What is Insubordination?

A commander who issues an unlawful order is essentially ordering his subordinate to commit a crime, and the subordinate who obeys the unlawful order is just as guilty of the crime as the commander. 

The chain of command is the primary way the military maintains order and performs its duties in the most efficient way possible. If a service member behaves in a way that disrupts the chain of command, she could be reprimanded for insubordination. The precise definitions of different types of insubordination are contained in Articles 89-92 of the Uniform Code of Military Justice (UCMJ). In general, a service member is guilty of insubordination against a superior officer (commissioned, warrant, or non-commissioned) if he assaults, disobeys, or disrespectfully treats that officer, regardless of whether that officer is in the same branch of the military or even within that service member's direct chain of command.

Assaulting a Superior Officer

Article 90 prohibits a service member from "offering violence" to a superior officer. Article 91 extends this conduct to noncommissioned officers, warrant officers, and petty officers. "Offering violence" is similar to the civilian crimes of assault and battery, and includes any threatening words or gestures, such as drawing or brandishing a weapon or holding one's hands in a physically threatening manner. Striking a superior officer is also prohibited, where "striking" includes any intentional, offensive touching, regardless of whether actual injury was inflicted upon the officer.

However, in order to be found guilty of assaulting a superior officer under Article 90, the service member must have known that the person she assaulted was a superior officer. If the service member doesn’t have this knowledge, she may still be guilty of assault as defined in Article 128, but won’t  be considered insubordinate. Additionally, the superior officer must be acting in the execution of her duty at the time of the assault in order for the action to be insubordinate. A commander of a unit in the field or on a ship at sea is considered to be acting "in the execution of their duty" at all times, but a commander of a unit in the U.S. during peacetime may not.

Disobeying a Lawful Order

A service member may not disobey a lawful order given by a superior officer. This includes specific orders given to a service member by his direct superior officer (under Article 90 of the UCMJ) as well as general orders or regulations that govern the service member's unit (Article 92 of the UCMJ).

An instruction from a superior officer is considered an "order" which must be obeyed when:

  • It contains a command to take or refrain from taking a specific action (general recommendations to "perform your duty" are not orders);
  • It is directed at an individual;
  • It pertains to that person's military duty;
  • The person has knowledge of the order; and
  • The order is lawful.

Of all of these requirements, "lawfulness" is the most difficult, and the most important, to figure out. An order is "lawful" when it does not conflict with the U.S. Constitution or its laws, other military or admiralty laws, or international treaties binding on the U.S. Also, a lawful order is one which doesn't interfere with an individual's constitutional rights. All orders are presumed to be lawful (except patently unlawful orders, such as deliberately killing innocent civilians), and any service member that refuses to obey an order may be properly court-martialed.

However, if an order is unlawful, the service member who receives the order has a duty first to seek clarification of the order and, if still unlawful, to disobey it. That’s the reason why the defense that soldiers "were just following orders" when they committed war crimes almost always fails.

However, this can be an ambiguous area for service members because whether an order is lawful is ultimately a question of law to be decided by a judge well after the fact. Also, a service member doesn’t disobey an order by merely indicating an intention to do so. Instead, an order is disobeyed when the subordinate fails to perform the action described in the order.

Treats a Superior Officer with Disrespect

Service members aren’t allowed to treat their superiors with disrespect. This can include anything from failing to properly salute the superior officer to describing the superior officer with obscene language to openly mocking the superior officer. Truth is not a defense -- in other words, a subordinate can be punished even if the insults described in the disrespectful behavior are true. Service members should respect their superiors whether they are superior in command or in rank. However, if a service member falls above an officer of higher rank in the chain of command, she may not be punished for treating a superior officer with disrespect.

The insubordinate service member doesn’t need to be in the presence of her superior officer in order to disrespect the superior officer. However, the service member cannot be punished for the contents of a purely private conversation.

Defenses to Insubordination

Insubordination is a serious crime that can result in a dishonorable discharge, forfeiture of pay, and confinement, among other punishments. There are a few defenses a service member may assert in the face of an insubordination charge, such as:

  • The accused did not know the other person was a superior officer;
  • The accused was acting to discharge another lawful duty; or
  • The superior officer acted in such a way that made the superior officer lose the right to be respected. For example, if a superior officer attacked a subordinate, the subordinate would be within her rights to strike the officer in defense.

Getting Legal Help with an Insubordination Case

If you’re facing adverse actions against you based on allegations of insubordination, in addition to any military lawyer assigned to you, you should also consider speaking with a civilian attorney that specializes in military law. An experienced civilian attorney can provide you with personalized attention detached from any chain of command.

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