Article 91 of the Uniform Code of Military Justice protects the authority of warrant officers, noncommissioned officers, and petty officers, the leaders who carry out the day to day functioning of the armed forces. Codified at 10 U.S.C. 891, the article punishes a warrant officer or enlisted member who strikes or assaults one of these officers in the execution of office, who willfully disobeys their lawful order, or who treats them with contempt or disrespect while they are executing their office. Article 91 is the counterpart to the articles protecting commissioned officers, adapted to the chain of authority below the commissioned ranks. The questions and answers below explain the statute, its three theories, the required proof, the defenses, and the punishment. This is general information and not legal advice.
Statute and Scope
What does Article 91 prohibit?
It prohibits three types of conduct by a warrant officer or enlisted member toward a warrant officer, noncommissioned officer, or petty officer: striking or assaulting that officer while the officer is in the execution of office; willfully disobeying that officer’s lawful order; and treating that officer with contempt or being disrespectful in language or deportment while the officer is in the execution of office.
Where is the article codified?
It is found in Title 10 of the United States Code at section 891, among the punitive articles of the UCMJ. The statute provides that any warrant officer or enlisted member who commits one of the three listed acts shall be punished as a court-martial may direct.
Who can be charged under Article 91?
Only warrant officers and enlisted members can be charged under Article 91. The statute expressly limits the class of potential offenders to “any warrant officer or enlisted member.” A commissioned officer who disrespects or disobeys is addressed under different articles.
Who is protected by Article 91?
The article protects warrant officers, noncommissioned officers, and petty officers. These are the leaders below the commissioned ranks who supervise, instruct, and direct the force. Article 91 backs their authority with the force of criminal law.
How does Article 91 relate to the articles protecting commissioned officers?
Article 91 is structurally parallel to the articles that protect commissioned superior officers from assault, disobedience, and disrespect. The military justice system protects the chain of authority at each level. Article 91 fills in the protection for the warrant officer and noncommissioned and petty officer corps.
The “Execution of Office” Requirement
What does “in the execution of his office” mean?
It means the officer was engaged in performing duties, exercising authority, or otherwise acting in an official capacity at the time of the conduct. For the striking and disrespect theories, the protected officer must be in the execution of office. This ties the protection to the officer’s official functioning rather than to purely private interactions.
Does the disobedience theory require the officer to be in the execution of office?
The willful disobedience theory is concerned with disobeying a lawful order given by the warrant, noncommissioned, or petty officer. The order must be lawful and within the officer’s authority. The framing of this theory centers on the order itself rather than on the same execution of office language used in the other two theories.
Can disrespect outside of duty be charged?
The disrespect and striking theories require that the officer be in the execution of office. Purely private disputes unconnected to the officer’s official functioning fall outside those theories. The connection to official duty is part of what the government must establish.
What if the officer provoked the confrontation by abusing authority?
Whether the officer was lawfully in the execution of office, and whether an order was lawful, can be contested. Conduct by the officer that amounts to an abuse or abandonment of official authority may be relevant to whether the protected official was truly executing office or issuing a lawful order. The facts govern.
Striking or Assaulting
What must the government prove for the striking or assaulting theory?
The government must prove that the accused struck or assaulted a warrant officer, noncommissioned officer, or petty officer; that the officer was then in the execution of office; and that the accused knew the person was a warrant officer, noncommissioned officer, or petty officer. The knowledge of the victim’s status is an element.
What is the difference between striking and assaulting?
Striking generally refers to an actual physical blow. Assaulting can include an attempt or offer to do bodily harm, consistent with the general meaning of assault in military law, even without a completed blow. Either satisfies the physical conduct element of this theory.
Does the accused have to know the victim’s rank?
The accused must have known that the person was a warrant officer, noncommissioned officer, or petty officer. If the accused genuinely did not know and had no reason to know the person’s status, that bears on the knowledge element. Mistaken belief about status can be a defense to this theory.
Why is striking treated so seriously?
Physical violence against a leader in the execution of office strikes directly at discipline and at the safety and authority of the chain of command. The military treats such violence as a grave breach because it threatens the order on which operations depend.
Willful Disobedience
What must the government prove for willful disobedience?
The government must prove that the warrant, noncommissioned, or petty officer gave the accused a lawful order; that the accused knew the person giving the order held that status; that the accused had a duty to obey the order; and that the accused willfully disobeyed it. The order must be lawful for the disobedience to be punishable.
What makes an order “lawful”?
A lawful order is one that relates to military duty and is within the authority of the person issuing it, and that is not contrary to the Constitution, the laws of the United States, or other lawful superior orders. Orders are presumed lawful, but an order that is clearly unlawful does not have to be obeyed and cannot support a disobedience charge.
What does “willfully” require?
Willfully means an intentional defiance of authority. The disobedience must be a deliberate refusal to comply, not mere forgetfulness, inability, or misunderstanding. The willful element is what distinguishes criminal disobedience from a nonculpable failure to carry out an order.
Is an order to do something dangerous or unpleasant still lawful?
An order does not become unlawful merely because it is difficult, dangerous, or unwelcome. Military duty often involves hardship and risk. The question is whether the order relates to military duty and is within the issuer’s authority, not whether the service member found it agreeable.
Contempt and Disrespect
What must the government prove for the contempt or disrespect theory?
