To: Castor B. Plentibux, Esq.

From: Jack Starr, Paralegal

Re: Divestiture as a Special Defense

OFFICE RESEARCH MEMORANDUM

Statement of Assignment

On the 20th of August 2010, you tasked me with researching the topic of divestiture and wanted to
know if it can be used as a defense under the military offense of disrespect (Article #91, UCMJ). In our
conversation, you recalled a case – United States v. Diggs that you thought may have dealt with the
issue. In addition to this case, you suggested I take a look at an article written by Milhizer in the Army
Lawyer that discusses the issue of divestiture.

Issue

Can a defense of divestiture be used for the offense of disrespect against a noncommissioned officer?

Brief Answer

Yes. According to case law a defense of divestiture can be used for the offense of disrespect if the
elements of divestiture are met.

Statement of facts

The only information available to us at this time is that Sergeant Payne is being charged with
disrespect. Disrespect is a charge punishable under Article #91, of the Uniform Code of Military Justice
(UCMJ). The accusation against Sergeant Payne state that he committed the offense of disrespect when
he yelled and cursed at his First Sergeant.

Analysis

Before I begin the analysis of this particular defense I would like to briefly explain the significance of
the rank structure in the military. Milhizer describes the military rank structure “…is a distinctly
hierarchical society.”1 He further elaborates that there is a special status afforded to commissioned and
noncommissioned officers in the execution of their duties, and how this status is protected and
reinforced in part by the UCMJ. It is this special status that is the essence of the divestiture defense.

The courts primary consideration of divestiture as a defense requires that it focuses on the status and
behavior of the victim, and whether such victim detracted substantially from the standards of his rank
and position. The victims conduct must also be related to the accused. The circumstances surrounding
the alleged misconduct must also be viewed in the entire context of the incident.

It is very important to remember that the use of divestiture as a defense does not make the accused
innocent of the charges. In using this defense the accused does not contest the alleged misconduct, but
1
 See Major Eugene R. Milhizer, The Divestiture Defense and United States v. Collier, 1990 Army Law 3, March 1990. The 
Author describes the military rank structure as a distinctly hierarchical society and a pervasive aspect of military life. 
rather, attempts to either justify, excuse or exculpate the alleged misconduct. With respect to
divestiture in this case, we will assume that the First Sergeant’s behavior deviated at some point from
the standard of conduct by which his rank and position are protected under Article #91, UCMJ.

Rule of Law

Article #91, UCMJ, Insubordinate conduct toward warrant officer, noncommissioned officer or petty
officer

( 3 ) Treating with contempt or being disrespectful in language or deportment toward a warrant,

noncommissioned, or petty officer.

( a ) Accused was a warrant officer or enlisted member;

( b ) Accused did or omitted certain acts, or used certain language;
( c ) Such behavior or language was used toward and within sight or hearing of a certain warrant,
noncommissioned, or petty officer;
( d ) Accused then knew that the person toward whom the behavior or language was directed was a
warrant, noncommissioned, or petty officer;
( e ) Victim was then in the execution of office; and
( f ) Under the circumstances the accused, by such behavior or language, treated with contempt or was
disrespectful to said warrant, noncommissioned, or petty officer.

Case Law

United States v. Noriega, 7 U.S.C.M.A. 196 (1956); 1956 CMA LEXIS 244; 21 C.M.R. 322; the victim
in this case was a Lieutenant acting as a bartender at a party. He continued to serve alcohol to a basic
Airman who was already acting aggressive and threatening. When the airman displayed an aggressive
posture at the lieutenant, the officer walked away apparently feeling disrespected. Later the officer
charged the airman with disrespect. The Court reversed this conviction because it found that the
accused actions and words did not detract from the authority of the Lieutenant who was not acting in
any official capacity.

United States v. Middleton, 36 M.J. 835 (1993), 1993 CMR Lexis 40; states: “The divestiture defense
provides than an accused may not be convicted or punished more severely for assaulting or insulting an
individual of superior rank or status where the victim behaved in a manner toward the accused such as
to lose the protection of the superior rank or status.”

United States v. Diggs, 52 M.J. 251 (2000), 2000 CAAF LEXIS 195; this court explained that
divestiture only occurs when the actor holds authority by virtue of rank and position and divests
himself of that authority by improper conduct.

Counter-analysis

An issue that may be brought up by the defense is the issue of Provoking Speeches and Gestures under
Article #117, UCMJ. It is possible that either the court may lessen the charge to provoking speeches
and gestures, or the government may move to that charge in order to avoid a divestiture defense.
There is no case law under provoking speeches and gestures where the accused has used a divestiture
defense.

Article # 117, UCMJ, Provoking speeches and gestures

( 1 ) Accused wrongfully used words or gestures toward a certain person;
( 2 ) Words or Gestures used were provoking or reproachful; and
( 3 ) Person toward whom the words or gestures were used was a person subject to the code.

United States v. Davis, 34 M.J. 849; 1992 CMR LEXIS 244. In this case Sergeant Melendez, acting in
the official capacity as a Military Police officer was not provoked by the appellant's language because
his training taught him to remain calm when faced with confrontation. In regards to this case, the First
Sergeant is not trained as a military police man to remain calm in the face of great provocation.
Another point to consider is that because of his rank and position a First Sergeant is typically not
accustomed to disrespect or disobedience by subordinates.

