Defense/Divestiture

Abandonment or divestiture of rank.

Are you accused of disrespect to a superior?

If that superior has first been abusive toward you, and you reacted in a disrespectful manner, you may have a defense based on that person’s abandonment of rank. A superior has a duty of respect to a subordinate, that is considered to be a hallmark of good leadership. Toxic leaders may find themselves being faced with disrespect, as might leaders who harass or sexual harass a subordinate.

The abandonment of rank defense was first recognized in Ivory, a Navy case. In that case, the then Navy-Marine Corps Court of Military Review, decided that a officer who uses racial epithets and is otherwise verbally abusive lost his right to respect. When some evidence shows such toxic conduct, the subordinate may raise the affirmative defense of abandonment of rank. The military judge has a duty to instruct the Members (jury) that they must consider abandonment or rank and that the prosecution must prove no abandonment of rank beyond a reasonable doubt.

Abandonment or divestiture is an affirmative defense which if raised shifts the burden to the prosecution to prove beyond reasonable doubt that there was no abandonment or divestiture. United States v. Ivory, NMCM 94 01647, 1995 CCA LEXIS 387, at *5-6 (N-M Ct. Crim. App. Aug. 10, 1995) (unpub.) (an officer’s use of racial epithets and other verbally abusive behavior directed at the appellant constituted abandonment of rank.).

The defense was unknown to Winthrop and first showed up in Noriega. Milhauser at 3, infra.

[T]his Court has long held that a superior can abandon his rank and position of authority in dealing with a subordinate by his own misconduct. United States v. Noriega, 7 C.M.A. 196, 21 C.M.R. 322 (1956). United States v. Richardson, 7 M.J. 320, 321 (C.M.A. 1979).

An individual can “abandon his rank and position of authority in dealing with a subordinate by his own misconduct.” United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) (citing United States v. Noriega, 7 C.M.A 196 (C.M.A. 1956)).

The Government argues that the defense of abandonment of rank only applies to offenses against commissioned officers and does not apply to offenses against noncommissioned officers. The Court of Appeals for the Armed Forces and several Service courts, including this one, have held, at least implicitly, that abandonment of rank is a defense to disrespect or disobedience to a noncommissioned officer.

United States v. Addison, 79 M.J. 798 (N-M.C. Ct. Crim. App. 2020) (unpub.).

We do not view our divestiture case law as establishing a per se rule that once an officer engages in misconduct, he can never assert or regain his status or office. See United States v. Lewis, supra (rejecting per se rule that propriety of conduct is totally dependent on finding of probable cause). Such a rule would implicitly discourage officers from stopping their misconduct and impermissibly narrow the broad protection afforded public officers in the performance of their legitimate duties. See generally United States v. Hoy, supra.

United States v. Diggs, 52 M.J. 251, 257 (C.A.A.F. 2000).

A noncommissioned officer whose own language or conduct, under all the circumstances, departs substantially from the required standards appropriate to his rank and position, under the same or similar circumstances, is deemed to have abandoned that rank and position. United States v. Struckman, 20 U.S.C.M.A. 493, 43 C.M.R. 333 (1971); United States v. Noriega, 2 U.S.C.M.A. 196, 21 C.M.R. 322 (1956); United States v. Vallenthine, 2 M.J. 1170 (N.C.M.R. 1975); United States v. Johnson, 43 C.M.R. 604 (A.C.M.R. 1970), pet. denied, 20 U.S.C.M.A. 667, 43 C.M.R. 413 (1971).

United States v. McDaniel, 7 M.J. 522, 523 (A.C.M.R. 1979).

See also, MAJ E. R. Milhauser, The Divestiture Defense and United States v. Collier. 1990 ARMY LAWYER 3 (March 1990).

In a case where divestiture has been raised, the military judge will instruct as follows.

(Officer victim) The evidence has raised an issue as to whether (state the name and rank of the officer alleged) conducted himself/herself prior to the offense of disrespect to a superior commissioned officer in a manner which took away his/her status as a superior commissioned officer to the accused. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards of an officer and a (gentleman) (gentlewoman) appropriate for that officer’s rank and position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances (including but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)). You may find the accused guilty of the offense of (specify the offense(s) alleged) only if you are satisfied beyond a reasonable doubt that (state the name and rank of the officer) by his/her (conduct) (and) (language) did not abandon his/her status as a superior commissioned officer of the accused.

(NCO victim) The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a (warrant), (noncommissioned) (petty) officer. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for a (warrant) (noncommissioned) (petty) officer under similar circumstances is considered to have abandoned his/her status as a (warrant) (noncommissioned) (petty) officer. In determining this issue you must consider all the relevant facts and circumstances, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)). You may find the accused guilty of the offense of assault upon a (warrant) (noncommissioned) (petty) officer only if you are convinced beyond a reasonable doubt that (state the name and rank of the alleged victim), by his/her (conduct) (and) (language) did not abandon his/her status as a (warrant) (noncommissioned) (petty) officer.

(Lookout or Sentinel or law enforcement victim) The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a (sentinel) (lookout) acting in the execution of his/her duty. A (sentinel) (lookout) whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for the (sentinel’s) (lookout’s) rank and position under similar circumstances is considered to have abandoned that position. In determining this issue you must consider all the relevant facts and circumstances, (including but, not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)). You may find the accused guilty of assault on a (sentinel) (lookout) in the execution of his/her duties only if you are satisfied beyond a reasonable doubt that (state the name and rank of the alleged victim), by his/her (conduct) (and) (language) did not abandon his/her status as a (sentinel) (lookout) acting in the execution of his/her duty.

Military Judge’s Benchbook (Feb. 2020).