Who Can Give Lawful Orders? Non-Commissioned Officers' Authority

Understanding what constitutes a lawful order in the military is crucial, as violating such orders can lead to severe judicial and non-judicial punishments, including federal felony convictions and dishonourable discharges. While officers holding commissioned ranks are typically authorized to give orders, the question of whether non-commissioned officers (NCOs) can issue lawful orders is a complex one that has been discussed on online forums. This topic is further nuanced by the fact that the validity of an order depends on its purpose and relation to military duty, as well as its potential conflict with the rights of the person receiving it.

Lawful orders must relate to military duty

Lawful orders are a cornerstone of military discipline and effectiveness. They are crucial to maintaining good order and discipline within the military. As per Article 91, lawful orders must relate to military duty, encompassing all activities necessary to accomplish a military mission or safeguard the morale, discipline, and usefulness of a unit.

In the context of a non-commissioned officer's (NCO) ability to give lawful orders, it is important to note that while officers typically hold the authority to give orders, NCOs can also issue lawful orders. UCMJ Article 91 specifically addresses the disobedience of a warrant officer, non-commissioned officer, or petty officer's lawful order.

When determining the lawfulness of an order, it is essential to consider its military purpose and whether it relates to activities necessary for a military mission. For example, an order to remove signs with a religious message from a shared workspace was deemed lawful as it maintained good order and discipline, despite the appellant's religious freedom claims. Similarly, an NCO's order to cease an unprofessional relationship within a unit was lawful as it was intended to maintain discipline and morale, even though it had not yet caused specific issues.

Additionally, lawful orders must be clear, specific, and narrowly drawn, and they cannot conflict with the statutory or constitutional rights of the individual receiving the order. Orders that serve a private end are unlawful, while those benefiting the command and serving individuals are lawful. For instance, using enlisted personnel for tasks beyond their duties is unlawful, as is imposing "extra training" as punishment.

Orders with a private end are unlawful

An order with a private end for its sole object is unlawful, as per United States v. Robinson, 20 C.M.R. 63 (C.M.A. 1955). This means that an order that benefits the command and serves individuals is lawful, while an order that serves a private end for its sole purpose is not. For example, in United States v. Spencer, 29 M.J. 740 (A.F.C.M.R. 1989), an order to turn over all civilian medical records to the military clinic was deemed unlawful as it interfered with private rights and personal affairs beyond what was required by military needs.

Similarly, in United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958), an order to report financial conditions unrelated to the military while on leave was deemed unlawful as it lacked a valid military purpose. In this case, the order was not related to military duty and was considered arbitrary and capricious, overly broad in scope, and an unjust limitation on personal rights.

It is important to note that the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. However, if an order is given that has a private end as its sole object, disobedience of such an order is not punishable.

To summarise, orders with a private end are unlawful, and disobedience of such orders may not result in punishment. However, distinguishing between lawful and unlawful orders can be challenging, and service members must exercise caution and seek clarification when necessary to ensure they are acting within the boundaries of the law.

Religious or personal beliefs don't justify disobedience

While the military places a high value on the rights of soldiers to observe the tenets of their respective religious faiths, religious or personal beliefs do not justify disobedience. The dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. This means that a soldier's religious or personal beliefs do not provide a defence to a charge of insubordination.

The lawfulness of an order is determined by a military judge. An order must have a valid military purpose and be clear, specific, and narrowly drawn. It must not conflict with the statutory or constitutional rights of the person receiving the order. For example, an order to remove signs with religious content from a shared workspace was found to be lawful as it served a valid military purpose of maintaining good order and discipline.

The Department of Defense will accommodate individual expressions of sincerely held beliefs unless it could have an adverse impact on military readiness, unit cohesion, or good order and discipline. This means that a soldier may be excused from duty only on Sunday mornings to attend a worship service, but a request for accommodation may be denied if it will have an adverse impact on the unit or the mission.

It is important to note that the military does not have a "right" to not deploy a soldier based on their religious objection to the mission, and requiring deployment in such cases does not violate the soldier's First Amendment rights. However, the military generally cannot interfere with a soldier's right to worship as their faith tradition dictates, although certain faith groups are incompatible with military service.

Orders must not conflict with statutory or constitutional rights

Orders that conflict with statutory or constitutional rights are unlawful. For example, in the United States v. Sterling case, it was established that an order must not conflict with the statutory or constitutional rights of the person receiving it to be considered lawful.

In the context of the military, this means that orders must not violate the service member's statutory or constitutional rights. This includes rights protected by the U.S. Constitution, such as freedom of speech, religion, and the right to due process. For instance, in the case of Brown v. Glines, it was determined that regulations requiring service members to obtain approval from their commanders before circulating petitions on military installations are lawful. The Air Force had a substantial governmental interest unrelated to the suppression of free expression, and while service members can write to members of Congress without using official channels, this does not extend to the general circulation of a petition within a military base.

Additionally, orders that have a private end as their sole object are unlawful. An example of this is seen in the United States v. Robinson case, where the use of enlisted personnel in Officers' Open Mess at Fort McNair was deemed unlawful. Similarly, in the United States v. McCoy case, continuing extra duty after punishment imposed under Article 15 had already been completed was considered unlawful.

It is important to note that the lawfulness of an order is a question of law to be determined by a military judge. Service members accused of violating lawful orders should seek experienced legal counsel, as the consequences can be severe and life-altering. Obeying lawful orders is a cornerstone of military discipline and effectiveness, and violating Articles 90 and 92 of the UCMJ can lead to harsh punishments and long-term consequences.

Consequences of disobeying a lawful order

A non-commissioned officer can give a lawful order as long as it has a valid military purpose. This includes all activities reasonably necessary to accomplish a military mission or safeguard or promote the morale, discipline, and usefulness of members of a command.

In the military, disobeying a lawful order can lead to severe penalties under the Uniform Code of Military Justice (UCMJ). These consequences can be life-altering and include imprisonment, reduction in rank, forfeiture of pay, dishonorable discharge, and even death in extreme cases. Disobeying a lawful order can severely impact one's career advancement and reputation, especially in professions that value integrity and discipline, such as law enforcement and the military. It can result in being deemed unfit for leadership roles or sensitive missions, stalling career progression.

In the civilian world, a record of such disobedience might hinder employment opportunities, especially in roles requiring security clearance or positions of trust. The specific penalties depend on the order's nature, the circumstances surrounding the disobedience, and the service member's history.

Additionally, there are social and personal consequences to consider. For example, failing to follow a police officer's directive during a traffic stop could lead to charges such as obstruction of justice or resisting arrest, resulting in fines, probation, or incarceration.

It is important to note that the dictates of one's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. An order is presumed to be lawful, and the accused bears the burden of proving otherwise. To be lawful, an order must have a valid military purpose, be clear and specific, and not conflict with the statutory or constitutional rights of the person receiving it.

In summary, the consequences of disobeying a lawful order can be far-reaching and impact one's career, reputation, and personal life. It is crucial for service members to understand the potential repercussions and seek legal counsel if accused of such offenses.

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