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PhilCave
PhilCave, Lawyer
Category: Military Law
Satisfied Customers: 1064
Experience:  33 years military law experience.
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What is the difference between a rule and an order as defined

Customer Question

What is the difference between a "rule" and an "order" as defined by military commanders? Which one takes precedent?
Submitted: 5 years ago.
Category: Military Law
Expert:  PhilCave replied 5 years ago.
Well generally an order would be given by the commander in writing or orally to do or not do something.

A rule would be similar actually, but rules can be orders and recommendations.

Is there something specific you are thinking? Perhaps you have an example or two?
Expert:  PhilCave replied 5 years ago.
I can think of examples.

Here's one.

In the Rules for Courts-Martial there is a rule that a commander must make sure that a Soldier placed in pretrial confinement has a hearing within a certain time. He can't not follow that Rule. That's because the Rules are directed by the President (the commander in chief) through an Executive Order.

Sometimes there are Rules published in the barracks with tell residents what they cannot or can do while living there -- cleanliness, lights out, noise. These rules can be enforced as if orders.

Now there is a concept of punitive versus non-punitive Rules and regulations. Some orders are obviously that, an order. But sometimes a policy is put out. To make the policy punishable under the UCMJ the policy has specifically say in it that "failure to follow the policy is a violation of the UCMJ."

Again, if you can give a specific example or question you are thinking about that would help.
Customer: replied 5 years ago.
Situation: No written rule in unit, but unwritten rule in existence. Commander states that he is in agreement with the unwritten rule, but makes no formal order to such. When the unwritten rule was broken, soldier was issued article 15 for "failure to obey an order". During conference with Commander the question was posed "Do you understand the difference between a rule and an order". Soldier does not know.
Expert:  PhilCave replied 5 years ago.
This does not sound like something punishable under the UCMJ.
What is the "unwritten rule?"
A rule and an order can be the same thing.
But be more specific what was the Rule?
Customer: replied 5 years ago.

My son is a cadet at the Air Force Academy. There is an unwritten rule concerning Fraternization with first year cadets. He, unfortunately, had a relationship with a first year student. He was subsequently brought up on internal charges through a cadet tribunal and given punishment. The tribunal then brought him up on non-judicial charges and requested an article 15 for failure to obey a command as dictated by the UCMJ. He accepted his punishment, but the during the briefing of article 15 issuance, the Commander asked if my son knew the difference between a rule and an order. Since there is no "rule" and the Commandant never issued a formal order how is the offense punishable under the UCMJ?

 

My son was also told that as a cadet, the students are not "treated" as officers, but are given the rights of an officer during judicial proceedings. How is it possible that a soldier can be punished under the pretense of a unwritten rule and ambiguous order?

Expert:  PhilCave replied 5 years ago.
1. He had the option to refuse to accept NJP. They could then have court-martialed him at that point, but he'd have a fairer trial and better legal representation.

2. What did the ADC lawyer say to him when he was advising on whether to accept of object to NJP?

3. Was the first "hearing" and Honor Board?

4. Did the "evidence" for the NJP come out of the Honor Board?

5. What was the "relationship?" There are a lot of rules.

6. When was the NJP and did he appeal it?
Customer: replied 5 years ago.

1. Was told refusal is met with expulsion

2. Did not talk to an ADC

3 First hearing was before a Squadron & Group board, based on hearsay from another cadet.

4. NJP evidence was statements by Board and admission by my son.

5. Relationship was a friendship with possiblities. The relationship was kept discreet and no interaction on the base. The female is not in his chain of command.

6 The Commander handed down an article 15, an LOR, and a UIF on April 7th 2009.

My son has no intention of appealing the punishment as his goal is to graduate from the Academy. He is scheduled to meet with the Commander again in 50 days for final dispensation of order to retain or expel from the Academy. He is hoping at that time to give the Commander a true feeling and answer to the Commanders question of "the difference between a rule and an order"

Expert:  PhilCave replied 5 years ago.
OK, thanks.
Now I have a better understanding.

I think for his purposes as laid out here, there is no difference. It seems to me that what he is doing is following the military tradition of falling on his sword in the hopes that the commander will be merciful. These Academy "cases" can be complex, there's a lot invovled beyond black and white law. Although they will tell you there is no gray in the honor code, etc.

I think he should talk with the ADC at Peterson, or the one at the Academy. He needs to moot the questions and thoughts in answer to those questions with someone who is used to making presentations to the commander.

Sorry I couldn't help beyond that.
Sincerely.

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