Introduction
The Uniform Code of Military Justice (UCMJ) is the corner stone of military law in the armed forces of the United States. This code applies to all uniformed services of the United States which include the Marines, Air Force, Navy and the Army. Other branches that are governed by these codes include the Coast Guard and PHS corps. Soldiers in the National Guard will only be subject to the Uniform Code of Military Justice if they are activated through an executive order given by the President.
The UCMJ early roots can be traced to the “69 Articles of War that were established by the Second Continental Congress on 30th June 1775 to govern the conduct of the Continental Army’ (Department of the Army, 2007, p 101). These were later increased to 101 Articles through an act of Congress in 1806. With this enacting, Congress now had the power to control the Army and Navy. The UCMJ was finally “signed into law by President Harry S Truman and it became effective on 31st May 1959” (Department of the Army, 2007, p 101).
The guiding principle for the Code is to bring consistency in the execution of military justice in all the branches of the armed forces. It gives strict guidelines on the kind of conduct and behaviour that would not be tolerated in the uniformed services. These vary from failure to obey orders given by a superior officer to acts of murder committed by soldiers. It also outlines the procedures to be followed when carrying out a court martial on suspects who have broken this code. As explained before, the UCMJ is the foundation of military justice and without it the chain of command might break down leading to an army with no discipline.
Article 91
Article 91 addresses “insubordinate conduct towards a warrant officer, non-commissioned officer or a petty officer” (Stjepan, 2008, p 88) The conduct of the accused who is an enlisted member or a warrant officer is called into question if he violates three major elements of this article. The first one is if the accused “strikes or assaults a warrant officer, non-commissioned officer, or petty officer, while that officer is in the execution of his office.”(Mickey et al, 2001, p 445)
It should be noted that both parties must be enlisted members of the respective uniform service and the accused was fully aware that he was striking an enlisted member or warrant officer who was carrying out his duties. Such an offense has serious repercussions in not only military justice but also in civilian courts. The key to prosecuting such cases successfully lies in proving that the accused had actual knowledge that he was striking an enlisted personnel and all of this can be proved with circumstantial evidence.
The maximum penalties for “are dishonourable discharge, forfeiture of all pay and allowances, and confinement for 5 years” (Mickey et al, 2001, p 445) A similar act towards a superior non-commissioned or petty officer carries similar penalties but confinement is reduced to 3 years. The same also applies to other non-commissioned or petty officer but confinement is only limited to one year with the other penalties still binding.
The second element is violated when the accused “wilfully disobeys the lawful order of a warrant officer, non-commissioned officer, or petty officer’. (Mickey et al, 2001, p 446) The same guidelines are followed as in the first element whereby both parties are enlisted members and the accused had actual knowledge that he was receiving an order from a warrant, non-commissioned or petty officer; he was obligated to follow that order but he chose to disobey it.
The penalties being handed out depend a lot on the level of contempt of the accused with maximum penalty of “dishonourable discharge, forfeiture of all pay and allowances and confinement for 2 years” (Mickey et al, 2001, p 445) if you knowingly disobeyed an order from a warrant officer. For the case of a non-commissioned or petty officer, the punishment is a “bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year”. (Mickey et al, 2001, p 445)
The third element is violated when the accused treats with disdain or is impolite in his speech or behaviour towards a “warrant officer, non-commissioned officer, or petty officer while that officer is in the execution of his office”. (Stjepan, 2008, p 89) Such an action towards superior non-commissioned or petty officer results in “bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months” (Stjepan, 2008, p 89) the penalty reduces “forfeiture of two-thirds pay per month for 3 months, and confinement for 3 months if it is other non-commissioned or petty officer.” (Stjepan, 2008, p 89)
Article 92
This is violated when the accused fails to obey a lawful order that was issued by a member of the armed forces or is derelict in the performance of his duties. This legislation is divided into three elements. The first element is violated when the accused had a duty to obey an issued order but instead disobeyed it. The punishment is “dishonourable discharge, forfeiture of all pay and allowances, and confinement for two years.” (Mickey et al, 2001, p 447) The second element is violated when the accused had actual knowledge that the order was issued by a member of the armed forces and he had a duty to obey this order but instead disobeyed it. The maximum punishment is “bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.” (Mickey et al, 2001, p 447)
The third element is violated when the accused is fully aware of the duties that have been assigned to him but his performance is found wanting either “willingly or through neglect or culpable inefficiency while executing these duties.” (Mickey et al, 2001, p 447) If the shoddy performance can be blamed on neglect or just plain inefficiency, then the accused will be handed a “3 month confinement with forfeiture of two-thirds pay per month for 3 months” (Mickey et al, 2001, p 447) However, if the accused was willingly derelict in the performance of his duties, then a “bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months will result.” (Mickey et al, 2001, p 447)
Article 98
Article 98 looks at non-compliance of procedural rules on the part of the accused. It has two elements. The first one is if the accused is deemed responsible for any delays that might arise during the execution of a case of a person who committed an offense under the military code of justice.
The penalty is “bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months”. (Sliedregt, 2003, p 231) The second element is broken when the accused knowingly and deliberately fails to “enforce or comply with provisions of the code before, during or after a trial”. (Sliedregt, 2003, p 231) His failure to enforce the provisions was intentional even though it was his duty to do so. The punishment in this case is much stiffer with dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years being handed out.
Summary
The above mentioned articles are a part of other codes that are known as Punitive Articles. It is mandatory that these articles are enforced to the letter because they have a direct relation with the level of discipline in the service. While military hardware and tactics can swing the tide of victory in a battle, it’s commitment, morale and discipline of each of the members that will win you the War. (Stjepan, 2008, p 93)
References
Department of the Army, 2007, The Soldier’s Guide, Skyhorse Publishing Inc, pp 101-112.
Mickey R. Dansby, James B. Stewart, Schuyler C, 2001, Managing Diversity in the Military, Technology and Engineering, pp 445-449.
Sliedregt E. Van, 2003, The criminal responsibility of individuals for violations of international humanitarian law, Cambridge University Press, pp 223-231.
Stjepan Gabriel Me’strovic, 2008, Rules of Engagement? Algora Publishing, pp 88-93.