UCMJ ARTICLE 90: ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER

Executive Summary

Key Takeaway: UCMJ Article 90 criminalizes striking or assaulting a superior commissioned officer and willfully disobeying lawful commands from a superior commissioned officer. The offense requires proof that the accused knew the victim was a superior commissioned officer, that the accused struck or assaulted the officer or willfully disobeyed a lawful command, and that the disobedience was willful rather than accidental or through misunderstanding. Maximum punishment for striking or assault in time of war may include death. In time of peace, striking or assault carries maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. For willful disobedience in time of war, death may be imposed. In time of peace, maximum punishment for willful disobedience is dishonorable discharge, forfeiture of all pay and allowances, reduction to lowest enlisted grade, and confinement for 5 years.

What Article 90 Covers: Striking a superior commissioned officer while the officer is in the execution of office, assaulting a superior commissioned officer while the officer is in the execution of office, drawing or lifting up any weapon or offering violence against a superior officer while in the execution of office, and willfully disobeying a lawful command of a superior commissioned officer. The striking or assault provisions criminalize physical violence against superior officers during performance of duties. The willful disobedience provision criminalizes intentional refusal to obey lawful commands from superior commissioned officers.

Critical Article 90 Elements: The victim must be a commissioned officer superior in rank or command to the accused. The accused must have known the victim was a superior commissioned officer. For striking or assault, the officer must have been in the execution of their office at the time. For willful disobedience, the command must have been lawful, directed personally to the accused, the accused must have had knowledge of the command, and the disobedience must have been willful meaning intentional refusal rather than inability or misunderstanding. Article 90 applies to personal commands given to specific individuals, while violations of general orders or regulations are ordinarily charged under Article 92.

Why Article 90 Cases Present Unique Challenges: Proving willfulness rather than misunderstanding or inability requires evidence of the accused's mental state and intent. Determining whether a command was lawful involves legal analysis that may not be obvious to service members at the time. Distinguishing between inability to comply and refusal to comply affects whether Article 90 applies. The severity of maximum punishments creates high stakes requiring careful defense strategy. Commands that appear unlawful may actually be lawful and vice versa creating difficult judgment calls.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about an incident with a superior officer or about disobeying orders. Do not attempt to explain your actions or reasons for not following orders without defense counsel present. Preserve all documentation of the order or command given. Document the circumstances and context of the incident. Consult with experienced military defense counsel immediately before providing any statement.

If you are under investigation for striking, assaulting, or willfully disobeying a superior officer, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal intervention can establish whether commands were lawful, whether you had actual ability to comply, and whether your conduct constituted willful disobedience or inability to perform.

Understanding UCMJ Article 90

Article 90 of the Uniform Code of Military Justice addresses two distinct categories of offenses against superior commissioned officers. First, it criminalizes striking or assaulting superior commissioned officers while they are in the execution of their office. Second, it criminalizes willfully disobeying lawful commands from superior commissioned officers. These provisions protect the authority of commissioned officers and maintain the chain of command essential to military discipline and effectiveness.

The policy behind Article 90 recognizes that physical violence against officers and willful disobedience of lawful commands strike at the foundation of military order. Officers must be able to give orders with confidence they will be obeyed and must be protected from physical attack while performing their duties. Article 90 enforces these fundamental requirements through severe maximum punishments reflecting the seriousness of these offenses.

Article 90 applies to all service members when they are subordinate to the victim officer. Enlisted members can violate Article 90 by striking, assaulting, or willfully disobeying commissioned officers senior to them. Junior commissioned officers can violate Article 90 through the same conduct toward senior officers. Defending service members accused of willful disobedience requires analysis of lawfulness.

Elements of Article 90 (Striking or Assault)

To obtain a conviction for striking or assaulting a superior commissioned officer under Article 90, the prosecution must prove four elements beyond a reasonable doubt.

