The Army Lawyer | Issue 2 2020View PDF

null Breaking Quarantine


The Army Lawyer


Breaking Quarantine


Using Article 84 to Combat COVID-19

 PDF Version

Anyone that thinks one person is incapable of changing the world has clearly never eaten an undercooked bat.1

Coronavirus Disease 2019 (COVID-19) is caused by the virus Severe Acute Respiratory Syndrome-Coronavirus-2 (SARS-CoV-2).2 This virus is highly contagious,3 with an estimated average incubation period of five days prior to symptoms,4 during which time it can still be transmitted.5 Within three months of its discovery in late 2019, the rapidly spreading SARS-CoV-2 reached global pandemic status.6 The current national strategy to combat COVID-19—“social distancing”—is designed to slow the spread of the virus and enable the medical community to treat the most severe cases without exceeding hospital capacity.7 The military is neither immune to this pandemic nor exempt from the efforts to combat its spread. Instead, it is currently working to strike a balance between operational readiness and restrictive personnel policies.8 While the ultimate impact of COVID-19 on military operations and service policies remains uncertain, one thing is clear: with an estimated 1.3 million active duty service members subject to some form of COVID-19 restrictions, the newly re-designated Article 84, Uniform Code of Military Justice (UCMJ) (Breach of Medical Quarantine), is about to be field tested.9

As the population of young men and women restricted to close quarters gets idle hands, the significant limitations placed on service members during this crisis will challenge good order and discipline in the ranks. In certain situations, commanders will need to rely on punitive action under the UCMJ to enforce good order and discipline. Staff Judge Advocates (SJAs), military justice practitioners, and policymakers must all have a solid understanding of Article 84, its limitations, and its charging alternatives. In the absence of significant military case precedent, and to the extent possible, this article seeks to provide guidance on charging Article 84 in order to support commanders and their legal advisors during this crisis.

Article 84

While the current pandemic is the result of a “novel” (or “new”) virus, military laws to help limit the spread of infectious diseases have existed for over a century. The Manual for Courts Martial (MCM) has recognized the conceptual distinction between punitive restriction and quarantines since 1917.10 Breach of Medical Quarantine was added to Article 134 in 1949.11 Despite the long existence of a quarantine offense in the UCMJ, military precedent is scarce; this supports the inference that charges under this article have been rare.12 Nevertheless, the Military Justice Act of 201613 migrated the offense of Breach of Medical Quarantine from a presidentially-prescribed Article 134 violation—that required the terminal element14—to its own punitive article—re-designated as Article 84.15 Congress enacted this change primarily because Breach of Medical Quarantine is a well-recognized concept in criminal law.16

Analysis of Article 84 in the context of the current pandemic will start from the following hypothetical model specification, broken down by element:

In that Private John R. Doe, having been placed in [1] medical quarantine by a [2] person authorized to order the accused into medical quarantine, for a [3] quarantinable communicable disease as defined by C.F.R. § 70.1, to wit: COVID-19, [4] having knowledge of the quarantine and the limits of the quarantine, did, at or near Marine Corps Base Hawaii, on or about 1 April 2020, [5] break said medical quarantine.17

Medical Quarantine

While the term “medical quarantine” is indispensable to Article 84, Congress did not define the term “quarantine” in the statute, nor has the president defined it within the language of the MCM. Black’s Law Dictionary defines quarantine as “[t]he isolation of a person or animal afflicted with a communicable disease or the prevention of such a person or animal from coming into a particular area, the purpose being to prevent the spread of disease.”18 This definition is problematic because it requires the person to have already been afflicted by the disease. The U.S. Code uses a slightly broader definition: “apprehension and examination of any individual believed to be infected with a communicable disease. . . .”19 The Code of Federal Regulations (C.F.R.) uses a more expansive definition of quarantine: “the separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who are not yet ill, from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease.”20

The Department of Defense (DoD) has adopted the C.F.R. definition in the context of public health emergency management;21 accordingly, this article will utilize the C.F.R./DoD definition. In the context of Article 84, the definition of “quarantine” implies that an individual must have at least been exposed (or that the commander had a reasonable basis for believing the service member was exposed) to COVID-19.

Consequently, most military orders and policies that broadly restrict service members’ movement to mitigate the spread of COVID-19 will not meet this definition, limiting the applicability of Article 84. As a result, violations of orders and policies that do not meet the requirements for a quarantine may still be cognizable under Article 87b (Breach of Administrative Restriction), Article 92(1) (Failure to Obey a Lawful General Order or Regulation), or Article 92(3) (Dereliction of Duty). On the other hand, an order that specifically articulates that it is for medical quarantine, provides instructions regarding the parameters of the quarantine, and identifies the individuals subject to the quarantine would be cognizable under Article 84.22

Person Authorized

There are two classes of individuals authorized to issue quarantine orders. The first class consists of installation commanders authorized to issue a mass medical quarantine order under emergency health powers granted to them in DoD Instruction (DoDI) 6200.03, Public Health Emergency Management.23 The second class consists of those authorized to issue an “other lawful order” under Article 92.24 The scarce precedent available regarding military quarantines implies that a quarantine is simply an order directing one or more service members to administrative restriction for a specific purpose, putting it in line with administrative restraint under Rule for Courts-Martial (RCM) 304(h).25 Therefore, in order to determine who may impose an administrative restraint on a service member, we also look to Article 92.26

