Legal letter of determination

Plentibux & Moore, LLC
2100 Main Street
Friendly, New Washington 00065
[phone]•FAX [phone]•www.ablacklaw.com

November 06, 2013

Mr. Fred Payne

Re: Determination on viability of a divestiture defense for disrespect charge and underlying elements of a disrespect offense.

Dear Mr. Payne:

Thank you for your call yesterday. Per our conversation, we reviewed the issue of “disrespect” as outlined by the U.S Army’s Uniform Code of Military Justice. We researched the elements of the charge, as you described, as well as the elements of a viable defense. This letter offers a limited opinion on the general circumstances of the insubordination charge. We will be better able to provide you with details, specific to Sgt. Payne’s case, once we have more facts surrounding the incident.

The facts we know are: Sergeant Payne is charged with the criminal offense of being disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office (Art. 91 UCMJ). Sgt. Payne yelled and cursed at his First Sergeant. The offense of insubordination shall be punished by court-martial decision.

Divestiture is a defense that serves well in response to charges of disrespect because it calls into question the other party’s actions and behaviors at the time. Divestiture requires that the victim officer behave so inappropriately in word or behavior, that he or she effectively relinquishes his / her rank and office. In such a case, the charges against the accused would not apply, as there would no longer be a qualifying warrant, noncommissioned, nor petty officer present. By engaging in misconduct the officer is simultaneously relieved of his duties and all the authority of his office.

In the case of United States v. Collier, 27 M.J. 806 (1988), the court denied the divestiture defense on the grounds that the accused had not been provoked in any way by the heated verbal exchange with his warrant officer. The accused claimed the officer was yelling offensive comments. The officer claims he was yelling a direct order to the accused to stand at ease, which was ignored and disobeyed. Collier was one of the first cases to record divestiture as a defense strategy and it was arguably applied more broadly than necessary. Divestiture seldom applies to charges of disobedience, but is a viable defense in response to disrespect. In the Collier case, the court focused on alleged disobedience rather than the behavior of the warrant officer. Even so, the court considered the defense and denied it, seemingly, only because the offensive language was not confirmed.

In the case of United States v. Diggs, 52 M.J. 251 (2000), the accused, was found in the sleeping quarters of the officer’s home, with the officer’s wife. The officer struck the accused repeatedly, and then composed himself and attempted to take the accused to the Military Police for arrest. The accused escaped and was charged and convicted on the insubordination violation of escaping arrest. The court in this case rejected the divestiture defense because the officer composed himself and tried to then follow military protocol. Notably, the court agreed that the officer divested himself by striking the soldier, repeatedly, in anger. The court held that the officer’s misconduct gave him temporary leave of his office, but that he was then able to later regain office and authority simply by ceasing the behavior.

Knowing an officer can temporarily divest themselves may prove useful to us, depending on the information Sgt. Payne provides about his First Sergeant’s behavior during the encounter.

In United States v. Struckman, 20 U.S.C.M.A. 493 (1971), the accused was taunted and verbally humiliated by an officer, who then challenged the accused to a fight. In response, the accused Private struck the officer in the face. He was charged with the insubordination of striking an officer. In court-martial, the judge convicted the Private, but having read the transcript, found the Private was subjected to “extremely aggravating circumstances” and recommended that the sentence be set aside, due to the officer’s behavior. The Military Court of Appeals agreed and set aside the insubordination conviction.

It is worth noting that the divestiture defense is not a defense that excuses the behavior of the accused party, instead this defense offers a possible explanation for the accused’s behavior. It calls into consideration the behavior of the victim officer, something virtually unheard of before U.S. v. Collier introduced this defense.

It will be critical to examine the interaction between Sgt. Payne and his First Sergeant. The element of the offense most relevant to this case is whether the First Sergeant was in full execution of his office for the duration of the exchange and if so, what provoked Sgt. Payne’s action. If the First Sergeant was not appropriate at all times, there may be behavior we can identify that portrays the officer divesting himself. The most important challenge is to determine if, at any time, Sgt. Payne was simply yelling and cursing at what was effectively a fellow soldier of equal or lesser rank.

The favorable ruling of the Struckman case gives strong precedent for divestiture when an officer uses aggressive language. I hope you find this information useful. I look forward to hearing more details of the case and to crafting a solid defense on your son’s behalf.

Sincerely,



Maude Elaine,
Paralegal