U.S. v. Noriega

Brief background:  The Appellant was at a party where his superior was acting as a bar tender.  An altercation occurred between the officer and Noriega.  In the case at issue the Appellant was able to prove that the officer divested his duties.  I will be sharing another case soon that shares the same premise.  That being said, such cases are fraught with unknowns.   

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.