Class 1: Installation Commanders

Department of Defense Instruction 6200.03 addresses large-scale public health emergency situations.27 Under this instruction, authority to declare a public health emergency—which can include installation-wide restrictions of movement (ROM) and the authority to coordinate with state, local, tribal, and territorial (SLTT) governments—rests with the installation commander as defined by DoDI 5200.08.28 Under DoDI 6200.03, the military installation commander is the single decision-maker with regard to blanket force-protection actions applicable to service members on an installation during a pandemic.29 There is no requirement for the installation commander to work in conjunction with the SLTT governments, as an installation commander can make a public health emergency declaration absent an SLTT emergency declaration.30 State and local policies, laws, and rules are not applicable on the installation unless ratified or incorporated by the installation commander.31

One of the enumerated emergency health powers of an installation commander is aROM order, which is an order that limits service members’ personal liberty to ensure the public’s health, safety, and welfare.32 There are five general types of ROM that can be ordered, based on the type of health emergency, as well as the installation commander’s assessment of impacts on the command and mission: (1) orders to restrict travel, (2) orders to restrict certain activities, (3) orders for medical quarantine,33 (4) administrative restrictions to a specific location, and (5) orders to remain together with a unit.34

It is important to note that violations of Article 84 may be charged in response to a mass quarantine issued by an installation commander as part of a declared public health emergency.35 But, while an installation commander may have the ability to order an enforceable mass quarantine under the instruction, to be punishable under Article 84, the action must be taken to separate individuals exposed or reasonably believed to have been exposed to the contagion from those that have not been exposed.36 As discussed earlier, broad ROM orders or policies (such as “social distancing”) do not meet this requirement.37

Class 2: Individuals Authorized Under Article 9238

Rule for Courts-Martial 103(5) defines a commander as “a commissioned officer in command or an officer in charge.”39 Under both DoDI 6200.03 and the RCM,40 a commander can issue a quarantine order. While DoDI 6200.03 gives an installation commander plenary power to make public health emergency declarations, the instruction does not restrict the ability of lower-level commanders to issue medical quarantine orders or ROMs for service members in their command.41 In addition to commanders, Article 92 provides authority to superiors and certain individuals who hold billet authority to issue orders.42 For example, a medical provider holds the billet authority to issue a medical quarantine order even if the individual receiving the order outranks the medical provider.43 Article 92 also authorizes anyone senior to an individual to issue a quarantine order.44

As a best practice, a commander should issue a quarantine order on the advice of a medical provider, in consultation with a judge advocate. The technical requirements to establish a medical quarantine are complex, and failure to meet them may necessitate use of the lesser charge of Article 87b (Breach of Administrative Restriction). Accordingly, any individual who believes a quarantine is warranted should immediately seek an order from the commander. In the context of the exigent circumstances presented by a potential COVID-19 case, a temporary administrative restraint should provide enough time to obtain a properly instituted and vetted quarantine order from a commander.45

Quarantinable Communicable Disease

“Quarantinable communicable disease” means any of the communicable diseases incorporated under §361 of the Public Health Service Act by an Executive Order.46 Thus, COVID-19 falls under “severe acute respiratory syndrome” as specified in Executive Order 1329 of 4 April 2003, and amended by Executive Orders 13375 of 1 April 2005 and Executive Order 13674 of 31 July 2014.47

Knowledge of the Quarantine and the Limits of the Quarantine

An accused must have knowledge of the medical quarantine order and the limits of that order to violate Article 84.48 In United States v. Dixon, the Navy-Marine Corps Court of Criminal Appeals held that an ex post facto understanding of specified restriction limits was insufficient to demonstrate guilt vis-a-vis restriction breaking.49 Additionally, the accused must understand that the restriction is for quarantine and not some other purpose.

An installation commander with general court-martial convening authority (GCMCA) has the authority to issue a general order.50 Since DoDI 6200.03 requires an installation commander or higher to declare a public health emergency,51 it is a general order so long as the installation commander has been designated a GCMCA;52 the knowledge of which is imputed to service members.53 Additionally, DoDI 6200.03 requires the widest possible distribution of any public health emergency declaration.54 Therefore, if an installation commander with GCMCA declares a public health emergency that contains a properly articulated quarantine order under DoDI 6200.03, such an order would be a lawful general order. Knowledge of that order and the restrictions therein will be imputed to any service member subject to that order; note however that if the facts require imputing knowledge of the charge, the proper article is 92(1), not 84. If the installation commander does not have GCMCA, then the government must prove actual knowledge of the quarantine order and its restrictions or allege dereliction of duty under Article 92(3).55

Goes Beyond the Limits of the Quarantine

Breaking the specified geographic and contact limitations of a valid quarantine order without justification or excuse would clearly constitute a violation of Article 84. However, current COVID-19 mitigation measures (e.g., face masks, shelter-in-place orders, liberty restrictions, etc.) are more complex than black-and-white geographic and social restrictions. Commanders should narrowly tailor medical quarantine orders to specific limitations designed to mitigate health risks while also clearly communicating those limitations to quarantined service members.56 At a minimum, a medical quarantine order should be in writing and state that the purpose is for medical quarantine.57 The quarantine order should include instructions such as: conditions for the termination or modification of the order; the place or area of the quarantine; any specific rules for the quarantine; precautions to prevent the spread of the subject disease; requirements for contact with non-quarantined individuals; disposal of personal property; and, procedures to request temporary release from quarantine to conduct essential professional or personal tasks.58 As DoDI 6200.3 makes clear, “the needs of persons quarantined or isolated should be addressed in a systematic and competent fashion.”59 A medical quarantine order should therefore take a comprehensive and holistic approach to the welfare of the service member ordered to quarantine.

