U.S. v. Kisala, 64 M.J. 50

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

1. fundamental to an effective armed force is the obligation of obedience to lawful orders; reflecting the authority of this principle, an order is presumed to be lawful, and a subordinate disobeys an order at his own peril; however, a servicemember may challenge the lawfulness of an order at the time it is given or in later disciplinary proceedings
2. the essential attributes of a lawful order that sustain the presumption of lawfulness include: (1) issuance by competent authority – a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty; in light of the presumption of lawfulness, long-standing principles of military justice place the burden of rebutting this presumption on the accused
3. there is a presumption that orders are lawful; under this presumption, the servicemember challenging the order bears the burden of demonstrating the illegality
4. appellant, charged with disobeying an order to receive an anthrax vaccination, failed to rebut the presumption that the order to receive the vaccination was lawful; the National Institute of Health licensed the vaccine for use against anthrax, and the Food and Drug Administration has not actively decided to suspend or revoke the license; the vaccine’s license has never been suspended or revoked; and appellant has not shown that the license was erroneously granted
5. because appellant failed to establish that the anthrax vaccine is an investigational new drug or a drug unapproved for its applied use, the notice requirements of 10 U.S.C. § 1107 that require the Secretary of Defense to give servicemembers notice that such a new or unapproved drug will be administered were not implicated by the order to receive the vaccine; additionally, Exec. Order 13,139, directing that DoD obtain informed consent from each individual to whom an investigational new drug is to be administered unless the Secretary of Defense can justify a need for a waiver of informed consent from the President, was not implicated by the order to receive the vaccine
6. the anthrax vaccine is not an investigational drug that would implicate 10 U.S.C. § 1107 or Exec. Order 13,139

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. there is a presumption that orders are lawful; under this presumption, the servicemember challenging the order bears the burden of demonstrating the illegality
2. where an appellate court is faced with an order based upon a rule promulgated by an agency outside the normal purview of our Court, it treats the agency’s administrative determinations with considerable deference; given this degree of deference to the determinations of the agency, the burden on the servicemember challenging the rule is particularly high