Conclusion

An inquiry into the events preceding the alleged misconduct must be established to determine whether
the First Sergeant deviated from the standards afforded under his rank and position. If it is found that
prior to the alleged misconduct that the First Sergeant did substantially deviate from these standards,
then it is possible that a divestiture defense can be used. The courts will look at the entire context of the
incident to make a determination of allowing a divestiture defense. If a divestiture defense is used for
this case, Sergeant Payne must understand that he is not contesting to the alleged misconduct, only
justifying it. He may have to agree upon a lesser charge that may still affect his career. A search for
credible witnesses that can testify to the events in this case is going to be essential in convincing the
courts of the merits of divestiture. The defense may also counter with a lesser charge of Provoking
Speeches and Gestures under Article # 117, UCMJ, of which a divestiture defense may not be applied.
There is no case law that has dealt with this issue because provoking speeches and gestures deals with
inciting an emotion upon another individual by the use words that produce mild anger. An individual
does not have to be in the execution of his duties to file a charge under this offense. I believe the main
priority at this time is obtaining all information related to the incident and finding credible witnesses
that are willing to testify. Without this information we cannot know for certain whether we can use a
divesture defense.
 Law Office of Plentibux & Moore
2100 Main Street
Tulsa, OK 74429
(405) 234-4567 * Fax 234-6789 * www.Plentimoorelaw.com

August 25, 2010

Via Facsimile and U.S. Mail

Mr. Fred Payne
5501 Maplewood Drive
Oklahoma City, OK 73179

Re: Disrespect and Divestiture Defense

Dear Mr. Payne

On the 17th of August 2010, you contacted our office requesting assistance on a matter in which you
informed me that your son was involved in a verbal altercation with his First Sergeant that resulted in
your son being charged with disrespect. We discussed the possibility of a divestiture defense that can
possibly be applied to this case. The opinion of this letter is based on law listed in the facts section
below. Be advised that this letter is limited to the facts discussed below.

Facts

The only facts available to us at this time is that your son Ima Payne is a Sergeant with the United
States Army Infantry and that at some unspecified date and time, he was involved in a verbal
altercation with his First Sergeant. As a result of this incident your son is being charged for the offense
of disrespect for yelling and cursing at his superior noncommissioned officer. Without further
information regarding the incident we cannot determine with certainty whether a divestiture defense
can be applied to this charge.

Answer

Based upon the above facts and applicable law, cursing and yelling at a superior noncommissioned
officer is an offense punishable under Article #91 of the Uniform Code of Military Justice. A divestiture
defense may be applied but it must meet certain requirements for the courts to consider it.
The answer to a divestiture defense lies in the actions of the First Sergeant prior to your son yelling and
cursing at him. If the First Sergeant acted in a way that detracted from the standard of conduct which
he is otherwise protected under rank and position, then it is possible that a divestiture defense can be
applied to this case. In other words, did the First Sergeant act in a manner that would be considered
substantially out of character or inappropriate for someone of his rank and position? This is the
question that must be answered for the courts will consider the status of the victim, the circumstances
surrounding the alleged misconduct, and the victim's relationship to the accused.
Explanation

Article #91, UCMJ, Insubordinate conduct toward warrant officer, noncommissioned officer or petty
officer

( 3 ) Treating with contempt or being disrespectful in language or deportment toward a warrant,

noncommissioned, or petty officer.
( a ) Accused was a warrant officer or enlisted member;
( b ) Accused did or omitted certain acts, or used certain language;
( c ) Such behavior or language was used toward and within sight or hearing of a certain warrant,
noncommissioned, or petty officer;
( d ) Accused then knew that the person toward whom the behavior or language was directed was a
warrant, noncommissioned, or petty officer;
( e ) Victim was then in the execution of office; and
( f ) Under the circumstances the accused, by such behavior or language, treated with contempt or was
disrespectful to said warrant, noncommissioned, or petty officer.

According to the above listed article, cursing and yelling at a noncommissioned officer is considered
being disrespectful in language. It is yet to be determined based upon the facts if the First Sergeant was
in the execution of his duties when the incident occurred. Another thing to consider is that if your son
pursues a divestiture defense he not contesting the alleged offense, but only justifying it, which may
lead the court to rule on a lesser offense.

Previous cases have touched on the issues of divestiture. In the case of United States v. Noriega, the
courts reversed a decision of disrespect when a Lieutenant was disrespected by an airman. The court
decided that the officer was not acting in the execution of his duties and that the airman's disrespect did
not detract from his authority. In United States v. Middleton, it ruled that the accused may not be
punished for insulting an individual of superior rank when the victim behaved in a manner which
induced the loss of protection afforded under his rank and status. In another recent case, United States
v. Diggs, the courts determined that divestiture only occurs when an individual divests himself of the
his superior authority by improper conduct. Bases on these case laws, it is crucial that we determine the
facts in the whole context of the incident to determine whether we can apply the divesture defense to
this case. In summary, based on Article #91 of the Uniform Code of Military Justice, your son can be
charged for disrespect. It is my opinion that if we can prove that the First Sergeant acted in a manner
that substantially detracted from his protected status as a noncommissioned officer then we can apply
the divestiture defense to this case.

I hope this information answers your questions. We are optimistic that with more information we can
make a solid determination on the direction of this case. Should you decide to pursue this case we will
be ready to represent your son.

Sincerely,

Castor B. Plentibux
Attorney at Law
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