What is the ultimate offense doctrine and how might it apply to my case?
I am devoting this blog to the “ultimate offense doctrine” because military appellate courts have been making more frequent rulings based on this doctrine lately. The ultimate offense doctrine rears its head when a servicemember is ordered to obey a law that already exists and the servicemember is charged at a court-martial with failing to obey the order to obey the law instead of with the actual law he or she broke. The ultimate offense doctrine states that the order to obey the law charge cannot be valid when it extends beyond the actual law broken. The most common “ultimate offense” being ruled on by the appellate courts lately is “breaking restriction.” Under the U.C.M.J., breaking restriction is an Article 134 offense. This offense involves a servicemember being ordered by someone to stay within certain physical limits and an allegation that the servicemember ultimately went beyond these limits. In these recent cases, such as, U.S. v. Phillips, U.S. v. Gillum, U.S. v. Jorgensen, U.S. v. Sylvain, U.S. v. Dabrowski, U.S. v. Gobert and U.S. v. Porter, the servicemember was convicted at the court-martial level of disobeying an order under either Article 90, 91 or 92 of the U.C.M.J. instead of the ultimate offense of “breaking restriction” under Article 134 of the U.C.M.J. The appellate court in each of these cases dismissed the improper charge based on the ultimate offense doctrine. This doctrine may apply in your case if you are facing or faced a charge of failing to obey an order to obey a law and are or were charged with the failure to obey the order instead of the law itself. Call me if you think you may have this type of situation. There are many appellate issues out there that you may not think apply to you or you may have never heard of, but I have the expertise to know whether you have a valid appeal or not. Call me and I will walk you through it. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.