Can you refuse an order in the military? Yes, you can. Wait, wait. Don’t go do it yet. Let me break it down.
I’m Cody Harnish, UCMJ attorney. Let’s talk about what makes an order lawful, what makes it unlawful, and what happens if you get it wrong.
What Makes a Military Order Lawful?
First, in the military, you should know that orders are already presumed to be lawful in the first place. But when we break it down, a lawful order consists of these three things.
One, it’s given by someone authorized to give such an order.
Two, it’s communicated in words.
And three, most importantly, it must pertain to a military duty.
What Is an Unlawful Order?
What’s an unlawful order? Well, obvious examples if someone is ordering you to go commit a crime. Obviously not lawful.
What’s crazy is not only do you have the right to refuse an unlawful order, you have the duty to refuse an unlawful order. And you can get in trouble if you don’t refuse that unlawful order. Welcome to the UCMJ.
The Risk of Refusing an Order Under Article 92
That being said, refusing comes with its own risk. As the U.S. Court of Appeals for the Armed Forces explains, disobeying an order puts you at your own peril. Under Article 92 of the UCMJ, if you disobey an order that’s later deemed to in fact be lawful, you can face severe consequences, including jail time.
In U.S. v. Kisala, the court upheld the conviction of a Soldier who refused the anthrax vaccine. That Soldier claimed that the order was unlawful. The military court ruled that the Soldier had no legal basis to challenge the order, and emphasized that orders are presumed to be lawful unless proven otherwise.
If you believe an order is unlawful, you can challenge it when it is given or in court proceedings.
I’ll leave you with this. Many people who’ve gotten the Medal of Honor were acting against orders. I hope that didn’t confuse you even more.
Like, share, comment, or follow for more information on military law. And in the meantime, I’m going to keep defending America’s defenders.