Charging Considerations

Drafting and preferral of charges is one of the most consequential parts of any case. As a notice-pleading jurisdiction, the government must place the accused on notice of what he or she must defend against.60 Additionally, under RCM 603, “major changes” cannot be made to the charges after the referral of charges.61 As a result, it is vital to consider and, where appropriate, charge, all viable charging options.

The prudent course of action is to draft specifications for all reasonable contingencies of proof based on the facts presented. Since violations of ROM orders related to COVID-19 (whether medical quarantine orders or other lesser restrictions) necessarily involve orders, a cluster of charging contingencies emerges: (1) Article 90 (Willfully Disobeying Superior Commissioned Officer); (2) Article 92(1) (Violation of a Lawful General Order); (3) Article 92(2) (Violation of an Other Lawful Order); and (4) Article 92(3) (Dereliction of Duty). Because Article 87b (Breach of Restriction) is a lesser included offense of Article 84, it need not be separately charged as a contingency of proof where Article 84 is charged.62

Article 87b (Breach of Restriction)63

“Restriction” is the moral restraint of a person imposed by an order directing a person to remain within certain specified limits.64 Restriction may be imposed in the interest of “training, operations, security, or safety.”65 Violations of quarantine orders that do not satisfy Article 84’s requirements may be charged under this article, as well as violations of other restriction-related ROM orders. However, the maximum authorized confinement for a specification under this charge is only one month.66

Article 90 (Willfully Disobeying Superior Commissioned Officer)67

In situations where a service member violates a quarantine order or other ROM issued by a superior commissioned officer, charging Article 90 may be warranted. This charge requires that the order be directed specifically to the subordinate; violations of regulations and standing orders cannot be charged under Article 90.68 Unlike Article 84, charging Article 90 does not carry the stringent requirements of establishing the existence of a valid quarantine; only that a service member willfully (i.e., intentionally) violated an order issued by a superior commissioned officer for a valid military purpose (e.g., maintaining the health, welfare, and morale of the command).69 Awareness of this potential charging theory is particularly important for commanders and SJAs to ensure that, to the extent possible, quarantine orders and other similar ROMs are issued directly by superior commissioned officers to their intended recipients.

Article 92(1) (Violation of or Failure to Obey a Lawful General Order)70

As stated earlier, DoDI 6200.03 gives installation commanders a great deal of authority to declare and respond to a public health emergency. In almost all the services, an installation commander will either be a flag or general officer or otherwise possess GCMCA, vesting them with authority to issue general orders. In situations where a service member violates or fails to obey a quarantine order or other ROM order issued by an installation commander with the authority to issue general orders, charging a violation of Article 92(1) eliminates the government’s requirement to prove the accused’s knowledge of order.71 Instead, practitioners should focus on ensuring that the contents of the order were published or otherwise disseminated,72 the signatory possessed the proper authority to sign the order, the order was in effect when the offense was committed, and the order was punitive in nature.73 Meeting these criteria ensures not only a strong charging position, but also a strong case for judicial notice of the order’s existence and contents.

Article 92(2) (Violation of or Failure to Obey Other Lawful Order)74

In many cases, a quarantine order does not come directly from the installation commander or medical professional to the service member; instead, it is relayed through the chain of command. In this situation, deviations in what was conveyed may cause reasonable doubt as to whether the accused was on notice that the order was for medical quarantine as required by Article 84. However, even if it cannot be proven that the accused knew the order was for medical quarantine, if the order, as relayed, contains a ROM that the service member later violates, the accused may be liable for violating a lawful order under Article 92(2). Here, practitioners should focus on establishing the accused’s knowledge of the order’s specific restrictions on liberty or movement, as well as the accused’s duty to obey the order based on the status of the person issuing it.

Article 92(3) (Dereliction in the Performance of Duties)75

While not the most powerful tool in the array of charging options, a specification alleging dereliction of duty under Article 92(3) has the broadest application in situations where proof may be lacking as to an order’s form, contents, or transmittal. Like Article 92(2), a charge of Article 92(3) remains solvent even in situations where a quarantine order is lacking in certain particulars (e.g., the service member was specifically placed in medical quarantine by a medical professional, commander, or other authorized person in response to a reasonable belief of exposure to a communicable disease). In addition, a dereliction charge may prevail even where actual knowledge of an order’s terms cannot be proven. All that the government is required to prove is that the accused had a duty, which he knew or should have known, and willfully or negligently failed to perform it. In the current COVID-19 crisis, establishing a service member’s duty to limit contact or proximity with others to avoid the risk of infection can be achieved through evidence of changes to work routines, standard operating procedures (e.g. morning formations), or changes to service customs (e.g., face coverings). Similarly, knowledge of this duty can be proven by circumstantial evidence such as base media, command briefs, and informational emails. A dereliction charge may serve as a reliable safety net for a charge of Article 84, 90, 92(1), or 92(2) that is found to be deficient.