Element 1: The victim was a commissioned officer

The person struck or assaulted must have been a commissioned officer. This includes officers in all military services who hold commissions. The provision does not protect warrant officers or enlisted members. Separate UCMJ provisions address assaults on other categories of personnel.

Element 2: The victim was superior in rank or command to the accused

The victim officer must have been superior to the accused either in rank or in command authority. An officer senior in rank is superior. An officer in the chain of command over the accused is also superior even if not significantly senior in rank.

Element 3: The accused knew the victim was a superior commissioned officer

The accused must have known the victim was a superior commissioned officer. Genuine lack of knowledge negates this element. However, circumstances such as rank insignia and the military setting typically establish knowledge.

Element 4: The accused struck or assaulted the superior commissioned officer while the officer was in the execution of office

The accused must have struck (made physical contact) or assaulted (attempted or offered to strike) the officer. The officer must have been in the execution of their office at the time. This means the officer was performing official duties or functions.

Striking means making physical contact with the officer. Any unauthorized touching constitutes striking. The degree of force is immaterial. A light touch or push satisfies the striking element if done intentionally.

Assault means an attempt or offer with unlawful force or violence to do bodily harm to the officer. An assault may be completed without actual physical contact. Offer of violence requires more than words. There must be a present, menacing act showing apparent ability. Mere threatening words are insufficient. Threatening gestures or movements toward the officer coupled with apparent ability to carry out the threat constitute assault.

In the execution of office means the officer was engaged in performance of military duties or functions. This includes giving orders, conducting inspections, performing administrative tasks, leading military operations, or any other official activity. The officer need not have been in uniform but must have been performing official functions.

Elements of Article 90 (Willful Disobedience)

To obtain a conviction for willfully disobeying a superior commissioned officer under Article 90, the prosecution must prove five elements beyond a reasonable doubt.

Element 1: The victim was a commissioned officer

The person giving the command must have been a commissioned officer.

Element 2: The victim was superior in rank or command to the accused

The officer giving the command must have been superior to the accused either in rank or in command authority.

Element 3: The accused knew the victim was a superior commissioned officer

The accused must have known the person giving the command was a superior commissioned officer.

Element 4: The superior commissioned officer gave the accused a lawful command

The officer must have given a command. A command is a direction or order from a superior officer requiring the subordinate to take or refrain from some action. The command must have been lawful. A lawful command is one that directs the accused to do or refrain from doing something within the scope of military authority and not contrary to law, regulation, or the Constitution.

Lawful commands include orders to perform military duties, orders related to maintenance of discipline and good order, orders implementing regulations and policies, and any direction within the scope of military authority that does not violate law.

Unlawful commands include orders to commit crimes, orders that have no valid military purpose, orders that violate constitutional rights without proper military justification, and orders that exceed the authority of the officer giving them.

The lawfulness of a command is determined objectively, not by the accused's belief. However, determining lawfulness can be complex and may not be obvious to service members at the time.

Element 5: The accused willfully disobeyed the command

The accused must have willfully disobeyed the command. Willful disobedience means intentional refusal to obey. The disobedience must have been a conscious, deliberate choice not to comply.

Willful disobedience includes:

• Expressly refusing to obey
• Stating an intention not to comply and then failing to comply
• Deliberately failing to carry out the command
• Intentionally doing the opposite of what was commanded

Not willful disobedience:

• Inability to comply due to physical or mental incapacity
• Failure to understand the command through no fault of the accused
• Reasonable mistake about what was required
• Attempting in good faith to comply but failing
• Forgetting the command if not deliberately put out of mind

The government must prove beyond a reasonable doubt that the disobedience was willful. If the evidence shows inability rather than unwillingness, or misunderstanding rather than refusal, Article 90 is not violated though other offenses such as Article 92 might apply.

Additional Element for Wartime Offenses

When maximum punishment of death is sought for offenses committed in time of war, the prosecution must prove an additional element:

Element: The offense was committed in time of war

The government must establish that the striking, assault, or willful disobedience occurred during a period legally defined as time of war. This additional element is required only when the government seeks wartime maximum punishments including potential death penalty.

