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his office when engaged in any act or service required or authorized to be
done by him, by statute, regulation, the order of a superior, or military
usage (citing authorities). It is not essential that the act should be one
pertaining to his special branch of duty; thus any officer engaged in quelling
a fray or disorder under the provisions of Art 241 would properly be
regarded as 'in the execution of his office'. . . .” (Winthrop, Mil. Law and
Prec., 2d Ed [1920 Reprint], p 571)

The current Manual for Courts-Martial in language derived from previous Army
Manuals, states:

"An officer is in the execution of his office when engaged in any act of
service required or authorized to be done by him by statute, regulation, the
order of a superior, or military usage. In general, any striking or use of
violence against any superior officer by a person subject to military law,
over whom it is the duty of that superior officer to maintain discipline at the
time, would be striking or using violence against him in the execution of his
office." (MCM, 1951, par 169a; emphasis added.)

Military custom requires an officer generally to correct conduct of persons of
lower rank when he sees them acting in a manner discreditable to the service.
Authority for this action appears in Article 7.(c):

"Commissioned officers, warrant officers, petty officers, and noncommis-
sioned officers shall have authority to quell all quarrels, frays, and disor-
ders among persons subject to this chapter and to apprehend persons
subject to this chapter who take part in the same."

Research does not disclose cases reported under the Uniform Code which
discuss the status of an officer off duty but performing acts in discharge of his
responsibilities, but such cases were reported during World War II. For exam-
ple, each of the following officers was held to be in execution of his office by
virtue of the action he had undertaken: a major who ordered a drunken lieuten-
ant from the sickroom of a female hospital patient after the lieutenent had
addressed obscene and insulting language toward her; a lieutenant seeking to
identify enlisted personnel previously involved in a reckless driving incident;
and each of several officers seeking to quell riotous actions of a group of enlisted
personnel, later found to constitute a mutiny.

We believe that the language of Colonel Winthrop, above-quoted, is a proper statement of the law in this regard and dictates the conclusion on the instant facts. We are satisfied that, on the one hand, an officer off duty who is strolling with a girl friend is, absent other factors, not in execution of his office, while the same off-duty officer who discharges his obligation to deal with unruly airmen who come to his attention does, by that act, enter into such execution.

Thus, if a superior officer has a duty to maintain discipline over a soldier, he is in the execution of his office. In Castro the accused was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years and reduction to the lowest enlisted grade.

The maximum punishment which can be imposed upon a soldier convicted of striking or assaulting a superior commissioned officer in the execution of his office is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 10 years and reduction to the lowest enlisted grade. The maximum punishment authorized for willful disobedience of a lawful order of a superior officer is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and reduction to the lowest enlisted grade.

WARRANT AND NONCOMMISSIONED OFFICERS

Article 91 of the Uniform Code of Military Justice makes it an offense to assault or to willfully disobey the order or command of a warrant and noncommissioned officers. Article 91 states that:

Any warrant officer or enlisted member who

(1) strikes or assaults a warrant officer, noncommissioned officer, or petty
officer, while that officer is in the execution of his office;

(2) willfully disobeys the lawful order of a warrant officer, noncommis-
sioned officer, or petty officer; or

(3) treats with contempt or is disrespectful in language or deportment
toward a warrant officer, noncommissioned officer, or petty officer while
that officer is in the execution of his office;

shall be punished as a court-martial may direct.

The offenses made criminal are those committed by a subordinate against a superior. The discussion above of the law concerning the offenses of assault and willful disobedience of officers under Article 90 is applicable to offenses charged under Article 91. The only exception is that under Article 91, disrespectful behavior must take place within the sight or hearing of the warrant or noncommissioned officer who is in the execution of his office.

The maximum punishment authorized for striking or assaulting a warrant officer is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years and reduction to the lowest enlisted grade. The maximum sentence for willfully disobeying a lawful order of a warrant officer is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to the lowest enlisted grade. The maximum imposable sentence for treating a warrant officer with disrespect is a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade.