The relative punishments authorized for the above offenses vary considerably. For example, the maximum authorized confinement for each (in ascending order) is one month for Article 87b; six months for Articles 84, 92(2), and 92(3); twelve months for Article 84 (for a listed communicable disease); twenty-four months for Article 92(1) and 92(3) resulting in death; and sixty months for Article 90.77 In terms of discharge, where the authorized confinement is less than six months, no discharge is authorized; where authorized confinement ranges from six to twenty-four months, a bad-conduct discharge is authorized; and where the authorized confinement is twenty-four or more months, a dishonorable discharge is authorized.78

Even with these authorized punishments, the punitive landscape for the various charges relating to breaching medical quarantine is not as flexible as it may appear. Despite the availability of numerous charging alternatives to Article 84 in the cluster of orders violation offenses, these options also come with hard limits on sentencing exposure based on the “ultimate offense doctrine,” as set forth in United States v. Bratcher.79

The ultimate offense doctrine prohibits escalating the punitive severity of minor offenses by charging them as an orders violation or willful disobedience of a superior.80 Put differently, a commander cannot charge a service member with a violation of Article 90 or 92 simply to increase the maximum punishment for the underlying violation. While the maximum punishments set out in MCM, part IV, section 18.e. include a dishonorable discharge and confinement for two years for violation of a general order, and a bad-conduct discharge and confinement for six months for disobedience of other lawful orders,81 under the ultimate offense doctrine, these punishments are not applicable when the accused could otherwise be convicted of another specific offense for which a lesser punishment is prescribed or when the violation is for a breach of restraint imposed as a result of an order.82 Therefore, while charging Article 90 or 92 for a breach of medical quarantine-type offense will dictate what elements must be proven, the punishment will be limited to the maximum punishment for a breach of medical quarantine—the ultimate offense.83

As a result, it may be more practical to charge Article 92(1) when the government may have difficulty in meeting its burden to prove knowledge of a quarantine order; however, the punishment will not exceed that authorized by Article 84 under the same facts. Similarly—if the government does not admit evidence that COVID-19 is a communicable disease under the C.F.R., Public Health Services Act (PHSA), and applicable executive orders—Article 92(2) will subject the accused to the same punishment as a violation of Article 84 without the fifth element. Since COVID-19 is incorporated via the C.F.R., PHSA, and applicable executive orders, Article 92(2) will expose the accused to six months’ less punishment than Article 84 with the fifth element. The punitive exposure for a charge of Article 90 would also likely be limited by the ultimate offense doctrine, since the gravamen of the offense is a breach of restraint imposed by an order.

Unlike Articles 90, 92(1), and 92(2), Article 92(3) is not subject to the ultimate offense doctrine.84 There may be circumstances where a charge of Article 92(3) (Willful Dereliction of Duty) or Article 92(3) (Willful Dereliction of Duty Resulting in Death) is appropriate, given the fact pattern surrounding a breach of medical quarantine. The punitive landscape would not be appreciably different for a willful dereliction; however, a willful dereliction resulting in death carries two years of punitive exposure. Except for Article 92(3), prosecutors charging Article 90 or 92 should be aware of the risk that presentencing litigation may limit the maximum punishment to that authorized by Article 84 under the same facts.85

Other Charging Considerations

Lesser Included Offenses

Article 79 defines a lesser included offense (LIO) in two ways: (1) an offense that is necessarily included in the offense charged, and (2) any LIO so designated by regulation prescribed by the president.86 The president promulgates LIOs in accordance with the limitations established by Article 79(c).87 Pursuant to this statutory authority, the president established a list of LIOs via executive order in Appendix 12A of the MCM. In Executive Order 1382588 the president established Article 87b (Breach of Restriction) as a LIO that is “reasonably included” within Article 84.89 As a result, an accused is formally put on notice of an Article 87b violation upon service of an Article 84 charge. In practice, this provides practitioners with a safety net until Article 84 jurisprudence is more thoroughly vetted, especially with a rapidly changing legal landscape as public health officials and commanders distribute new and sometimes conflicting directives. While this “fog of war” may create hesitation to charge Article 84, practitioners can take solace in the fact that, even if the fact-finder believes a quarantine order was defective, there is still a second, well-settled, option available as an LIO.90 However, a guilty finding on this LIO forfeits significant punitive exposure, including months of confinement and a punitive discharge.91

Judicial Notice

Prosecutors must request that the military judge take judicial notice of all readily verifiable facts under MRE 201 and MRE 202. Judicial notice should include the substance of any applicable ROM orders, public health emergency declarations, guidelines, laws (foreign or domestic, depending on location), and executive orders. At a minimum, counsel should request the military judge take notice of 42 C.F.R. §70.1, §361 of the PHSA, and the applicable executive orders listing severe acute respiratory syndrome as a “quarantinable communicable disease.” Judicial notice is a simple step that ensures the government can meet its burden of proof on the fifth element of Article 84 and access the increased sentencing exposure for COVID-19-related breaches of quarantine.


The concept of preemption “prohibits application of Article 134 to conduct covered by Articles 80 to 132.”92 Put differently, where Congress has occupied the field for a given type of misconduct by addressing it in one of the enumerated punitive articles of the UCMJ, a like offense may not be created and punished under Article 134 by simply deleting a vital element.93 However, preemption is not automatically triggered simply because the offense charged under Article 134 embraces all but one element of an enumerated punitive article; it must also be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.94 Generally, the conduct related to violations of medical quarantine or other ROM orders is adequately addressed by the punitive articles discussed earlier. Therefore, use of Article 134 as a charging contingency in this context should be rare and based on highly specialized fact patterns, such as violations of foreign or state orders restricting movement.


