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I agree that that definition of the "superior commissioned officer" would make being charged under Article 89 on these facts problematic. Now, that being said, it really depends on what action is being taken. If a counseling statement, referral OPR/OCR or some other administrative action is being considered, then the command taking the action has much less to be concerned about with the specified elements. No court will review their determinations.
Additionally, there remains the fact that while the behavior may not fit directly into this Article, there are others that could apply, such Article 117 (provoking speeches or gestures) or Article 133 (Conduct unbecoming).
So, while the analysis is technically correct, it wouldn't necessarily change the outcome in this situation unless you were specifically talking about a court martial.
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