Watada faces three separate charges

FORT LEWIS, Wash. (Army News Service, July 10, 2006) – Charges were preferred July 6 against 1st Lt. Ehren Watada of 3rd Brigade, 2nd Infantry Division, for his refusal June 22 to accompany his unit to Iraq and for actions related to that refusal. The charges arose from an initial investigation conducted in the two weeks since the incident.

According to Fort Lewis officials, Watada faces charges for three separate violations: missing movement, contempt toward officials and conduct unbecoming an officer.

If found guilty on all charges, Watada faces a maximum sentence of seven years in prison, forfeiture of all pay and allowances, and a dishonorable discharge.

Fort Lewis officials emphasized that the charges resulted from an initial investigation.

“The next step in the military-justice process,” according to a two-page Fort Lewis press release, “is an Article 32, Uniformed Code of Military Justice, pre-trial investigation ... hearing.”

The Article 32 process will determine whether sufficient grounds exist to warrant a court-martial. It can also delete charges, or add new ones if the investigation finds cause.

Watada reported for duty June 22 but stayed in the 5th Battalion, 20th Infantry Regiment, headquarters while 3rd Bde. Soldiers boarded buses to McChord Air Force Base for their trip to the Middle East. He refused a final offer by his chain of command to reconsider, comply with movement orders and deploy with the brigade.

“He stuck to his decision not to deploy,” said Tammy Reed, I Corps Public Affairs Office spokesperson.

Watada missed the 3 a.m. weapons draw and a 5-20 Inf. formation at 5 a.m., though he had arrived for duty before the formation. He remained in the battalion headquarters building while the rest of his unit made final preparations for movement. The bus departed at 6:45 a.m. and the plane lifted off without him at 10 a.m.

Following Watada’s refusal to comply with an order to deploy with his unit, his chain of command made an administrative decision to limit his pass privileges. Those restrictions were lifted last week, however, and officials said the lieutenant is now free to travel off post.

Antiwar supporters have claimed Watada is the first U.S. Army officer to refuse to serve in Operation Iraqi Freedom. However, Department of the Army spokesman Paul Boyce said last month that Watada “is not the first officer, not the first enlisted, nor the first Soldier” to refuse deployment to Iraq.

By not complying with movement orders, the lieutenant carried out a threat he made June 7 during a press conference held in Tacoma. On that day, he announced that he intended to refuse to deploy with his unit.

A number of online political Web sites sympathetic to Watada’s actions have quoted allegations by his attorney, Eric Seitz, that the Army has attempted “to keep him from speaking out against the war.”

I Corps spokesman Joe Piek said that in addition to his June 7 press conference, Watada “has conducted numerous media interviews and has appeared at multiple public forums. The Army is not hindering or usurping his right to free speech, Piek said.

“However, service members take an oath to support and defend our Constitution,” he said, “which creates a special responsibility to ensure their speech is consistent with good order and discipline.”

Watada joined the Army in March 2003, the month U.S. military and coalition forces deposed Saddam Hussein and his Baathist regime.

(Editor’s note: Don Kramer writes for the Northwest Guardian at Fort Lewis, Wash.)

From the 2002 UCMJ

Article 87-Missing movement

a. Text.

"Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct."

b. Elements.

(1) That the accused was required in the course of duty to move with a ship, aircraft or unit;

(2) That the accused knew of the prospective movement of the ship, aircraft or unit;

(3) That the accused missed the movement of the ship, aircraft or unit; and

(4) That the accused missed the movement through design or neglect.

c. Explanation.

(1) Movement. "Movement" as used in Article 87 includes a move, transfer, or shift of a ship, aircraft, or unit involving a substantial distance and period of time. Whether a particular movement is substantial is a question to be determined by the court-martial considering all the circumstances. Changes which do not constitute a "movement" include practice marches of a short duration with a return to the point of departure, and minor changes in location of ships, aircraft, or units, as when a ship is shifted from one berth to another in the same shipyard or harbor or when a unit is moved from one barracks to another on the same post.

(2) Mode of movement.

(a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or walking. The word "unit" is not limited to any specific technical category such as those listed in a table of organization and equipment, but also includes units which are created before the movement with the intention that they have organizational continuity upon arrival at their destination regardless of their technical designation, and units intended to be disbanded upon arrival at their destination.

(b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is essential to establish the offense of missing movement.

(3) Design. "Design" means on purpose, intentionally, or according to plan and requires specific intent to miss the movement.

(4) Neglect. "Neglect" means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some act without giving attention to its probable consequences in connection with the prospective movement, such as a departure from the vicinity of the prospective movement to such a distance as would make it likely that one could not return in time for the movement.

(5) Actual knowledge. In order to be guilty of the offense, the accused must have actually known of the prospective movement that was missed. Knowledge of the exact hour or even of the exact date of the scheduled movement is not required. It is sufficient if the approximate date was known by the accused as long as there is a causal connection between the conduct of the accused and the missing of the scheduled movement. Knowledge may be proved by circumstantial evidence.

(6) Proof of absence. That the accused actually missed the movement may be proved by documentary evidence, as by a proper entry in a log or a morning report. This fact may also be proved by the testimony of personnel of the ship, aircraft, or unit (or by other evidence) that the movement occurred at a certain time, together with evidence that the accused was physically elsewhere at that time.

d. Lesser included offenses.

(1) Design.

(a) Article 87 - missing movement through neglect

(b) Article 86-absence without authority

(2) Neglect. Article 86 - absence without authority

e. Maximum punishment.

(1) Design. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(2) Neglect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Article 88-Contempt toward officials

a. Text.

"Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct."

b. Elements.

(1) That the accused was a commissioned officer of the United States armed forces;

(2) That the accused used certain words against an official or legislature named in the article;

(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and

(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.

[Note: If the words were against a Governor or legislature, add the following element]

(5) That the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned.

c. Explanation. The official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense. Neither "Congress" nor "legislature" includes its members individually. "Governor" does not include "lieutenant governor." It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of

contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.

d. Lesser included offense. Article 80-attempts

e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

Article 133-Conduct unbecoming an officer and gentleman

a. Text.

"Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."

b. Elements.

(1) That the accused did or omitted to do certain acts; and

(2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

c. Explanation.

(1) Gentleman. As used in this article, "gentleman" includes both male and female commissioned officers, cadets, and midshipmen.

(2) Nature of offense. Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person's standing as an officer, cadet, or midshipman or the person's character as a gentleman. This article prohibits conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances into consideration is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals property violates both this article and Article 121. Whenever the offense charged is the same as a specific

offense set forth in this Manual, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.

(3) Examples of offenses. Instances of violation of this article include knowingly making a false official statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer's presence or about that officer to other military persons;

being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer's family.

d. Lesser included offense. Article 80-attempts

e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for a period not in excess of that authorized for the most analogous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year.

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