The following scenarios illustrate the above concepts as applied to possible situations raised by the military’s efforts to combat COVID-19. For each scenario, assume COVID-19 is a quarantinable communicable disease as defined under 42 C.F.R. 70.1.

Social Distancing Fail

The Governor of New York declares a state of emergency in response to COVID-19. In coordination with the State of New York, the commander of Fort Hamilton in Brooklyna GCMCA—declares a public health emergency. Reasonably believing that base personnel had been exposed to COVID-19, he issues a medical quarantine order preventing Fort Hamilton Soldiers from leaving Brooklyn. The order is sent to the tenant commands, labeled “for widest dissemination possible,” and posted to the installation’s public Facebook page. Sergeant First Class (SFC) I. M. Contagious completed COVID-19 mitigation training that included a complete copy of the order. Several days after the order was issued, SFC Contagious was seen pier side in the crowd welcoming the U.S. Naval Ship Comfort to Manhattan and providing an interview with a local news station.

The above scenario supports a charge of Article 84. Key to the analysis is the installation commander’s declaration of a public health emergency, his issuing a specific medical quarantine order that was widely disseminated (including to SFC Contagious), and the breach of the medical quarantine by SFC Contagious. It is also important to note that it is not a requirement that SFC Contagious is infected or presenting as symptomatic, only that the commander reasonably believed SFC Contagious was exposed to a communicable disease. To the extent evidence of the accused’s actual knowledge of the quarantine order is lacking (e.g., buried in hundreds of pages of training material), trial counsel should also consider charging Article 92(1) as a contingency of proof since the quarantine order was issued by a GCMCA.

Rights Infringement?

The State of Pennsylvania has issued a shelter-in-place order for all non-essential personnel. In response, the commandant of Carlisle Barracks (the installation commander)95 issues a ROM order in conjunction with a public health emergency declaration, applicable to all students and personnel, which was posted on the school’s website. While the installation commander does not have a reason to believe any students or personnel had been exposed to COVID-19, the ROM order nonetheless restricts them to county limits and orders them to not leave their houses except for food and essential items. The order also contains punitive language. The students have been working from home, and the school’s internet portal banner has been changed to include a copy of the ROM order. A student, Lieutenant Colonel (LTC) W.K. Holic, without seeking authorization from his command, drives to New Jersey to pick up his children in accordance with his joint custody agreement. When he arrives at the state border, New Jersey police execute a traffic stop due to LTC Holic’s Pennsylvania license plates, take him into custody when he blows a .10 on a breathalyzer, and notify his command.

This scenario presents a wrinkle—a potential justification or excuse for violating the ROM order in the form of the joint custody agreement. However, the presence of this wrinkle does not impact the charging scheme. Article 84 would not be an appropriate charge, since the ROM order does not meet the criteria of a medical quarantine due to the absence of a reasonable belief that the individuals subject to the order were exposed to the disease. Nevertheless, LTC Holic violated a lawful general order by leaving the county for a non-essential reason without first seeking authorization. Since the purposes served by the administrative restriction or condition on liberty must be reasonably related to a legitimate governmental interest,96 which includes protecting the safety of the unit,97 LTC Holic’s child custody agreement does not override the otherwise lawful order.98 Accordingly, Article 92(1) (Violation of a Lawful General Order), Article 113 (Drunken Operation of a Vehicle), and Article 133 (Conduct Unbecoming an Officer) are appropriate charges to consider in this scenario.

Surf’s Up

The commanding officer of Marine Corps Base Hawaii (MCBH) does not declare a public health emergency in response to COVID-19. He does, however, issue a ROM order restricting all personnel to base or residence except to obtain food and essential items. The order also articulates that no sponsored guests are permitted aboard MCBH. The order is not explicitly punitive. Corporal (Cpl) C.W. Bunga is present at a safety brief where his battalion commander relays the ROM order, but the commander mistakenly refers to the guidance as a “quarantine” without a reasonable belief that any members of his command had been exposed to COVID-19. Three days later, Cpl Bunga has a surfing accident on an off-base reef that requires medical attention and three days of convalescent leave. A subsequent line of duty investigation finds that the injuries occurred while he was surfing with his high-school best friend who had flown in the day prior and was staying in Cpl Bunga’s on-base residence.

This scenario illustrates the fluidity of the military’s response to the COVID-19 situation as it evolves. Installation commanders issue, update, and relax specific guidance based on the conditions on and in the vicinity of their installations. This practice ensures ROM orders are only as restrictive as necessary based on the conditions, while still enabling tenant commanders to hold ROM violators accountable. In Cpl Bunga’s case, an Article 84 charge is not supported by the facts, since a quarantine order was not actually issued. Article 92(1) and 92(2) charges, while permissible, are subject to the ultimate offense doctrine since the gravamen of the orders violation is restriction breaking. Article 87b and 92(3) charges are therefore best suited to capture Cpl Bunga’s misconduct under these facts.

