Regulation No. _________) (USS _________, Regulation _________), dated _________) (_________), an order which it was (his) (her) duty to obey, did, (at/on board— location), on or about _________, fail to obey the same by (wrongfully) _________.
Failure to obey other lawful order:
In that _________, (personal jurisdiction data), having knowledge of a lawful order issued by _________ (to submit to certain medical treatment) (to) (not to ________) (________), an order which it was (his) (her) duty to obey (at/on board— location), on or about _________, fail to obey the same (by (wrongfully) _________.
c. ELEMENTS:
(1) That (state the name and rank or grade of the person issuing the order or regulation), a member of the armed forces, issued a lawful order, to wit: (state the date and specific source of the alleged order and quote the order or the specific portion thereof);
(2) That the accused had knowledge of the order;
(3) That the accused had a duty to obey the order; and
(4) That (state the time and place alleged), the accused failed to obey the order by (state the manner alleged).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Applicability of this instruction. This instruction should be given in any case arising under Article 92(2), when the written order is not “general” in the sense of Article 92(1).
NOTE 3: Lawfulness of order or regulation. 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 person 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 4: Exceptions to prohibited acts. When an alleged order 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, an instruction substantially as follows must be given:
When an order 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 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
e. REFERENCES: US v. Cuffee, 10 MJ 381 (CMA 1981).