Lawful Commands

The lawfulness of a command is critical to Article 90 willful disobedience charges. Only lawful commands can be the basis of Article 90 violations.

Article 90 contemplates a personal command directed specifically to the accused. Violations of general orders or regulations are ordinarily charged under Article 92 rather than Article 90. The command must be given to the accused individually or as part of a specific group, not merely published as a general regulation or standing order applicable to all personnel.

A command is lawful if it directs the accused to do or refrain from doing something that is within the military's authority and not contrary to the Constitution, federal law, regulation, or other lawful order. The command must have a valid military purpose and must not be given solely to harass or humiliate the accused.

Clearly lawful commands include:

• Orders to perform military duties within the accused's position and capabilities
• Orders to maintain standards of military appearance and conduct
• Orders implementing lawful regulations and policies
• Orders necessary for mission accomplishment
• Orders maintaining discipline and good order

Clearly unlawful commands include:

• Orders to commit crimes such as murder, assault, theft, or other criminal acts
• Orders to falsify official documents or provide false testimony
• Orders that violate constitutional rights without valid military justification
• Orders given for purely personal purposes unrelated to military function
• Orders to engage in sexual acts or other conduct clearly outside military authority

An order requiring performance of a military duty is presumed lawful. It is disobeyed at the subordinate's peril. This presumption does not apply to patently illegal orders such as orders to commit crimes or clearly unconstitutional commands. However, for orders that appear questionable but may be lawful, the burden of risk falls on the subordinate who chooses to disobey.

Questionable commands may appear unlawful but actually be lawful, or may appear lawful but actually violate law or regulation. When in doubt, service members face difficult choices. Disobeying a command that turns out to be lawful may result in Article 90 conviction. Following a command that turns out to be unlawful may result in prosecution for following unlawful orders.

The better practice when uncertain is to respectfully seek clarification, request to speak with higher authority, or consult with legal counsel if time permits. However, in operational settings, time for deliberation may not exist.

Willfulness

The willfulness element distinguishes Article 90 from Article 92 (failure to obey order or regulation). Article 90 requires proof of intentional refusal. Article 92 may be violated through negligence or failure to comply without requiring proof of willful refusal.

Willfulness means the accused made a conscious decision not to obey. The government must prove the accused had knowledge of the command and deliberately chose not to comply. Evidence of willfulness may include express refusal, statements of intent not to comply, deliberate failure to act, pattern of defiance, or circumstances showing the accused chose disobedience over obedience.

Lack of willfulness may be shown by evidence of inability to comply, genuine misunderstanding of the command, reasonable mistake about what was required, good faith attempt to comply that failed, or forgetting the command through no fault of the accused.

The distinction between willful disobedience and other failures to obey is critical. A service member who tries to obey but fails, or who misunderstands what is required, or who is unable to comply, has not willfully disobeyed. Article 90 targets deliberate defiance of authority, not mere failure to perform.

Maximum Punishment Under Article 90

Article 90 violations carry extremely severe maximum penalties reflecting the seriousness of physical violence against officers and willful defiance of lawful commands.

Striking or Assaulting Superior Commissioned Officer

In time of war:

• Death or such other punishment as a court-martial may direct

In time of peace:

• Dishonorable discharge
• Forfeiture of all pay and allowances
• Confinement for 10 years

The striking or assault provisions carry among the highest maximum punishments in the UCMJ. Death may be imposed for these offenses during wartime. Even in peacetime, 10 years maximum confinement reflects the gravity of physical violence against superior officers.

Willful Disobedience of Superior Commissioned Officer

In time of war:

• Death or such other punishment as a court-martial may direct

In time of peace:

• Dishonorable discharge
• Forfeiture of all pay and allowances
• Reduction to lowest enlisted grade (for enlisted accused)
• Confinement for 5 years

Willful disobedience carries 5 years maximum confinement in peacetime and potentially death in wartime. These severe maximums reflect the fundamental importance of obedience to lawful commands in military service.