This scenario is meant to reinforce the importance of closely scrutinizing the source and content of multiple orders that may be issued by commanders in response to an evolving public health crisis. It is imperative for military justice practitioners to resist the temptation to view every restriction violation during a pandemic as a violation of a quarantine. Instead, practitioners should utilize the panoply of charging options in the MCM to ensure the charges are well-matched to the surrounding facts.

Skylined at the Post Exchange (PX)

The State of Alaska has not issued a stay-at-home order, and the Fort Wainwright installation commander has not declared a public health emergency. However, due to the “high morbidity epidemic” of COVID-19, the installation has instituted Health Protection Condition (HPCON) Charlie in accordance with DoDI 6200.03—including shelter-in-place policies and social distancing guidance.99 Specific local guidance restricts Soldiers to base, requires minimal manning of all workspaces, and limits PX shopping to food and essential items only; however, this guidance is not in the form of an order. First Lieutenant (1LT) B.O. Red’s commander spots 1LT Red at the PX arguing with the cashier who will not sell him a Playstation 4, nine bottles of wine, beer pong cups, ping pong balls, or chips and salsa. Additionally, 1LT Red flagrantly disregards social distancing guidance by loudly yelling expletives in the face of the PX cashier after the cashier reminds 1LT Red of the installation’s shelter-in-place and social distancing policies, which are posted at the register.

While these facts present a difficult charging landscape with respect to Articles 84, 87, 92(1), and 92(2), enough facts exist to enable accountability through a charge of Article 92(3) (Dereliction of Duty). Despite the absence of a clear order from the installation commander, , 1LT Red appears to be flouting guidance to limit purchases to “food and essential items” with the products he is attempting to purchase at the PX (in addition to not adhering to social distancing guidance). First Lieutenant Red’s verbal and physical response to the PX cashier also supports a charge of Article 133, conduct unbecoming an officer.


The practical impact of COVID-19 is without precedent and, unfortunately, so is Article 84. Amidst this practical and legal uncertainty, military justice advisors and practitioners must take care to understand the specific requirements and limitations of Article 84, which requires far more nuanced analysis than “pandemic-plus-restriction-equals-quarantine.”

When faced with a situation that may implicate Article 84, utilizing a deliberate process will yield optimal results. First, gather all the facts of the suspected violation. Second, define the operating environment (all applicable orders, directives, guidance, etc.). Third, balance the practical and legal equities in the specific case to determine the range of appropriate charges. Fourth, where possible, buttress charges in areas of relatively undeveloped law (e.g., Article 84) by charging in the alternative using more well-established charging theories (e.g., Article 92)—which will also safeguard charges against contingencies of proof at trial. Finally, determine the true sentencing exposure applicable to your charging scheme, which may differ from the maximum punishment listed based on the ultimate offense doctrine.

Commanders and legal advisors should utilize these considerations in order to issue effective and defensible orders for quarantine, ROM, and other similar restrictions. Carefully evaluating and charging quarantine-related offenses is one way judge advocates can help commanders use the UCMJ to accomplish its stated goals of preserving good order and discipline and, thereby, strengthening national security in the current crisis.100 TAL


Maj Nicholas Henry (Senior Trial Counsel), Maj Gregg Curley (Complex Trial Counsel), Capt Jeffery Amell (Trial Counsel), Capt Johnathan Turner (Trial Counsel), 1stLt Garret Adcock (Trial Counsel), GySgt James Marczika (Regional Trial Investigator), and SSgt Johnathan Starks are currently assigned to the Marine Corps Base Hawaii Trial Services Office. LtCol Alexander Douvas is currently assigned as an Associate Professor of Criminal Law at TJAGLCS.


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2. Naming the Coronavirus Disease (COVID-19) and the Virus That Causes It, WHO (last visited Mar. 28, 2020).

3. See Why Flattening the Curve is Overrated, (Mar. 23, 2020),—3Iu4ZHMyjDrgDd1y08ldDF0B3de686uxmLEvKVCKQ (There is an estimated reproduction rate of 2 to 2.5 infections per person.).

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5. How Coronavirus Spreads, Center for Disease Control,, (last visited Apr. 2, 2020).

6. Rolling Updates on Coronavirus Disease (COVID-19), WHO (Apr. 8, 2020),, (last updated Apr. 9, 2020).

7. Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, Center for Disease Control (Mar. 13, 2020),

