Case
Citation: U.S. v. Noriega,
7 USCMA 196; 21 C.M.R. 322 (CMA 1956).
Parties:
United States,
Appellee
Juan
R. Noriega, Appellant
Facts:
Appellant was
court martialed for several offenses including disrespect to a superior while
attending a party where his superior was bar tending.
Procedural History:
·
Special
Court Martial
·
United
States Army Court of Military Appeals
Issue:
Was there
sufficient evidence to prove divestiture of duty in this case and how does it
relate to Article 91 of the Unif. Code. Mil. Justice?
Holding:
The court
concluded that the appellant’s lieutenant did not personally regard the
airman's conduct or words as objectionable. He walked away without any
remonstrance, and he did not appear at the trial to testify against the airman.
In this case, the court dismissed the charge, which convicted the airman of
disrespect to a superior officer. The officer in the case abandons his status
as an officer acting in the execution of his office. The execution of office is
described in Article 90 of the Unif. Code. Mil. Justice:
1(b)An officer is
in the execution of office when engaged in any act or service required or
authorized by treaty, statute, regulation, the order of a superior, or military
usage. The commanding officer on board a ship or the commanding officer of a
unit in the field is generally considered to be on duty at all times.
Reasoning:
The court
concluded that the lieutenant did indeed divest of his duties while serving
alcohol to the appellant at a party in the officers club. The lieutenant did not take offense with the
appellants conduct nor did he testify against the appellant.
Decision:
The court
dismissed the charge which convicted the airman of disrespect to a superior
officer.
Comment:
There was one
dissenting opinion, Judge Latimer. In short, Judge Latimer disagreed that the
lieutenant divested his duties when he became a bartender for a party which
included enlisted men. Even with his
shirt removed the rank was present.