Sentencing Reform

For offenses committed on or after 27 December 2023, maximum punishments are subject to sentencing parameters established by Executive Order 14103 pursuant to the Military Justice Act of 2016. Under this category-based system, actual maximum confinement may be limited by the sentencing category. The specific category depends on the nature and circumstances of the offense. Consult with defense counsel regarding applicable category limits.

Actual sentences depend on severity of the striking, assault, or disobedience, circumstances of the offense, impact on mission or good order and discipline, the accused's service record, whether the conduct was isolated or part of a pattern, and aggravating or mitigating factors.

Beyond court-martial punishment, Article 90 convictions create federal criminal records affecting future employment, security clearances, and professional licensing. Punitive discharges result in loss of most veterans' benefits.

Defenses to Article 90 Charges

Defending Article 90 charges focuses on challenging the elements the government must prove.

Striking or Assault Defenses

Self-defense: If the accused struck or touched the officer in reasonable self-defense or defense of others, this provides complete defense. Defense may establish the officer was the aggressor, the accused reasonably believed force was necessary to defend against imminent harm, and the force used was proportional to the threat.

Accident: If contact with the officer was accidental rather than intentional, the striking element is not satisfied. Defense may establish the contact was inadvertent, the accused did not intend to touch the officer, or circumstances show lack of intent.

Not in execution of office: If the officer was not performing official duties at the time, this element is not satisfied. Defense may establish the incident occurred off-duty in purely personal context, the officer was not engaged in military functions, or the setting was clearly non-military.

Lack of knowledge: If the accused did not know the victim was a superior commissioned officer, the knowledge element fails. This defense is difficult given that rank insignia typically makes status obvious.

Willful Disobedience Defenses

Command not lawful: If the command was unlawful, Article 90 does not apply. Defense may establish the command directed criminal conduct, exceeded the officer's authority, had no valid military purpose, or violated law or regulation. This defense requires careful legal analysis of the command's lawfulness.

Not willful: If the disobedience was not willful, Article 90 is not violated. Defense may establish inability to comply due to physical or mental limitations, genuine misunderstanding of what was required, reasonable mistake about the command, good faith attempt to comply that failed, or circumstances beyond the accused's control preventing compliance.

No knowledge of command: If the accused had no knowledge of the command, willful disobedience cannot occur. Defense may establish the command was never communicated to the accused, the accused was not present when the order was given, or miscommunication occurred.

Impossibility: If compliance was genuinely impossible, this may negate willfulness. Defense may establish the command required performance beyond the accused's physical or mental capabilities, circumstances made compliance impossible despite good faith efforts, or other factors made obedience genuinely impossible.

Ambiguity: If the command was so ambiguous or unclear that the accused could not reasonably understand what was required, this may negate willfulness. Defense may establish the command was vague, contradictory, or subject to multiple reasonable interpretations.

General order versus personal command: If the alleged violation involved failure to comply with a general order or regulation rather than a personal command directed to the accused, Article 92 rather than Article 90 is the appropriate charge. Defense may establish the order was a standing regulation applicable to all personnel rather than a specific command given to the accused.

Defending against willful disobedience and assault charges under Article 90 requires thorough analysis of command lawfulness, evidence of mental state, and circumstances affecting ability to comply.

Relationship to Other Offenses

Article 90 overlaps with several other UCMJ provisions.

Article 89 (Disrespect toward superior commissioned officer): Article 89 addresses disrespectful language or behavior. Article 90 addresses striking, assault, and willful disobedience. An accused might violate both if disobedience is accomplished disrespectfully. However, mere striking or disobedience without additional disrespect does not violate Article 89.

Article 91 (Insubordinate conduct toward warrant officer, NCO, or petty officer): Article 91 protects warrant officers and enlisted leaders from similar conduct. Article 90 protects commissioned officers. The provisions address similar conduct toward different categories of superiors.

