To: Castor B. Plentibux, Esq.

From: Jack Starr, Paralegal Re: Divestiture as a Special Defense OFFICE RESEARCH MEMORANDUM Statement of Assignment On the 20th of August 2010, you tasked me with researching the topic of divestiture and wanted to know if it can be used as a defense under the military offense of disrespect (Article #91, UCMJ). In our conversation, you recalled a case – United States v. Diggs that you thought may have dealt with the issue. In addition to this case, you suggested I take a look at an article written by Milhizer in the Army Lawyer that discusses the issue of divestiture. Issue Can a defense of divestiture be used for the offense of disrespect against a noncommissioned officer? Brief Answer Yes. According to case law a defense of divestiture can be used for the offense of disrespect if the elements of divestiture are met. Statement of facts The only information available to us at this time is that Sergeant Payne is being charged with disrespect. Disrespect is a charge punishable under Article #91, of the Uniform Code of Military Justice (UCMJ). The accusation against Sergeant Payne state that he committed the offense of disrespect when he yelled and cursed at his First Sergeant. Analysis Before I begin the analysis of this particular defense I would like to briefly explain the significance of the rank structure in the military. Milhizer describes the military rank structure “…is a distinctly hierarchical society.”1 He further elaborates that there is a special status afforded to commissioned and noncommissioned officers in the execution of their duties, and how this status is protected and reinforced in part by the UCMJ. It is this special status that is the essence of the divestiture defense. The courts primary consideration of divestiture as a defense requires that it focuses on the status and behavior of the victim, and whether such victim detracted substantially from the standards of his rank and position. The victims conduct must also be related to the accused. The circumstances surrounding the alleged misconduct must also be viewed in the entire context of the incident.

It is very important to remember that the use of divestiture as a defense does not make the accused innocent of the charges. In using this defense the accused does not contest the alleged misconduct, but
1

 See Major Eugene R. Milhizer, The Divestiture Defense and United States v. Collier, 1990 Army Law 3, March 1990. The  Author describes the military rank structure as a distinctly hierarchical society and a pervasive aspect of military life. 

noncommissioned. we will assume that the First Sergeant’s behavior deviated at some point from the standard of conduct by which his rank and position are protected under Article #91. Insubordinate conduct toward warrant officer.M. 322.A. UCMJ. He continued to serve alcohol to a basic Airman who was already acting aggressive and threatening. excuse or exculpate the alleged misconduct.S. the victim in this case was a Lieutenant acting as a bartender at a party. 1956 CMA LEXIS 244. noncommissioned. noncommissioned. or petty officer.J. or used certain language. Middleton. ( b ) Accused did or omitted certain acts. ( a ) Accused was a warrant officer or enlisted member. noncommissioned. Rule of Law Article #91.” United States v. Noriega. 196 (1956). UCMJ. 251 (2000).M. 21 C. There is no case law under provoking speeches and gestures where the accused has used a divestiture defense. With respect to divestiture in this case. attempts to either justify. 36 M. or petty officer. The Court reversed this conviction because it found that the accused actions and words did not detract from the authority of the Lieutenant who was not acting in any official capacity. Later the officer charged the airman with disrespect. or the government may move to that charge in order to avoid a divestiture defense.rather. Counter-analysis An issue that may be brought up by the defense is the issue of Provoking Speeches and Gestures under Article #117. 52 M. 835 (1993). 2000 CAAF LEXIS 195.C. this court explained that divestiture only occurs when the actor holds authority by virtue of rank and position and divests himself of that authority by improper conduct. UCMJ. ( d ) Accused then knew that the person toward whom the behavior or language was directed was a warrant. by such behavior or language. noncommissioned officer or petty officer ( 3 ) Treating with contempt or being disrespectful in language or deportment toward a warrant. When the airman displayed an aggressive posture at the lieutenant.R.J. or petty officer. ( c ) Such behavior or language was used toward and within sight or hearing of a certain warrant. United States v. states: “The divestiture defense provides than an accused may not be convicted or punished more severely for assaulting or insulting an individual of superior rank or status where the victim behaved in a manner toward the accused such as to lose the protection of the superior rank or status. 1993 CMR Lexis 40. Diggs. or petty officer. Case Law United States v. 7 U. UCMJ. Article # 117. Provoking speeches and gestures . and ( f ) Under the circumstances the accused. the officer walked away apparently feeling disrespected. ( e ) Victim was then in the execution of office. treated with contempt or was disrespectful to said warrant. It is possible that either the court may lessen the charge to provoking speeches and gestures.

