U.S. v. Hargrove, 51 M.J. 408

Military Justice Personnel: Military Judge: Instructions

1. with respect to charges of willfully disobeying the lawful command of a superior commissioned officer, military judge should have instructed members on the lesser- included offense of failing to go to his appointed place of duty where: (1) the officer issuing the order left details to subordinates, thus raising question of whether the officer put the full weight of his office behind a requirement to sign in periodically; and, (2) during testimony, the first sergeant and battalion commander referred to the misconduct as “breaking restriction”, a reflection of the command’s perception of appellant’s actions

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. (minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors; see paragraph 16e(2)(Note), Part IV, Manual for Courts-Martial, United States (1998 ed.)

Trial Stages: Pretrial: Charges and Specifications

1. (minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors; see paragraph 16e(2)(Note), Part IV, Manual for Courts-Martial, United States (1998 ed.)

Trial Stages: Merits: Instructions › Lesser-included offenses

1. with respect to charges of willfully disobeying the lawful command of a superior commissioned officer, military judge should have instructed members on the lesser- included offense of failing to go to his appointed place of duty where: (1) the officer issuing the order left details to subordinates, thus raising question of whether the officer put the full weight of his office behind a requirement to sign in periodically; and, (2) during testimony, the first sergeant and battalion commander referred to the misconduct as “breaking restriction”, a reflection of the command’s perception of appellant’s actions

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where military judge erred in not giving instructions on applicable lesser-included offense, and where error was cured by dismissing the affected specifications, CAAF was highly confident that this error played no appreciable role in the adjudication of appellant’s punishment in light of the remaining, more serious, offenses of which appellant was convicted