Article 92 (Failure to obey order or regulation): Article 92 addresses failures to obey without requiring proof of willfulness. Article 92 applies to violations of general orders and regulations. Article 90 applies to willful disobedience of personal commands from superior commissioned officers. If willfulness cannot be proven, conviction under Article 92 may still be possible. Article 92 is a lesser included offense of Article 90 willful disobedience.

Article 128 (Assault): Article 128 addresses assaults generally. Article 90 addresses assaults on superior commissioned officers specifically with enhanced penalties. The aggravated nature of assaulting a superior officer justifies separate Article 90 treatment.

Multiple charges for the same conduct may raise multiplicity issues requiring analysis of whether charges impermissibly punish the same offense multiple times.

Your Rights During Article 90 Investigations

Service members under investigation for Article 90 violations retain constitutional and statutory protections.

Before any questioning you must receive Article 31 warnings informing you that you are suspected of an offense, the nature of the suspected offense, you have the right to remain silent, and any statements you make may be used against you.

You have the right to consult with defense counsel before and during questioning. This includes right to appointed military defense counsel at no cost, right to retain civilian counsel at your own expense, right to have counsel present during questioning, and right to stop questioning at any time.

You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. Do not attempt to explain why you did not obey an order or why physical contact occurred without counsel present. Such explanations often provide evidence of knowledge and willfulness.

The Importance of Early Legal Consultation

Article 90 cases involve complex issues of command lawfulness, mental state, and ability to comply. The extreme severity of maximum punishments makes early legal consultation critical.

Consulting with experienced military defense counsel at the earliest indication of Article 90 investigation provides critical benefits. Counsel evaluates whether commands were actually lawful and whether defenses based on unlawfulness exist. Early analysis of mental state and circumstances may establish lack of willfulness. Counsel ensures no statements are made that could establish willfulness or knowledge. Counsel preserves evidence of inability to comply, ambiguity in commands, or other factors negating willfulness. For striking or assault allegations, counsel evaluates self-defense or accident defenses immediately.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if you are questioned about physical contact with a superior officer, you are questioned about failing to obey an order, command indicates you are under investigation for striking, assaulting, or disobeying an officer, you refused or failed to obey an order and are concerned about consequences, or witnesses are being interviewed about an incident involving you and a superior officer. Early consultation with qualified counsel protects your rights.

Why Choose Joseph L. Jordan for Article 90 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience defending service members in military court-martial cases. As a former military prosecutor, he understands how the government attempts to prove willfulness and establish lawfulness of commands in Article 90 cases.

Our defense approach includes thorough legal analysis of command lawfulness to determine if orders were within military authority, comprehensive examination of circumstances to establish inability rather than refusal to comply, detailed analysis of mental state evidence to challenge willfulness findings, evaluation of self-defense or accident claims in striking or assault cases, identification and preparation of witnesses supporting the defense, and presentation of mitigating factors including service record and circumstances.

We represent service members worldwide at every stage of Article 90 investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for Article 90 violations, invoke your right to remain silent and do not explain why you did not follow an order or why physical contact occurred without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Preserve all documentation of orders or commands given including written orders, emails, or other records. Document your recollection of events including full context, what you understood the order to require, and any circumstances preventing compliance. Identify potential witnesses who can support your version of events or provide context.

Do not discuss the investigation with other service members who may be interviewed as witnesses. Do not contact the officer involved. Contact defense counsel immediately by calling (888) 643-6254 to speak with Joseph L. Jordan about your case.

Frequently Asked Questions About UCMJ Article 90

What is willful disobedience of a superior officer?

Willful disobedience is intentionally refusing to obey a lawful command from a superior commissioned officer. It requires proof that the accused knew of the command, the command was lawful, the command was directed personally to the accused, and the accused deliberately chose not to comply. Inability to comply, misunderstanding, or accident does not constitute willful disobedience.

Who can be charged under Article 90?

Any service member can be charged under Article 90 if they strike, assault, or willfully disobey a commissioned officer superior to them in rank or command. This includes enlisted members and junior officers when the victim is a senior commissioned officer.

