These are especially tense days for the military in the United States. A lot has been said about what soldiers can and cannot do. And although it is a fairly complex subject, we will try to shed some light on when and if a U.S. armed forces member can refuse a direct order.
Every man or woman who enlists (or re-enlists) in the United States armed forces is obliged by law to take the Enlistment Oath. This oath is very straightforward, stating that all soldiers must “support and defend the Constitution of the United States against all enemies, foreign and domestic.” It also includes that any military man or woman must “obey the orders of the President of the United States and the orders of the officers appointed over [them].”
Hence, in short, no soldier can refuse any order that comes from a superior. But, as expected, there are certain exceptions. Depending on the situation (and nature of the command), a member of the U.S. armed force might refuse to comply with a direct order — especially is she/he deems it as “unlawful.”
Below we will further explain why and when soldiers can refuse an order:
Soldiers can refuse an order if she/he is willing to accept the consequences
We are all free to do as we please. It might seem “philosophical,” but it is true. No one can oblige another human being to do something they refuse to do. Of course, there may be extenuating circumstances that might persuade people to do (or say) something they are not comfortable in doing. But in the end, no one has control over someone else’s actions.
Based on this premise, any soldier can refuse an order. In other words, any U.S. army man can physically abstain from complying with a superior’s command. However, they must be willing to live with the consequences of that decision.
When a soldier fails to comply with an order, he/she will go to Court-Martial, a military trial that will determine if the soldier is at guilt. However, military trials are very different from regular trials and are subject to particular laws and regulations.
Furthermore, there are three different types of military Court-Martial:
A Summary Court-Martial deals with minor incidents of misconduct and often allows for simple procedures. The sentence imposed highly relies on the grade of the soldier.
Depending on how the trial is conducted, a Special Court-Martial can:
- Consist of a military judge, prosecutor, defense counsel, and a jury.
- Be conducted only by an army judge can decide if the accused is guilty and his/her possible sentence.
A special Court-Martial may impose any punishment authorized by military statutes except death, dishonorable discharge, dismissal of service, more than 12 months of confinement, and forfeiture of pay for more than three months.
A Court-Martial can only decide over military offenses. In the event of an offense that violates state laws, federal laws, and military laws, a special panel must determine which jurisdiction will prosecute.
It is worth mentioning that not only soldiers who refuse to comply with an order go to trial. Any soldier may be subject to prosecution if it is considered necessary by his/her superior or the institution he/she serves.
- Soldiers can refuse an order if he/she considers it to be unlawful
As we mentioned before, every military officer takes an oath upon enlisting. Nonetheless, if thoroughly analyzed, that vow does not imply that they must blindly follow all orders without further consideration.
Based on the Enlistment Oath, all members of the U.S. armed forces must “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” Hence, the pledge clearly states that all soldiers must abide by constitutional laws and regulations.
It is true that soldiers also accept to “obey the orders of the President of the United States and the orders of the officers appointed over [them].” But, there are cases where an order clearly violates the law. As a result, an officer can and should refuse to execute it.
For instance, a military man cannot deliberately kill a civilian with the excuse that she/he was “following orders.” As a soldier, his/her first obligation is to obey the law. And the law prohibits killing unarmed civilians — even when at war.
Of course, this is merely the theory. In practice, deciding whether or not to comply with an order might not be that easy. In other words, when at war, differentiating a “lawful” request from an “unlawful” order might not be as simple as it seems. We must stop to consider that soldiers are mostly required to act fast while facing extreme (and lethal) conditions.
Thus, the question remains. To obey or not to obey? In the end, it all comes down to the nature of the order. As we learned before, military members disobey orders at their own risk. However, they also follow orders at their own risk.
- Soldiers can refuse an order if it goes against the Manual for Courts-Martial or if it violates the Uniform Code of Military Justice
Two major authorities govern the U.S. military justice system. The first one is known as the Manual for Courts-Martial (MCM). It is an official guidebook to the conduct of Courts-Martials in the U.S. military.
