Divestiture Defense for Criminal Disrespect

Divestiture Defense for Criminal Disrespect Charge Dear Sgt. Payne Your father contacted me in regards to your pending criminal case for disrespecting a superior officer under UCMJ Article 91. Having conducted some preliminary research into the legal issues at hand, I am pleased to provide you with the below information regarding possibilities for an acquittal in this matter. Facts After yelling and cursing at your First Sergeant, you were charged with a violation of Article 91 of the UCMJ for disrespecting a superior officer.

There is a question as to whether or not a divestiture defense is appropriate in this case. Without more details of the incident and the period leading up to it being known, it is impossible to determine whether a divestiture defense can be applied in this situation.

If your superior officer has been habitually conducting himself in a way that perceptibly demeans the level of stature and respect that he is expected to command in his role as a First Sergeant, or if he was conducting himself in such a manner at the time of the incident for which charges have been brought against you, he has also divested himself of a worthiness to demand the respect -- and the legal assurance of that respect -- granted to him under Article 91 of the UCMJ.

Furthermore, if unwarranted and demeaning provocation took place instigating the act of disrespect for which you are charged, a divestiture defense would be equally applicable. Explanation The 1984 Manual for Court Martial as well as several precedent setting cases both before and after the publication of this edition of the manual clearly defines the scope of expectations in regards to the behavior of a superior officer in maintaining the legal right to the respect and proper treatment of that officer by other members of the armed forces.

Essentially, if the superior officer identified as the victim in your case in any way engaged in conduct that substantially departed form the expectation of performance and behavior attached to his rank and office, a divestiture of his legal right to respect is implied and present, rendering the charges against you moot.

If, however, the First Sergeant were acting in the clear performance of his duties either through explicit communication or through the implications of the circumstances surrounding the event for which charges were brought, divestiture would not be present nor an applicable defense, as in United States v. Diggs.

The lack of details I have received regarding this case make it difficult to determine which set of precedents most applies to your situation, and therefore whether or not a divestiture defense exists for the charges against you and what the best way to proceed in this matter on your behalf would be. In further communications with this office, the surrounding details of your case will be made apparent and we will proceed from there, with the combined knowledge of circumstances and relevant precedents.

I hope that this information will provide you with some reassurance regarding your case, and I assure you that our office will do everything in its power to defend you in this matter, should you agree to accept our services. Sincerely, Senior Partner, Plentibux & Moore To: Senior Partner From: Jack Starr, Paralegal Date: March 2, 2010 Re: Sgt.

Ima Payne Divestiture Defense for Disrespect Charge Statement of Assignment I have been assigned the task of preparing a memo regarding the current standing and applications of the divestment defense to charges of disrespect brought against military personnel under Article 91 of the UCMJ. Sergeant Payne has been criminally charged under this code for yelling and cursing at his First Sergeant, and the applicability of the divestiture defense in connection to this case is sought.

Issues Article 91 of the UCMJ expressly provides that any member of the armed services that, "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." There are two primary issues at stake here: first, there is the question of divestiture, wherein the provisions of Article 91 are rendered moot by unbecoming conduct on the part of the superior officer shown disrespect by the individual charged, and second is the issue of where and when the execution of office can be established.

In light of the discussion of case law and current statues in the Manual for Courts Martial provided by Milhizer in the journal Army Law, there are definite and clear limitations to the existence of superior officers' divestiture of their legal rights to the respect owed to them based on their rank and office.

There must have been either a history of conduct on the part of the officer in question (the individual identified as the victim in the case) substantially departing from the decorum and behaviors expected of the superior officer's rank and duty, or a substantial departure from the decorum and behaviors expected of the officer at the time of the incident.

Furthermore, according both to the case studies and overviews provided by Milhizer and the case of United States v Diggs, it is clear that there is no divestiture of the legal protection of respect and conduct towards a superior officer, nor for the disobedience of an order given by an officer even when respect has been legally divested.