8. See, e.g., Memorandum from Sec’y of Def. to Chief Mgmt. Off. of the Dep’t of Def. et al., subject: Travel Restrictions for DoD Components in Response to Coronavirus Disease 2019 (11 Mar. 2020) (on file with author); Marine Administrative (MARADMIN) Message, 150/20, 070130Z Mar 20, Deputy Commandant, Plans, Policies, and Operations, subject: Update #1: U.S. Marine Corps Disease Containment Preparedness Planning Guidance for 2019 Novel Coronavirus (COVID-19): Commanders’ Risk-Based Measured Responses; Memorandum from Off. of the Under Sec’y of Def. to Chief Mgmt. Off. of the Dept. of Def. et al., subject: Force Health Protections Guidance (Supp. 3)—Department of Defense Guidance for the Use of Personal Protective Equipment and Non-Pharmaceutical Interventions during the Coronavirus Disease 2019 Outbreak (10 Mar. 2020) (on file with author); Memorandum from Off. of the Under Sec’y of Def. to Chief Mgmt. Off. of the Dept. of Def. et al., subject: Force Health Protection Guidance (Supplement 4)—Department of Defense Guidance for Personnel Traveling During the Novel Coronavirus Outbreak (11 Mar. 2020) (on file with author); MARADMIN Message, 082/20, 112111Z Feb 20, Assistant Deputy Commandant, Plans, Policies and Operations (Security), subject: U.S. Marine Corps Disease Containment Preparedness Planning Guidance for 2019 Novel Coronavirus; Memorandum from Off. of the Under Sec’y of Def. to Chief Mgmt. Off. of the Dept. of Def. et al., subject: Force Health Protections Guidance (Supp. 2)—Department of Defense Guidance for Military Installation Commanders’ Risk-Based Measured Responses to the Novel Coronavirus Outbreak (25 Feb. 2020) (on file with author);U.S. Dep’t of Def., Instr. 6200.03, Public Health Emergency Management (PHEM) Within the DoD (28 Mar. 2019) [hereinafter DoDI 6200.03];U.S. Marine Corps, Order 6220.2, Disease Containment Planning Guidance (4 Dec. 2017); All Navy (ALNAV) Message, 025/20, 121914Z Mar. 20, Acting Secretary of the Navy, subject: Vector 15 Force Health Protection Guidance for Department of the Navy; MARADMIN Message, 162/20, 130130Z Mar 20, Deputy Commandant, Plans, Policies, and Operations, subject: Update #2: U.S Marine Corps Disease Containment Preparedness Planning Guidance for 2019 Novel Coronavirus (COVID-19), Travel Restrictions And Personnel Guidance For Travel (on file with author).

9. UCMJ art. 84 (2018).

10. See Manual for Courts-Martial, United States ch. XIII sec. VI (1917), (including President Woodrow Wilson’s Executive Order signed 15 Dec. 1916).

11. See Manual for Courts-Martial, United States, Table of Maximum Punishments ¶ 117c, sec. A (1949).

12. A LexisNexis search of the word “quarantine” under Military Courts conducted on 31 March 2020 produced sixteen cases that included the word and four cases that substantively addressed Breach of Medical Quarantine.

13. Off. Of the Judge Advocate General, Military Justice Act of 2016: Overview, (10 Jan. 2019), Military Justice Act of 2016 was passed as part of the National Defense Authorization Act of 2017. Id. See also National Defense Authorization Act for Fiscal year 2017, Pub. L. No. 114-328 § 5405, 130 Stat. 2000, 2940 (2016) (codified at 10 U.S.C. § 884 (2018)).

14. Military Justice Review Group, Military Justice Act of 2016: Section-by-Section Analysis, Judicial Proceedings Panel, sec. 1005, (last visited Apr. 6, 2020) [hereinafter Judicial Proceedings Panel] (explaining that the offense of breaking medical quarantine is a well-recognized concept in criminal law and therefore should not have to rely on the “terminal element” of Article 134).

15. UCMJ art. 134 (2018).

16. See Judicial Proceedings Panel, supra note 14.

17. Manual for Court-Martial, United States, pt. IV, ¶ 8.e (2019) [hereinafter MCM].

18. Quarantine, Black’s Law Dictionary (9th ed. 2009).

19. Regulations to Control Communicable Diseases, 42 U.S.C. § 264(d)(1) (2018).

20. General Definitions, 42 C.F.R. § 70.1 (2019).

21. DoDI 6200.03, supra note 8.

22. Refer to Appendix A for a ROM Order template.

23. DoDI 6200.03, supra note 8.

24. UCMJ art. 92 (2018).

25. MCM, supra note 17, R.C.M. 304(h).

26. UCMJ art. 92 (2018); MCM, supra note 17, app. 17 ¶ 8.

27. DoDI 6200.03, supra note 8.

28. Id. ¶ 1.2(b); U.S. Dep’t of Def., Instr 5200.08, Security of DoD Installations and Resources and the DoD Physical Security Review Board (PSRB) encl. 1 (10 Dec. 2005) [hereinafter DoDI 5200.08].

29. DoDI 6200.03, supra note 8, ¶ 1.2(b).

30. Id.

31. U.S. Navy Judge Advocate General’s Corps Criminal Law Division (Code 20 Sidebar), Covid-19 Pandemic, Restriction of Movement Orders (ROM) & Their Enforceability (Mar. 2020), [hereinafter Code 20 Sidebar.].

32. Id.

33. Refer to Appendix B for a medical quarantine order template.

34. Code 20 Sidebar, supra note 31.

35. DODI 6200.03, supra note 8, ¶ 3.1(e).

36. Id.; UCMJ art. 84 (2018).

37. UCMJ art. 84 (2018).

38. Id. art. 92.

39. MCM, supra note 17, R.C.M. 103(5).

40. Id. R.C.M. 103(5), 304(h).

41. DODI 6200.03, supra note 8.

42. UCMJ art. 92(2)(c) (2018).

43. Id. art. 84.

44. Id. art. 92(2)(c)(i).

45. MCM, supra note 17, R.C.M. 304(h).

46. 42 C.F.R. § 70.1 (2019).

47. Revised List of Quarantinable Communicable Diseases, Exec. Order No. 13295, 68 Fed. Reg. 17255 (Apr. 4, 2003); Amendment to Executive Order 13295 Relating to Certain Influenza Viruses and Quarantinable Communicable Diseases, Exec. Order No. 13375, 70 Fed. Reg. 17299 (Apr. 1, 2005); Revised List of Quarantinable Communicable Disease, Exec. Order No. 13674, 79 Fed. Reg. 45671 (July 31, 2014).