The MCM is divided into five parts, plus twenty-two appendices:
- Part I – it is known as the Preamble, giving background and jurisdictional information.
- Part II – explains the general rules for Courts-martial
- Part III – lays out the Military Rules of Evidence
- Part IV – sets forth the elements and punishments of offenses
- Part V – provides guidelines for the imposition of non-judicial punishment
Additionally, the appendices provide the constitution of the United States, analysis of the Parts, historical executive orders, forms, and more.
The Uniform Code of Military Justice (UCMJ) is the backbone or foundation of military law in the United States. Its sole purpose is to “to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” It was created and established by the U.S. Congress in the 1950s.
Nonetheless, some revisions and observations have been made since its approval. The latest version of the UCMJ is found in the newest edition of the Manual for Courts-Martial revised in 2019.
The UCMJ has several provisions that touch upon obeying orders. Nonetheless, it also clarifies that the duty of obedience extends only to “lawful” requests. Therefore, if a direct order goes against what is considered “legal” or “appropriate” within military laws, a soldier can (and should) refuse to comply.
Wondering what Marines do during peace time: Read this article to find out: https://civilservicehq.com/what-do-the-marines-do-when-there-is-no-war/
The “law of obedience”
The “law of obedience” is based on the long and vital tradition of civilian control of the military. Distinguishing between “illegal” orders (which a soldier must disobey) and those commands that can be “unwise” (which a soldier is obligated to carry out) can be very subjective. Hence, to make it more transparent for members of the armed forces, the “law of obedience” was set in place.
In a nutshell, the “law of obedience” applies to the Secretary of Defense and all members of the armed forces. It explains when soldiers are allowed to disobey orders – and the consequences of their doing so. It also reinforces the proper functioning of the chain of command within the institution and, much like the UCMJ, defines criminal offenses under military law.
As explained in the “law of obedience,” compliance to higher orders is essential to military effectiveness. However, the supremacy of the law is also a fundamental value. Consequently, service members are not expected to obey orders that are “manifestly” or “patently” illegal.
But, note that the “law of obedience” does not narrow down what can be considered as “unlawful.” So, it is tough to determine what truly qualifies as “illegal.” Consequently, most Court-Martials are analyzed on a case-by-case basis.
We have talked a lot about military obedience. And as we learned throughout this article, any member of the armed force is allowed to refuse a direct order if he/she considers it to be “unlawful” or illegal. But, what happens when a soldier refuses an order without a valid reason?
The chain of command is the primary way in which the military maintains order and carries out its duties. Hence, if a service member behaves in a way that disrupts the chain of command (i.e., refusing to comply with an order), he/she could be reprimanded for insubordination.
A soldier is guilty of insubordination if he/she assaults, disobeys, or disrespects a superior officer. Moreover, a soldier can be accused of insubordination even if the superior officer is not within his/her direct chain of command. In some cases, it can include different military branches as well. The exact definitions and various types of insubordination are explained in Articles 89, 90, 91, and 92 of the UCMJ.
However, Article 91 is the most specific, explicitly qualifying as insubordinate:
”Any warrant officer or enlisted member who— strikes or assaults a warrant officer, non-commissioned officer, or petty officer, while that officer is in the execution of his office; willfully disobeys the lawful order of a warrant officer, non-commissioned officer, or petty officer; or treats with contempt or is disrespectful in language or deportment toward a warrant officer or petty officer while that officer is in the execution of his office; shall be punished as a court-martial may direct.”
For a U.S. military officer to be considered guilty of disobedience, there must be proof that the accused intentionally disobeyed a lawful order that was personally requested from a superior. Consequently, there must be no grey area with the nature of the order, whether verbal or written.
Note that the maximum punishment for any violation of Article 91 varies according to the specifics of the charge. Additionally, the higher up the chain of command a guilty person’s actions climb, the harsher the punishment.
For example, if a soldier is convicted of striking or assaulting a superior officer, the punishment might entail a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. On the contrary, if an army man is accused of, let’s say contempt or disrespect he/she could face imprisonment for three months and forfeiture of pay.