The maximum punishment authorized for striking or assaulting a noncommissioned officer is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to the lowest enlisted grade. The maximum punishment for willfully disobeying a lawful order of a noncommissioned officer is a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 6 months and reduction to the lowest enlisted grade. The maximum imposable punishment for treating a noncommissioned officer with disrespect is 3 months confinement at hard labor, forfeiture of two-thirds pay per month for 3 months, and reduction to the lowest enlisted grade.

A superior officer can not be punished under Article 91 for assaulting a subordinate or for disobeying a subordinate's lawful order, for example, when the subordinate is an armed forces policeman. However, these offenses can be punished under Articles 92, 93, 128 and 134 of the Uniform Code of Military Justice.

VIOLATION OR FAILURE TO OBEY A LAWFUL GENERAL ORDER OR REGULATION

Article 92(1) of the Uniform Code of Military Justice makes disobedience of a lawful general order or regulation a criminal offense. Article 92(1) states that:

Any person subject to [the UCMJ] who—

(1) violates or fails to obey any lawful general order or regulation;

shall be punished as a court-martial may direct.

General orders or regulations are those orders or regulations applicable to an armed force which are published by the President, the Secretary of Defense, or Secretary of a military service. General orders or regulations also consist of orders and regulations applicable to a command which are issued by an officer having general court-martial jurisdiction, a general or flag officer in command, or a commander superior to one of these.

A general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation, until it expires by its own terms or is rescinded by separate action. General orders and regulations issued by one commander are not af fected when another officer takes command, even if the latter officer is a general or flag officer.

A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, lawful superior orders, or for some reason is beyond the authority of the official issuing it. Article 92(1) contains no requirement that any kind of knowledge be either alleged or provided in a prosecution thereunder for violating or failing to obey a general order or regulation. The maximum sentence which can be imposed by court-martial for the violation of a general order or regulation is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to the lowest enlisted grade.

FAILURE TO OBEY OTHER LAWFUL ORDERS

Article 92(2) makes the failure to obey all other lawful orders issued by members of the armed forces, which can not be charged under Articles 90, 91 or 92(1), an offense punishable by court-martial. Article 92(2) provides that:

Any person subject to [the UCMJ] who—

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order;

shall be punished as a court-martial may direct.

To be found guilty of a violation of Article 92(2), a soldier must have had a duty to obey the order and must have had actual knowledge of the order.

The accused's knowledge of the order may be proved directly by showing that the order was communicated to the accused, or may be proved circumstantially by showing facts from which the court could infer that the accused had knowledge of the order. Circumstantial evidence may include evidence that the order was known generally in the command or that it had been posted at such a time and place that the accused would be likely to have read it.

In United States v. Sanders, 14 C.M.R. 889 (AFBR 1954), and Air Force Board of Review addressed the issue of whether the evidence established that the accused had knowledge of the regulation he was charged with violating. In Sanders the accused was convicted by special court-martial of two violations of a lawful general regulation under Article 92. He was sentenced to a bad conduct discharge, forfeiture of $35.00 per month for 6 months, and confinement at hard labor for 6 months. In addressing the issue of knowledge the court first set forth the following facts:

Briefly stated the evidence reveals that the accused, a member of the 6157th Air Base Squadron of the 58th Fighter Bomber Wing located at K-2 Air Base in Korea, was discovered with other airmen approaching the perimeter fence of K-2 from the outside about 0700 hours on 22 September 1953. Regulation 125-3 of the 58th Fighter Bomber Wing, dated 24 July 1953, declared the area in which the accused was found as "Off Limits" and further provided for a "Curfew" period from 2000 hours until 0800 hours during which all personnel were required to be present on K-2 Air Base unless otherwise specifically authorized (para 4d). This regulation had been permanently posted on the squadron bulletin board from about 24 July 1953. All members of the squadron were required to read the bulletin board twice a day. The regulation had been removed from the board on one occasion but was replaced shortly thereafter. The regulation was also called to the attention of the squadron personnel in the monthly meetings. The accused testified in his own defense that when he reported into the squadron in early July 1953 the regulation in question or the provisions of a similar regulation had not been brought to his attention. He had never read the regulation prior to 22 September 1953 but he knew it was his duty to read the bulletin board and had done so carefully; however, he had never seen the regulation on the board. No one had ever told him that the area wherein he was found was off limits. He had never heard the substance of the regulation discussed in squadron meetings.

