Part IV · Punitive Articles

Article 90. Willfully disobeying superior commissioned officer · MCM ¶ 16

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. Any person subject to this chapter who willfully disobeys a lawful command of that person’s superior commissioned officer shall be punished—
(1) if the offense is committed in time of war, by death or such other punishment as a court-martial may direct; and
(2) if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
(b) Elements.
(1) That the accused received a lawful command from a superior commissioned officer;
(2) That this officer was the superior commissioned officer of the accused;
(3) That the accused then knew that this officer was the accused’s superior commissioned officer; and
(4) That the accused willfully disobeyed the lawful command.
Practice Note
[Note: if the offense was committed in time of war, add the following element]
(5) That the offense was committed in time of war.
(c) Explanation.
(1) Superior commissioned officer. The definition in subparagraph 15.c.(1) applies here.
(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.
(ii) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.
(iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, custom of the Service, or applicable order to direct, coordinate, or control the duties, activities, health, welfare, morale, or discipline of the accused.
(iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.
(v) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order.
(b) Personal nature of the order. The order must be directed specifically to the subordinate. Violations of regulations, standing orders or directives, or failure to perform previously established duties are not punishable under this article, but may violate Article 92.
(c) Form and transmission of the order. As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused.
(d) Specificity of the order. The order must be a specific mandate to do or not to do a specific act. An exhortation to “obey the law” or to perform one’s military duty does not constitute an order under this article.
(e) Knowledge. The accused must have actual knowledge of the order and of the fact that the person issuing the order was the accused’s superior commissioned officer. Actual knowledge may be proved by circumstantial evidence.
(f) Nature of the disobedience. “Willful disobedience” is an intentional defiance of authority. Failure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this article but may violate Article 92.
(g) Time for compliance. When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused’s present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.
(3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military law ( see Article 2) and under the command of a commissioned officer is subject to the provisions of this article.
(d) Maximum punishment.
(1) Willfully disobeying a lawful order of superior commissioned officer in time of war. Death or such other punishment as a court-martial may direct.
(2) At any other time. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(e) Sample specification. In that __________ (personal jurisdiction data), having received a lawful command from __________, (his) (her) superior commissioned officer, then known by the said __________ to be (his) (her) superior commissioned officer, to __________, or words to that effect, did, (at/on board—location), on or about _____ 20 __, willfully disobey the same.
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
3a-16-1WILLFULLY DISOBEYING A SUPERIOR COMMISSIONED OFFICER
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

(1) In time of war: Death. (Criteria)

(2) Any other time: DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), having received a lawful command from __________, (his) (her) superior commissioned officer, then known by the said __________ to be (his) (her) superior commissioned officer, to __________, or words to that effect, did, (at/on board—location), on or about __________, willfully disobey the same.

Elements

(1) That the accused received a certain lawful command to (state the terms of the command allegedly given) from (state the name and rank of the alleged superior commissioned officer);

(2) That (state the name and rank of the alleged superior commissioned officer who allegedly gave the command) was the superior commissioned officer of the accused;

(3) That the accused then knew that (state the name and rank of the alleged superior commissioned officer) was (his) (her) superior commissioned officer; (and)

(4) That (state the time and place alleged), the accused willfully disobeyed the lawful command; [and]

NOTE 2. Aggravating factor alleged. In the event the aggravating factor is alleged, the military judge must advise the court members of the aggravating factor as an element.

((5)) That the offense was committed in time of war.

Definitions & other instructions

“Willful disobedience” means an intentional defiance of authority.

“Superior commissioned officer” means a commissioned officer superior in rank or command.

NOTE 3. Lawfulness of command. The lawfulness of the command is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See US v. New, 55 MJ 95 (CAAF 2001); US v. Deisher, 61 MJ 313 (CAAF 2005). If the MJ determines that, based on the facts, the command was not lawful, the MJ should dismiss the affected specification, and the members should be so advised. To be lawful, the command must relate to specific military duty and be one that the superior commissioned officer was authorized to give the accused. The command must require the accused to do or stop doing a particular thing either at once or at a future time. A command is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service. A command is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it is expected the accused may commit. (The four preceding sentences may be modified and used by the MJ during a providence inquiry to define “lawfulness” for the accused.) When the MJ determines that, based on the facts, the command was lawful, the MJ should advise the members as follows:

As a matter of law, the command in this case, as described in the specification, if in fact there was such a command, was a lawful command.

NOTE 4. Form or method of communication in issue. If the evidence raises an issue as to the form or method of communicating the command, give the following:

As long as the command was understandable, (the form of the command) (and) (the method by which the command was communicated to the accused) (is) (are) not important. The combination, however, must amount to a command from the accused’s superior commissioned officer that is directed personally to the accused, and the accused must know it is from (his) (her) superior commissioned officer.

NOTE 5. Time for compliance. If the evidence raises an issue as to when the accused was to comply with the command, the following instruction is appropriate:

When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused’s present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.

NOTE 6. Divestiture of status raised. When the issue has arisen as to whether the officer’s conduct divested him or her of the status of a superior commissioned officer, the following instruction is appropriate:

The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the charged offense in a manner which took away his/her status as a superior of the accused. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer’s rank and position under similar circumstances is considered to have abandoned that rank and position.

In determining this issue, you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

You may find the accused guilty of (specify the offense(s) alleged) only if you are satisfied beyond a reasonable doubt that (state the name and rank of the officer alleged), by his/her (conduct) (and) (language) did not abandon his/her status as a superior commissioned officer of the accused.

NOTE 7. Distinction between abandonment of status and office. Note that the above abandonment instruction mentions abandonment of the status as a commissioned officer, but not abandonment of “execution of office.” In this regard, it is different than the abandonment instruction in 3a-13-2, but similar to the offense in 3a-13-1.
NOTE 8. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), is ordinarily applicable.
Source: Instruction 3a-16-1 · view original on jagcnet.army.mil