Of course, every soldier has the right to a defense when being accused of insubordination. A service member may appeal to different arguments in the face of an insubordination charge. Some of the most common, include:
- Stating he/she did not know the person giving the order was a superior officer.
- Admitting that she/he was acting to discharge another lawful duty
- Explaining that the superior officer acted in a disrespectful or dishonorable manner.
A military discharge is given when a soldier is released from their duties or obligation to serve. The quality of a soldier’s active duty service determines the type of discharge he/she receives. In the United States, there are five different types of military discharge, including:
A General Discharge denotes that a service member completed service or training with less than honorable circumstances. In most cases, a condition such as an illness or injury may lead to a general discharge. However, there are circumstances where a general release is due to unacceptable behaviors, including, for example, drug abuse.
Any respected U.S. soldier strives for an Honorable Discharge. In the military, receiving an Honorable Discharge is like getting an A+. It generally means that the service member completed his/ her duty with admirable professional conduct.
A soldier with an honorable discharge receives full benefits and tend to have an easier time finding employment after their time in the armed forces.
Bad Conduct discharge is, for lack of a better word, a punishment. And it is generally associated with a military crime. If a soldier is discharged for bae conduct, no benefits are available to them.
A Dishonorable Discharge is also a punitive action against a military member. But, as opposed to discharge for bad conduct, it is given for severe offenses. A soldier accused of murder or dissertation at Courts-Martial will receive a Dishonorable Discharge.
Thus, much like any convicted felon, veterans with a Dishonorable Discharge do not receive privileges or benefits and have a tough time finding a job after service.
Other Than Honorable (OTH) Discharge
A judgment of OTH Discharge is the rarest form of military discharge. It only occurs when a military member is at odds with the civilian court system, for felony convictions that lead to imprisonment.
Although uncommon, it is the most severe of the administrative discharges. A member of the armed forces that receive an OTH is banned from ever re-enlisting into the armed forces and are not entitled to benefits.
Whatever the case might be, every member of the U.S. armed forces will receive a discharge once they have completed their service or training or if they have a valid reason to request an early release.
There are many reasons, and ways, in which a member of the armed forces can be expelled from the army. Nonetheless, if a soldier wants to request an early discharge, there are different mechanism he/she could take advantage of, including:
- Early Release for Education
- Military Hardship Discharge
- Conscientious Objector Discharge
- Convenience of the Government
- Military Service Commitments
- And more
Can a soldier refuse to go to war?
In short, a soldier cannot refuse to go to war. When an individual voluntarily enlists in the U.S. armed forces, it is a given that soldiers might be required to protect their country by going to war. Nonetheless, technically a soldier can be a “conscientious objector” —although many might consider this to be far-fetched.
A “conscious objector” is any civilian who refuses to perform military service based on freedom of thought, conscience, or religion. Depending on the country, these individuals might be assigned to an alternative civilian service as a substitute for military service.
Can a soldier go to jail?
A soldier can go to jail if he/she commits a serious offense, and it is deemed appropriate by a Courts-Martial. In other words, members of the U.S. armed forces are subject to the Uniform Code of Military Justice. Thus, they can be convicted and sentenced to confinement.
But, depending on the offense and jurisdiction, the sentence might be served within a confinement facility, military prison, or a civilian prison.
Who can join the U.S. armed forces?
Any male or female can join the United States armed forces if he/she complies with all the following requisites:
– He/she is a United States citizen or resident alien.
– He/she is at least 17 years old.
– He/she has obtained a high-school diploma (or higher degree)
– He/she has passed all the necessary medical examinations
However, depending on the military branch, the candidate might also need to comply with other requisites (e.g., have no more than to dependents, pass the Armed Services Vocational Aptitude Battery test)
To learn more on how to pass the ASVAB exam click here!
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Please note: This blog post is for educational purposes only and does not constitute legal advice. Please consult a legal expert to address your specific needs.
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