Knowledge of a general regulation of less than Department, theater or comparable level, is an essential element of an offense alleged in violation of Article 92(1) of the Code. . . . This element may be established through the presence of either actual or constructive knowledge. . . . In essence, the defense assignment of errors attacks the adequacy of the second portion of the questioned instruction to inform the court members the nature of constructive knowledge.

In resolving both problems an inquiry into the differences between actual and
constructive knowledge will be helpful. On the one hand actual knowledge is
established when it is shown that the accused in fact knows of the regulation,

i.e., proof that the accused personally read the regulation and signed a certificate. to that effect. On the other hand, the Manual for Courts-Martial, 1951, states that constructive knowledge is established:

“. . . when it is shown that the order was so published that the accused would in the ordinary course of events, or by the exercise of ordinary care, have secured knowledge of the order . . . (para 171.b)

The Manual suggests that constructive notice may be found:

". . . when the regulation or directive was of so notorious a nature, or was so conspicuously posted or distributed, that the particular accused ought to have known of its existence. (par 154a(4).)"

Thus we see that actual and constructive knowledge are not of the same ilk. In those cases where the presence of actual knowledge is an essential prerequisite to conviction, proof of constructive knowledge which does not at the same time amount to circumstantial evidence of actual knowledge will not suffice. Correspondingly, where actual knowledge is either an element of the offense charged or properly placed in issue by the evidence of record, an instruction that the court can convict solely upon a finding that the particular accused has constructive knowledge is erroneous. Both by definition and by method of proof, constructive knowledge amounts to something less than actual knowledge. In our opinion when constructive knowledge is a proper criterion, prima facie proof that the directive in question is of a “notorious nature". . ., or that it has been “conspicuously posted or distributed,” and the accused is shown to be a member of that class of persons which “ought to have known of its existence," is sufficient in law to permit conviction, albeit the accused has no actual knowledge of the directive. . . . In that sense, upon proper predicate of proof, constructive knowledge compares favorably with the knowledge of the general directives of a Department, theatre or comparable headquarters, which is conclusively presumed and in which lack of actual knowledge plays no part (see MCM, 1951, par 154(a) (4)). By this last statement we do not mean to say that a prima facie factual predicate establishing constructive knowledge presented by the prosecution cannot be attacked by the defense evidence. Obviously such is not the case. However, it can not be upset by an accused's bald assertion that he has not read the directive and has no actual knowledge of it. To successfully attack prima facie proof of constructive notice, the evidence must of necessity tend to establish that the factual foundation upon which constructive knowledge is based is not true, i.e., that the directive was not posted permanently on the bulletin boards, or that the accused was not a member of the class of persons at the time of the violation who "ought to have known of [the regulation's] existence." An example of the latter situation will serve to illustrate. An airman, newly assigned to a local unit, prior to reporting for duty, is found in an "off-limits" tavern which has been proscribed by local base general regulations. These regulations have been permanently posted upon the local unit bulletin boards which all assigned personnel are required to read daily. In this hypothetical case, it is obvious that this man would not belong to that class of persons who ought to have known of the directive's existence, as he patently has no duty to read the bulletin board until he has actually reported in. Accordingly, he neither knows (actual knowledge), nor is he in a position where he can, with the exercise of ordinary care or in the ordinary course of events, know of the directive, prior to the alleged violation (constructive knowledge).

In Sanders the Court found that the accused ought to have known of the posted regulation's existence and the Court affirmed properly his conviction of violating the lawful regulation posted on the squadron bulletin board.

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