On October 23, 2023, the military's highest court, the Court of Appeals for the Army Forces (C.A.A.F.) issued an opinion in the case of the United States v. Chief Machinery Technician, (E-7), Fernando M. Brown, Case No. 22-0249, and overturned some aspects of the petty officer's court-martial conviction for disrespect under Article 91 of the Uniform Code of Military Justice (U.C.M.J.).
The Court's opinion held that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed (i.e. sent) the disrespectful language or behavior the victim was then in the execution of his or her office.
This opinion will have far-reaching ramifications across all services that physical presence is not required for disrespect to be established. The Court's ruling is a cautionary tale to military servicemembers who may gripe (disrespectfully) about their superiors outside of their presence via text or other social media. If at the time the disrespect is conveyed (i.e. sent) and the senior warrant, noncommissioned, or petty officer is then in the performance of his or her duty, a conviction for disrespect will be upheld.