The Court of Appeals for the Armed Forces (CAAF) recently decided the case of United States v. Brown. Chief Brown was one of 11 chief petty officers assigned to a Coast Guard cutter. While the ship was in dry dock, the group used a group text chat to communicate regarding ship’s business. On three occasions, Chief Brown sent messages to the group chat disparaging other chief petty officers in the group. On each of these occasions, the chief petty officer who was targeted by the message saw it on the group chat.
Chief Brown was court-martialed and found guilty of three specifications of violating Article 91(3) of the UCMJ. Article 91(3) prohibits contemptuous and disrespectful language or deportment towards a warrant officer, noncommissioned officer, or petty officer. Chief Brown was sentenced to be reduced to E-4, a reprimand, and 30 days restriction.
On appeal to the CAAF, the question was whether the facts of this case fit the elements of the Article 91(3) offense. After Congress passes the statutory language comprising an UCMJ offense, the President lays out the elements of each offense through Executive Order. For Article 91(3), the statutory language of the offense states that: “Any warrant officer or enlisted member who . . . treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his [or her] office . . . shall be punished as a court-martial may direct.”
The President then created these elements of this offense: (a) That the accused was a warrant officer or enlisted member; (b) That the accused did or omitted certain acts, or used certain language; (c) That such behavior or language was used toward and within sight or hearing of a certain warrant, noncommissioned, or petty officer; (d) That the accused then knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty officer; (e) That the victim was then in the execution of office; (f) That under the circumstances the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer.
In order to convict, the factfinder must find that the accused servicemember’s conduct meets each element of the offense. The third element of this offense requires that the behavior or language be used toward and within sight or hearing of the disrespected servicemember. Chief Brown argued that in order to meet this element, he had to have been within physical proximity of the other chief petty officers when he used the disrespectful language. A majority of the CAAF disagreed, finding that physical proximity is not a requirement and that a servicemember is guilty when their actions cause their disrespectful language or behavior to come within the sight or hearing of the victim. In this case, Chief Brown’s use of the group chat caused his victims to see the disrespectful language, thereby satisfying the third element of the offense. The CAAF noted that use of social media for disrespectful language or behavior could also satisfy this element.
Finally, the CAAF had to determine when the victim had to be in the execution of his office in order to satisfy the fifth element of the offense. Chief Brown argued that the victims had to be in the execution of the duties of their office at the time the disrespectful language was sent. The Government argued that the relevant time was when the language became known to the victims. The Coast Guard appellate court had already determined that checking the group chat for new messages was part of the chief petty officers’ duties, so they were all in the execution of their offices when they saw the messages, but a majority of the CAAF determined that the victims had to be in the execution of their office when Chief Brown actually sent the text messages for the fifth element to be satisfied.
The record of trial did not establish when Chief Brown sent the text messages to two of the three victims or what they were doing at the time, so the CAAF set aside the guilty findings to those two specifications. The third victim had testified that he was in the dry docks working when the message disrespecting him came in and that he checked it immediately. The CAAF found this testimony to establish that the victim was in execution of his duties when the message was sent and affirmed this specification. The case will now go back to the Coast Guard appellate court to either reassess the sentence or to order a rehearing on sentence.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.