You have asked me to prepare a memorandum addressing the following questions: What are the elements of disrespect in terms of the Uniform Code of Military Justice? Can “divestiture” be used as a potential defense?
Whether “divestiture” is a potential defense in a case pertaining to the military offense of disrespect to a superior officer, an Army First Sergeant?
Yes. The Uniform Code of Military Justice states that violation of article 91 is any enlisted member who is disrespectful in language toward a noncommissioned officer while that officer is in the execution of his office shall be punished as a court-martial may direct. However, there is basis where divestiture can be used as a defense. Divestiture can be applied and used as a defense in a case where the accused is charge with disrespect to a superior noncommissioned officer.
For the betterment of his son, Fred Payne contacted Plenibux & Moore for legal assistance. Sergeant Ima Payne, United States Army Infantry is being criminally charged for “disrespect.” SGT Payne yelled and cursed at a superior noncommissioned officer, First Sergeant.
The Uniform Code of Military Justice, Article 91 (10 U.S.C. § 891), states that any enlisted member who is disrespectful in a language toward a noncommissioned officer while that officer is in the execution of his office shall be punished as a court-martial may direct.
According to the Manual for Courts-Martial, United States pt. IV, 15b, (2008), there are many elements that classify as disrespect in language toward a noncommissioned officer:
1. The accused was an enlisted member
2. The accused used certain language
3. The behavior/language occurred was indeed toward...
... middle of paper ...
...his superior to the Military Police station for the appellant to turn himself in for the crime he committed with the victim’s wife. It was outside of the office, but the victim acted in a professional manner to get the matter handled appropriately. There was evidence that the arresting officer, Sergeant Vaden, handled the situation in a professional manner in terms of apprehending the appellant and taking him to the military police station.
SGT Payne may use divestiture as a defense if and only if he has credible evidence showing that his First Sergeant falls under the three elements of proof. If such elements are evident, SGT Payne’s disrespect towards his superior may have been necessary.
There is not enough information and facts to determine if the First Sergeant divested himself and if SGT Payne was provoked in such a manner.
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