The government must prove that the accused did certain acts or used certain language toward the warrant, noncommissioned, or petty officer; that the conduct was within the sight or hearing of that officer; that the accused knew the person’s status; that the officer was then in the execution of office; and that the conduct was contemptuous or disrespectful under the circumstances.
What kinds of conduct count as disrespect?
Disrespect can take the form of words or of deportment, meaning behavior, gestures, or demeanor. Insolent language, contemptuous gestures, and openly scornful behavior toward the officer in the execution of office can all qualify. The conduct must convey contempt or disrespect under the circumstances.
Does disrespect have to be in the officer’s presence?
The disrespect theory requires that the conduct be within the sight or hearing of the officer. Comments made entirely out of the officer’s presence are not reached by this theory, although other conduct or other articles may apply depending on the facts.
Is heated or emotional speech always disrespect?
Not every sharp or emotional exchange is criminal disrespect. The conduct must rise to contempt or disrespect under the circumstances. Context, including the setting and the nature of the interaction, matters in deciding whether a line was crossed.
Defenses
What are the common defenses to an Article 91 charge?
Common defenses include that the order was unlawful, that the officer was not in the execution of office, that the accused did not know the person’s status, that the conduct was not willful or not contemptuous, that the accused acted in self defense, and that the elements are simply not proven beyond a reasonable doubt. Each defense targets a specific element.
How is the unlawfulness of an order raised?
If the order was unlawful, there can be no conviction for willfully disobeying it. The defense develops why the order fell outside the issuer’s authority or was otherwise unlawful. Because orders are presumed lawful, this defense requires a careful factual and legal showing.
Can self defense apply to a striking charge?
Self defense can be relevant where the accused used force to protect himself from an unlawful attack. The availability and scope of self defense depend on the facts, including who was the aggressor and whether the force used was reasonable under the circumstances.
How does mistake about the victim’s status work?
Because the striking and disrespect theories require knowledge of the victim’s status as a warrant, noncommissioned, or petty officer, a genuine and reasonable mistake about that status can negate the knowledge element. The defense connects the mistaken belief to the missing element.
Punishment
What is the maximum punishment under Article 91?
The statute provides that the offense shall be punished as a court-martial may direct, and the maximum is fixed by the President in the Manual for Courts-Martial. The maximum varies by theory and by the status of the victim. Resources discussing the article describe heavier maximums for striking or assaulting, with the heaviest reserved for striking a warrant officer, and lesser maximums for willful disobedience and for contempt or disrespect. Because these maximums are set by the current Manual and can be revised, the operative Manual provision should be consulted for any actual case.
Why does the punishment vary by the victim’s status?
The Manual generally distinguishes among warrant officers, superior noncommissioned or petty officers, and other noncommissioned or petty officers, reflecting the differing levels of authority. Offenses against those holding greater authority typically carry greater maximum punishment.
What punishments can a court-martial impose?
Depending on the theory and the referral, punishments can include confinement, a punitive discharge such as a bad conduct or dishonorable discharge, forfeiture of pay and allowances, and reduction in grade. The specific ceiling depends on the charged theory and the current Manual.
Can Article 91 be handled at nonjudicial punishment instead of court-martial?
Less serious instances of insubordinate conduct are sometimes addressed through nonjudicial punishment under Article 15 rather than a court-martial, at the discretion of the command. Nonjudicial punishment carries lesser consequences and a different process, and a member generally has the right to refuse it and demand trial by court-martial in most circumstances.
Procedure and Practice
What forum hears an Article 91 charge?
The forum depends on the seriousness of the alleged conduct and the convening authority’s decision. Cases can be referred to a summary, special, or general court-martial, or addressed through nonjudicial punishment, with more serious allegations directed to higher forums.
Does the Article 32 preliminary hearing apply?
A preliminary hearing under Article 32 is generally required before a charge is referred to a general court-martial. It evaluates probable cause, jurisdiction, and the proper disposition, and gives the defense an early opportunity to test the government’s case.
What is the role of unlawful command influence concerns?
Unlawful command influence, prohibited by Article 37, is improper command interference with the court-martial process. Because Article 91 cases arise within the chain of command, defense counsel watch for any command conduct that could improperly affect the proceedings.
How does Article 91 differ from the article protecting commissioned officers from disrespect and disobedience?
The military justice system uses separate punitive articles depending on the rank of the protected leader. Article 91 specifically protects warrant officers, noncommissioned officers, and petty officers, and it limits the class of offenders to warrant officers and enlisted members. A separate article addresses insubordinate conduct toward, and assault or disobedience of, commissioned superior officers. The conduct is similar in character, but the applicable article and its elements depend on whose authority was defied.
Can a single incident give rise to more than one Article 91 charge?
A single episode can sometimes involve more than one of the three theories, for example both a disrespectful outburst and a refusal to obey a lawful order. Whether separate charges or specifications are appropriate, and whether multiple convictions can stand, depends on the facts and on the rules that prevent punishing an accused more than once for what is in substance a single offense. Counsel scrutinizes charging decisions for improper multiplication of charges.
What should a member facing an Article 91 charge do, and what is the key takeaway?
A member should consult counsel promptly and avoid making statements to investigators beforehand, exercising the rights against self incrimination and to counsel. The key takeaway is that Article 91 enforces respect for warrant, noncommissioned, and petty officers in the execution of office, that it has three distinct theories with different elements and punishments, and that the lawfulness of any order, the officer’s execution of office, and the accused’s knowledge and intent are central to both prosecution and defense.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.