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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18811
Experience:  Lawyer and current JAG officer.
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In reference to Article 89, I wanted to gain understanding

Customer Question

In reference to Article 89, I wanted to gain understanding of the definition of a superior officer:
It reads,
Superior commissioned officer.
(a) Accused and victim in same armed force. If the accused and the victim are in the same armed force, the victim is a “superior commissioned officer” of the accused when either superior in rank or command to the accused; however, the victim is not a “superior commissioned officer”of the accused if the victim is inferior in command, even though superior in rank.
Currently, I am a BDE HHC commander. I am a CPT.
As a company commander, with the majors on my personnel roster (AAA-162), I am their company commander with all duties and responsibilities. Due to the definition of superior commissioned officer - even though I am inferior in rank, the MAJ (victim) is not a victim because " however, the victim is not a “superior commissioned officer”of the accused if the victim is inferior in command, even though superior in rank."
Submitted: 3 months ago.
Category: Military Law
Expert:  Allen M., Esq. replied 3 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

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.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 3 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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