Part B - The Elements of the Common Military Offenses Under the UCMJ

etc.

These may both confer certain powers, and limit others.

There are

regulations governing such things as the use of deadly force (AR 190-14) and the

power to search, seize, and apprehend (AR 190-22).

e. Post regulations.

In addition to service-level regulations, there are

also installation-level regulations. These, too, have the force and effect of law.

QUESTION:

WHAT IF AN ARMY REGULATION OR A POST REGULATION CONFERS UPON AN ACCUSED

A RIGHT THAT IS GREATER THAN WHAT THE CONSTITUTION GIVES HIM?

ANSWER:

THE CONSTITUTION CREATES MINIMUM RIGHTS. WE CAN GIVE THE ACCUSED NO LESS.

THERE IS NOTHING TO STOP US, HOWEVER, FROM GIVING HIM MORE.

IT IS,

THEREFORE, NECESSARY TO BE CAREFUL WHEN DRAFTING POST REGULATIONS. WE MAY

INADVERTENTLY GIVE THE ACCUSED A PROCEDURAL RIGHT THAT THE COURTS WILL

ENFORCE, AND THAT WE MAY NOT HAVE MEANT TO CONFER.

QUESTION:

WHAT IF THE SOURCES OF AUTHORITY DIRECTLY CONFLICT WITH ONE ANOTHER IN

TERMS OF WHAT THE MINIMUM PROTECTIONS ARE?

ANSWER:

IF THERE IS A CONFLICT, THE HIGHER SOURCE WILL GOVERN.

A REGULATION

CANNOT OVERRIDE AN ACT OF CONGRESS, AND THE ACT OF CONGRESS CANNOT

OVERRIDE THE U.S. CONSTITUTION. THE U.S. CONSTITUTION, REMEMBER, IS OUR

SUPREME LAW.

UNDER THE SUPREMACY CLAUSE OF THE CONSTITUTION, IT WILL

PREVAIL OVER ALL LOWER LAWS THAT INTERFERE WITH ITs PROVISIONS.

SIMILARLY, A STATE LAW CANNOT INTERFERE WITH A FEDERAL FUNCTION FOR THE

SAME REASON.

SOPs.

An individual PMO office may have various SOPs which deal with

such things as the use of firearms, the procedure involved in making an

apprehension, the conduct of juvenile investigations, including procedures for

interrogating a juvenile suspect, procedures for conducting a DWI checkpoint, etc.

Custom.

This is another source of authority.

As an example, under

Article 92, UCMJ, one may be court-martialed for his "dereliction in the

performance of duties."

Such a duty "may be imposed by treaty, statute,

regulation, lawful order, standing operating procedure, or custom of the service."

(MCM, paragraph 16(c)(3)(a).)

Part B - THE ELEMENTS OF THE COMMON MILITARY OFFENSES UNDER THE UCMJ

General. One way in which the law recognized the authority of certain

individuals is reflected in their protected status. Offenses against these

people are made specific criminal offenses. These are sometimes referred to

as "military offenses."

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