the First Sergeant is not trained as a military police man to remain calm in the face of great provocation. Without this information we cannot know for certain whether we can use a divesture defense. In this case Sergeant Melendez. 849. 1992 CMR LEXIS 244. There is no case law that has dealt with this issue because provoking speeches and gestures deals with inciting an emotion upon another individual by the use words that produce mild anger. The courts will look at the entire context of the incident to make a determination of allowing a divestiture defense. An individual does not have to be in the execution of his duties to file a charge under this offense. United States v.J. A search for credible witnesses that can testify to the events in this case is going to be essential in convincing the courts of the merits of divestiture. then it is possible that a divestiture defense can be used. . In regards to this case. 34 M. acting in the official capacity as a Military Police officer was not provoked by the appellant's language because his training taught him to remain calm when faced with confrontation. of which a divestiture defense may not be applied. The defense may also counter with a lesser charge of Provoking Speeches and Gestures under Article # 117. Conclusion An inquiry into the events preceding the alleged misconduct must be established to determine whether the First Sergeant deviated from the standards afforded under his rank and position. If a divestiture defense is used for this case. UCMJ. If it is found that prior to the alleged misconduct that the First Sergeant did substantially deviate from these standards.( 1 ) Accused wrongfully used words or gestures toward a certain person. only justifying it. Sergeant Payne must understand that he is not contesting to the alleged misconduct. and ( 3 ) Person toward whom the words or gestures were used was a person subject to the code. Davis. Another point to consider is that because of his rank and position a First Sergeant is typically not accustomed to disrespect or disobedience by subordinates. I believe the main priority at this time is obtaining all information related to the incident and finding credible witnesses that are willing to testify. He may have to agree upon a lesser charge that may still affect his career. ( 2 ) Words or Gestures used were provoking or reproachful.

Law Office of Plentibux & Moore 2100 Main Street Tulsa. Payne On the 17th of August 2010. Answer Based upon the above facts and applicable law. you contacted our office requesting assistance on a matter in which you informed me that your son was involved in a verbal altercation with his First Sergeant that resulted in your son being charged with disrespect. In other words. Mail Mr. The answer to a divestiture defense lies in the actions of the First Sergeant prior to your son yelling and cursing at him. then it is possible that a divestiture defense can be applied to this case. he was involved in a verbal altercation with his First Sergeant. As a result of this incident your son is being charged for the offense of disrespect for yelling and cursing at his superior noncommissioned officer. 2010 Via Facsimile and U.com August 25.Plentimoorelaw. . cursing and yelling at a superior noncommissioned officer is an offense punishable under Article #91 of the Uniform Code of Military Justice. A divestiture defense may be applied but it must meet certain requirements for the courts to consider it. did the First Sergeant act in a manner that would be considered substantially out of character or inappropriate for someone of his rank and position? This is the question that must be answered for the courts will consider the status of the victim. The opinion of this letter is based on law listed in the facts section below. OK 73179 Re: Disrespect and Divestiture Defense Dear Mr. and the victim's relationship to the accused. Be advised that this letter is limited to the facts discussed below. If the First Sergeant acted in a way that detracted from the standard of conduct which he is otherwise protected under rank and position. We discussed the possibility of a divestiture defense that can possibly be applied to this case.S. Facts The only facts available to us at this time is that your son Ima Payne is a Sergeant with the United States Army Infantry and that at some unspecified date and time. OK 74429 (405) 234-4567 * Fax 234-6789 * www. Fred Payne 5501 Maplewood Drive Oklahoma City. Without further information regarding the incident we cannot determine with certainty whether a divestiture defense can be applied to this charge. the circumstances surrounding the alleged misconduct.

it is crucial that we determine the facts in the whole context of the incident to determine whether we can apply the divesture defense to this case. I hope this information answers your questions. Insubordinate conduct toward warrant officer. In United States v. cursing and yelling at a noncommissioned officer is considered being disrespectful in language.Explanation Article #91. ( c ) Such behavior or language was used toward and within sight or hearing of a certain warrant. and ( f ) Under the circumstances the accused. it ruled that the accused may not be punished for insulting an individual of superior rank when the victim behaved in a manner which induced the loss of protection afforded under his rank and status. In summary. noncommissioned. or petty officer. noncommissioned officer or petty officer ( 3 ) Treating with contempt or being disrespectful in language or deportment toward a warrant. Diggs. your son can be charged for disrespect. but only justifying it. Middleton. Castor B. We are optimistic that with more information we can make a solid determination on the direction of this case. ( e ) Victim was then in the execution of office. In another recent case. noncommissioned. Should you decide to pursue this case we will be ready to represent your son. or petty officer. Noriega. UCMJ. treated with contempt or was disrespectful to said warrant. ( a ) Accused was a warrant officer or enlisted member. Previous cases have touched on the issues of divestiture. the courts determined that divestiture only occurs when an individual divests himself of the his superior authority by improper conduct. Another thing to consider is that if your son pursues a divestiture defense he not contesting the alleged offense. In the case of United States v. Plentibux Attorney at Law CBP/js . based on Article #91 of the Uniform Code of Military Justice. It is my opinion that if we can prove that the First Sergeant acted in a manner that substantially detracted from his protected status as a noncommissioned officer then we can apply the divestiture defense to this case. According to the above listed article. noncommissioned. which may lead the court to rule on a lesser offense. noncommissioned. United States v. The court decided that the officer was not acting in the execution of his duties and that the airman's disrespect did not detract from his authority. ( d ) Accused then knew that the person toward whom the behavior or language was directed was a warrant. the courts reversed a decision of disrespect when a Lieutenant was disrespected by an airman. by such behavior or language. Sincerely. or petty officer. Bases on these case laws. It is yet to be determined based upon the facts if the First Sergeant was in the execution of his duties when the incident occurred. or used certain language. or petty officer. ( b ) Accused did or omitted certain acts.

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