What is the difference between Article 90 and Article 92?

Article 90 requires proof of willful disobedience of a personal lawful command from a superior commissioned officer. Article 92 addresses failure to obey orders or regulations without requiring proof of willfulness and applies to general orders and regulations. Article 90 carries higher maximum punishment. Article 92 is a lesser included offense of Article 90.

What makes a command lawful?

A lawful command directs the accused to do or refrain from doing something within military authority and not contrary to the Constitution, federal law, regulation, or other lawful order. It must have a valid military purpose. Commands to commit crimes, commands exceeding the officer's authority, or commands with no military purpose are unlawful. Orders requiring performance of military duties are presumed lawful.

What is the maximum punishment for Article 90?

For striking or assaulting a superior officer, death may be imposed in wartime. In peacetime, maximum is dishonorable discharge, total forfeitures, and 10 years confinement. For willful disobedience, death may be imposed in wartime. In peacetime, maximum is dishonorable discharge, total forfeitures, reduction to E-1, and 5 years confinement. For offenses after 27 December 2023, sentencing category limits may apply.

Can you disobey an unlawful order?

Yes. Service members not only may but must disobey clearly unlawful orders, particularly orders to commit crimes. However, determining whether an order is unlawful can be complex. Orders requiring performance of military duties are presumed lawful. If an order appears unlawful, the better practice is to respectfully seek clarification or request to speak with higher authority when possible.

What is the difference between inability and refusal to obey?

Inability means the accused genuinely could not comply due to physical limitations, mental incapacity, impossibility of performance, or other circumstances beyond control. Refusal means the accused deliberately chose not to comply despite having ability to do so. Article 90 requires proof of willful refusal, not mere inability.

Must the accused expressly refuse to constitute willful disobedience?

No. Express refusal is not required. Willful disobedience may be shown by stating intent not to comply and then failing to do so, deliberately failing to carry out the command without express refusal, or intentionally doing the opposite of what was commanded. However, the government must prove deliberate choice not to comply.

What if the accused forgot the order?

If the accused genuinely forgot the order through no fault of their own, this may negate willfulness. However, deliberately putting the order out of mind or willfully forgetting constitutes willful disobedience. The distinction turns on whether forgetting was intentional or inadvertent.

What are the main defenses to willful disobedience charges?

Main defenses include the command was not lawful, the command was a general order rather than personal command, the disobedience was not willful (inability to comply, misunderstanding, accident), the accused had no knowledge of the command, compliance was impossible, or the command was too ambiguous to understand what was required.

Can you be convicted if you tried to obey but failed?

No. If you made a good faith attempt to comply but failed, this is not willful disobedience. Article 90 requires proof of intentional refusal, not mere failure to accomplish the task. However, half-hearted or token efforts may not suffice to show good faith attempt.

What is "in the execution of office" for striking or assault?

In the execution of office means the officer was performing official military duties or functions when struck or assaulted. This includes giving orders, conducting inspections, performing administrative tasks, or any other official activity. The officer need not be in uniform but must be engaged in military functions.

Can self-defense justify striking a superior officer?

Yes. Reasonable self-defense is a complete defense to striking or assault charges. The accused must show the officer was the aggressor, the accused reasonably believed force was necessary to defend against imminent harm, and the force used was proportional to the threat.

What should you do if questioned about disobeying an order?

Invoke Article 31(b) rights immediately and request defense counsel before answering any questions. Do not attempt to explain why you did not follow the order without counsel. Explanations attempting to show you misunderstood or were unable to comply often inadvertently provide evidence of knowledge of the order and circumstances.

How does Article 90 affect military careers?

Conviction under Article 90 typically ends military careers. The maximum punishments include punitive discharge. Federal criminal records affect future employment and security clearances. For career service members, conviction means immediate end of service and potential loss of retirement benefits.

For immediate consultation regarding Article 90 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation protecting your rights and career.

Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.