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...
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