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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 91 Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer

This article applies to persons accused of disrespecting a warrant officer, noncommissioned officer or petty officer. There are three instances in which service members shall come under the purview of Article 91 and face court martial:

  • striking or assaulting a noncommissioned officer, warrant officer or petty officer, or
  • willfully disobeying the lawful order of a noncommissioned officer, warrant officer, or petty officer, or
  • treating a noncommissioned officer, warrant officer, or petty officer with contempt or disrespectful language

Elements and Explanation of Assault

The following four elements define the article and must be investigated to gain a fair assessment of the case.

a. The accused was an enlisted service member or warrant officer

b. The accused attempted to inflict bodily harm on the officer or struck him/her

c. The attempt or action on the victim occurred when he/she was performing his official duties

d. The accused was aware, at the time, that the victim was a warrant, noncommissioned or petty officer

Elements A and D also apply to 'willful disobedience' and 'contempt or disrespect' aspects of Article 91. In all three cases, the accused should have performed or attempted to perform the wrongful action (assault, disobedience or disrespect) when the officer was executing his/her office.

The nature of assault is also a determining factor in Article 91. In this regard, the assault can be of three types. Assault by attempt refers to an attempt to inflict bodily harm in a way that goes beyond mere preparation. Assault by offer is an intentional or culpably negligent act that allows the victim to reasonably believe that he/she will be subject to bodily harm. Culpable negligence is a gross or deliberate disregard for foreseeable consequences. It goes beyond simple negligence where there is a failure to use due care. Assault consummated by a battery refers to unlawfully and intentionally inflicting violence or force.

Elements and Explanation of Willful Disobedience

To be found guilty of willful disobedience, it should be established that the accused intentionally disobeyed a certain lawful order from the petty, warrant or noncommisioned officer in question. He/she should also have a duty to obey the order.

The order must have been directed personally to the accused, who must be aware that he/she is receiving it from a petty, noncommisioned or warrant officer. The order must be understandable, and the method of delivering the order is not important.

Elements and Explanation of Contempt or Disrespect

Contempt includes all rude and insulting conduct directed at a noncommisioned, petty or warrant officer. It also includes the act of attributing qualities like worthlessness and disreputableness to the officer. Disrespect can be conveyed through words or acts that demonstrate rudeness, indifference, disdain, silent insolence and impertinence towards the officer and within his/her sight and hearing.

The elements under 'contempt or disrespect' include:

  • Doing or failing to do certain acts or directing certain behavior at the officer, as alleged
  • Using certain language as alleged
  • Being disrespectful to the rank and state of the officer by performing the alleged actions or engaging in the alleged behavior

Defense under Article 91

Divestiture of status can be cited as a defense under Article 91. When the evidence suggests that the victim acted in a way that took away his/her status as a petty, noncommisioned or warrant officer in the execution of office, a careful examination is merited. If it is believed beyond a reasonable doubt that the officer did not behave in a manner unbecoming of his/her rank and did not abandon his/her status, the accused shall be deemed guilty.

Maximum Punishment

- The maximum punishment for assault is dishonorable discharge and forfeiture of all pay and allowances. Depending on whether the victim in question is a noncommissioned/petty officer, superior noncommisioned/petty officer or warrant officer, the confinement can be one year, three years or five years respectively.

- The maximum punishment for willfully disobeying the lawful order of a petty or noncommissioned officer is dishonorable discharge, total forfeiture and a one-year jail term. The same applies for willfully disobeying a warrant officer, but the confinement period in this case is two years.

- The maximum punishment for contempt and disrespect to a warrant officer is bad-conduct discharge, total forfeiture and 9-month confinement. When the victim is a superior noncommisioned/petty officer, total forfeiture, bad-conduct discharge and 6-month confinement shall be imposed. In case of other petty or noncommisioned officer, confinement of three months and forfeiture of two-thirds of monthly pay for a period of three months, shall be imposed.

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