Divestiture Case Study

Statement of Assignment

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?

Issue

Whether “divestiture” is a potential defense in a case pertaining to the military offense of disrespect to a superior officer, an Army First Sergeant?

Brief Answer

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.

United States v. Sanders, 41 M.J. 485 (1995). It was found that there was no restriction made by the military judge to the jury about whether or not to consider certain evidence over other evidence making it where the judge did not err in his instruction. The judge in a case is to instruct the jury what and what not to take into account for the ruling of the case. In this particular case, the military judge mentioned on three separate occasions the language and conduct of the victim without bringing up the victim’s alleged invitation. The court ruled that it could not convict the appellant under this theory for assault on a noncommissioned officer while performing his duty if the noncommissioned officer did not perform to his position. As a means of using the facts to make a decision, all the facts and circumstances to the issue must be considered and

Diggs, 52 M.J. 251, (2000) shows that even outside of the office one may not be seen as divesting their rank or status. In this case, Ronald L. Diggs, the appellant, was found naked in the victim’s bedroom along with the victim’s wife. After the encounter with the naked appellant, the victim took it upon himself to take 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