ARTICLE 89 – DISRESPECT OFFENSES
Article 89 through 91 create a protected status for superior commissioned officers, noncommissioned officers, and warrant officers in the execution of their duties.
- That the accused did or omitted certain acts or used certain language to or concerning a certain commissioned officer;
- That such behavior or language was directed toward that officer;
- That the officer toward whom the acts, omissions, or words were directed was the superior commissioned officer of the accused;
- That the accused then knew that the commissioned officer toward whom the acts, omissions, or words were directed was the accused’s superior commissioned officer;
- That the under the circumstances, the behavior or language was disrespectful to that commissioned officer .
Superior Commissioned Officer
One of the first issues to arise in any Article 89 case is whether the allegedly disrespectful acts, omissions or words were directed towards a superior commissioned officer. The statute divides the analysis into two groups – circumstances where the accused is in the same armed force as the superior commissioned officer and circumstances where the accused is in a different armed force than the superior commissioned officer. Generally, this includes commissioned warrant officers.
Under Article 89, when the accused is in the same armed force as the victim disrespected, the superior under the following conditions:
- If the victim is a commissioned officer superior in rank to the accused.
- If the victim is superior in command to the accused, even if the victim is subordinate in rank to the accused.
- If the victims are superior in grade, but inferior in command.
When the victim is a member of a different branch of service, the victim is superior when:
- The victim is a commissioned officer and superior in the chain of command over the accused.
- The victim, not a medical officer or chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse through the normal chain of command is prevented.
A victim is not a superior commissioned officer simply because he or she is superior in grade to the accused .
The statute provides that misconduct on the part of the superior in dealing with a subordinate divests the superior of his or her authority and no longer affords the superior of protected status. The divestiture must be a substantial departure from the required standards of conduct. The divestiture is limited to offenses where the protected status of the victim is an element – but may not extend to lesser included offenses . A jury can also find a partial divestiture. In other words, the victim may not have been in the execution of his office, but he had not divested himself of his rank status . The divestiture is a special defense under the statute and is a question of fact for the panel.
The case law provides a number of examples of divestiture:
- Striking the accused 
- Challenging the accused to a fight 
- Using racial slurs towards a subordinate 
- Serving as a bartender at an enlisted party 
- Exceeding the scope of a search authorization to embarrass the accused by reading a private letter 
Examples of conduct not amounting to divestiture include:
- General use of profanity
- General allegations of horseplay 
- Personal relationship with subordinate 
There are a number of ways to attack an Article 89 charge.
The specific disrespectful behavior should be alleged. The alleged victim’s status as a superior commissioned officer should also be alleged. The following are suggested areas that counsel should investigate:
- The precise relationship between the accused and the victim. The victim may not fall within the narrow definitions of a superior commissioned officer. There may be a need to review the victim’s commissioning documents.
- Whether the acts, omissions, or words were actually directed towards the victim.
- Whether the accused knew that the victim was a superior commissioned officer. This element is helpful in cases where the victim is not in uniform or the accused is under the influence of alcohol or other substances at the time of the disrespect.
- Whether the victim divested his or her authority.
- Whether the language was, in fact, disrespectful.
The maximum punishment under Article 89 is bad-conduct discharge, total forfeitures, and confinement for 1 year.
The lesser included offenses are Article 117 provoking speeches and gestures and Article 80 attempts.
-  MCM, Pt. IV, ¶ 13a.
-  United States v. Peoples, 6 MJ 904 (ACMR 1979).
-  United States v. Richardson, 7 MJ 320 (CMA 1979).
-  United States v. Sanders, 41 MJ 485 (CAAF 1995).
-  United States v. Diggs, 52 MJ 251 (CAAF 2000).
-  United States v. Struckman, 43 CMR 333 (CMA 1971).
-  United States v. Richardson, 7 MJ 320 (CMA 1979).
-  United States v. Noriega, 21 CMR 322 (CMA 1956).
-  United States v. Hendrix, 45 CMR 186 (CMA 1972).
-  United States v. Collier, 27 MJ 806 (CMA 1990).
-  United States v. Leach, 22 MJ 738 (NMCMR 1986).
-  United States v. Middleton, 36 MJ 835 (ACMR 1977).
-  Military Judges Benchbook, ¶ 3-13-1 – Disrespect Toward a Superior Commissioned Officer.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
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Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
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A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
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Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More
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