Article 89: Disrespect Toward Superior Commissioned Officer Under the UCMJ

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Article 89 holds two offenses with very different ceilings. Disrespect toward a superior commissioned officer carries up to a bad-conduct discharge and 1 year if the officer is superior in command, or 6 months if superior only in rank. Striking, raising a weapon against, or offering violence to a superior commissioned officer in the execution of office carries up to a dishonorable discharge and 10 years, or death if committed in time of war.

Two subsections since 2019

10 U.S.C. § 889(a) punishes any person subject to the UCMJ “who behaves with disrespect toward that person’s superior commissioned officer.” Section 889(b) punishes a person who “strikes that person’s superior commissioned officer or draws or lifts up any weapon or offers any violence against that officer while the officer is in the execution of the officer’s office.”

Subsection (b) is new to Article 89. Before the Military Justice Act of 2016 took effect on January 1, 2019, Article 89 held only the disrespect offense, and assaulting a superior commissioned officer was part of Article 90 (Cornell LII amendment notes to §§ 889 and 890). A pre-2019 assault on an officer is therefore charged under the old Article 90.

Who is a “superior commissioned officer”

The UCMJ defines the term as “a commissioned officer superior in rank or command” (10 U.S.C. § 801(5), quoted in MCM 2024, Part IV, ¶ 15.c(1)). That definition has these effects:

  • Rank or command. Either kind of superiority is enough for guilt, but the maximum for disrespect depends on which one (see the table below).
  • Commissioned warrant officers. Title 10 states that “The term ‘commissioned officer’ includes a commissioned warrant officer” (10 U.S.C. § 101(b)(2)), and chief warrant officer grades are filled by commission (10 U.S.C. § 571(b)). A chief warrant officer who is superior in rank or command therefore fits the Article 89 definition. Article 91 separately protects “warrant officers,” and the two statutes do not themselves say which one the government must use when the victim is a commissioned warrant officer. Grouping all warrant officers outside Article 89 is not supported by the statutory definitions.

Elements of disrespect

  1. The accused did or omitted certain acts, or used certain language, to or concerning a certain commissioned officer.
  2. The behavior or language was directed toward that officer.
  3. The officer was the accused’s superior commissioned officer.
  4. The accused then knew the officer was his or her superior commissioned officer.
  5. Under the circumstances, the behavior or language was disrespectful to that officer.

(MCM 2024, Part IV, ¶ 15.b(1).)

What counts as disrespect

“Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer” (¶ 15.c(2)(b)). The Manual’s guidance covers both words and acts:

  • Words: abusive epithets or other contemptuous or denunciatory language. It is immaterial whether the words refer to the superior as an officer or as a private individual. “Truth is no defense.”
  • Acts: neglecting the customary salute, or showing marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the superior’s presence.
  • Presence: the behavior does not have to occur in the officer’s presence, “but ordinarily one should not be held accountable under this article for what was said or done in a purely private conversation” (¶ 15.c(2)(c)).
  • Knowledge: an accused who did not know the person was a superior commissioned officer may not be convicted. Knowledge “may be proved by circumstantial evidence” (¶ 15.c(2)(a)). In joint or unfamiliar settings, whether the accused recognized the officer’s status can be the central fact.

Elements of striking or assaulting a superior commissioned officer

  1. The accused struck, drew or lifted up a weapon against, or offered violence against a certain commissioned officer.
  2. The officer was the accused’s superior commissioned officer.
  3. The accused then knew it.
  4. The officer was then in the execution of office.
  5. If charged as a wartime offense: it was committed in time of war.

(¶ 15.b(2).)

The Manual defines each act (¶ 15.c(3)):

  • Strikes: “an intentional contact and includes any offensive touching of the person of an officer, however slight.”
  • Draws or lifts up any weapon against: drawing a weapon aggressively, or raising or brandishing it threateningly in the superior’s presence. A firearm counts “whether or not loaded,” and so does a club or anything that could deliver a serious blow.
  • Offers any violence against: any other battery or assault. If not carried out, the violence “must be physically attempted or menaced. A mere threatening in words is not an offering of violence.”

Execution of office. An officer is in the execution of office when engaged in any act or service “required or authorized by treaty, statute, regulation, the order of a superior, or military usage.” Violence against a superior by someone over whom that officer must maintain discipline at the time is generally treated as violence against the officer in the execution of office, and a commanding officer aboard ship or of a unit in the field “is generally considered to be on duty at all times” (¶ 15.c(3)(f)). If the officer was not in the execution of office, the assault falls outside § 889(b) and may be charged as assault under Article 128.

When the officer loses the protection of Article 89

The Manual recognizes a special defense: a superior commissioned officer “whose conduct in relation to the accused under all the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article” (¶ 15.c(2)(d)). The accused cannot then be convicted of disrespect toward that officer.

For the assault offense, it is also a defense that the accused acted in the proper discharge of a duty, or that the officer behaved so as to lose the protection of the article. The Manual’s example: an officer who initiates an unlawful attack on the accused loses the protection, and the accused’s response may also be excused as self-defense against any lesser assault charge, depending on the circumstances (¶ 15.c(3)(g)).

Command, rank, peace, and war set the ceiling

Offense Maximum (¶ 15.d)
Disrespect toward a superior commissioned officer in command Bad-conduct discharge, total forfeitures, 1 year
Disrespect toward a commissioned officer superior in rank Bad-conduct discharge, total forfeitures, 6 months
Striking, weapon, or violence, in execution of office, in time of war Death or such other punishment as a court-martial may direct
Striking, weapon, or violence, in execution of office, any other time Dishonorable discharge, total forfeitures, 10 years

Disobeying the same officer is a separate offense under Article 90, and a single incident can involve both. Contemptuous words by an officer against the President, Congress, or the other named civilian officials fall under Article 88 instead.

Sources

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.