48. UCMJ art. 87b (2018); MCM, supra note 17, pt. IV, ¶ 18c(2)(b); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (directive by battery commander); United States v. Curtin, 26 C.M.R. 207 (C.M.A. 1958) (instruction on constructive knowledge was erroneous); United States v. Henderson, 32 M.J. 941 (N.M.C.M.R. 1991) (district order governing use of government vehicles by Marine recruiters), aff’d, 34 M.J. 174 (C.M.A. 1992); United States v. Jack, 10 M.J. 572 (A.F.C.M.R. 1980) (conviction set aside where accused violated local regulation concerning visiting hours in female barracks where sign posted at building’s entrance did not designate issuing authority).

49. United States v. Dixon, No. NMCM 97 00125, 1998 CCA LEXIS 251, at *1 (N-M. Ct. Crim. App. June 15, 1998).

50. United States v. Tinker, 27 C.M.R. 366, 368 (C.M.A. 1959); UCMJ art. 92(c)(1)(a)(i) (2018).

51.DODI 6200.03, supra note 8, ¶ 1.2(b); DODI 5200.08, supra note 28.

52. DODI 6200.03, supra note 8, ¶ 1.2(b); DODI 5200.08, supra note 28; Tinker, 27 C.M.R. at 366-68.

53. Tinker, 27 C.M.R. at 366-67.

54.DODI 6200.03, supra note 8, ¶ 3.1(h).

55. See supra note 47.

56. Code 20 Sidebar, supra note 31.

57. Id.

58. Id.

59. DODI 6200.03, supra note 8, ¶ 3.2.c.(5).

60. MCM, supra note 17, R.C.M. 307(c)(3).

61. “Major Changes: A major change is one that adds a party, an offense, or a substantial matter not fairly included in the preferred charge or specification, or that is likely to mislead the accused as to the charge offense.” Id. R.C.M. 603 (2019).

62. MCM, supra note 17, app. 12A.

63. UCMJ art. 87b (2018).

64. MCM, supra note 17, R.C.M. 304(a); see also Code 20 Sidebar, supra note 31.

65. MCM, supra note 17, pt. IV, ¶ ١٣c(4).

66. Id. app. 12

67. UCMJ art. 90 (2018).

68. Id. art. 90(c)(2)(d).

69. Id. art. 90(c)(2)(a).

70. Id. art. 92.

71. Id. art. 92(c)(1)(c).

72. DoDI 6200.03, supra note 8, para. 3.1.f.

73. UCMJ art. 92(c)(1) (2018).

74. Id. art. 92.

75. Id.

76. See Appendix C (comparing offenses related to Breaking a Medical Quarantine and the impact of the ultimate offense doctrine on sentencing).

77. MCM, supra note 17, app. 12, A12-1 to A12-2.

78. See MCM, supra note 17, app. 12.

79. United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969).

80. United States v. Hargrove, 51 M.J. 408, 409 (C.A.A.F. 1999).

81. Criminal Law Dep’t, The Judge Advocate Gen.’s Legal Ctr & Sch., U.S. Army, Criminal Law Deskbook 2019 (Jan. 2, 2019) [hereinafter Crim. Law Deskbook].

82. MCM, supra note 17, pt. IV ¶ 18d (note).

83. Crim. Law Deskbook, supra note 81; Manual for Courts-Martial, United States pt. IV, ¶ 16e(1) to (2) (2016).

84. See MCM, supra note 17, pt. IV, 18.d (“Note: For (1) and (2) of this rule, the punishment set forth does not apply in the following cases: if, in the absence of the order or regulation which was violated or not obeyed, the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed elsewhere for that particular offense.”).

85. Additional discussion of other potentially applicable charges (e.g., negligent homicide) is outside the scope of this article.

86. UCMJ art. 79(b) (2018).

87. Id. art. 79(c). “Regulatory Authority. Any designation of a lesser included offense in a regulation referred to in subsection (b) shall be reasonably included in the greater offense.” Id.

88. 2018 Amendments to the Manual for Courts-Martial, United States, Exec. Order No. 13825, 83 Fed. Reg. 46 (Mar. 1, 2018).

89. Id.

90. Article 87b was created by the Military Justice Act of 2016, section 1007. Judicial Proceedings Panel, supra note 14, sec. 1007. Considering the novelty of the article, there is not much case law behind it. A LexisNexis search on 2 April 2020 utilizing the phrase “‘breaking restriction’ w/s 134” yielded 435 cases. This indicates the popularity of breaking restriction as charged under the previous iteration. See David A. Schlueter et al., Military Crimes and Defenses § 5.8[2] (Matthew Bender & Co. 3d. ed. 2018) (“[The offense of breaking restriction] is a charge frequently used in courts-martial.”).

91. MCM, supra note 17, app. 12.

92. MCM, supra note 17, pt. IV, para. 91.c.(5)(a).

93. United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979).

94. Id.

95. See DoDI 6200.03, supra note 8.

96. United States v. Reyesesquer, No. 201700342, 2018 CCA LEXIS 255, at *x (N-M. Ct. Crim. App. May 29, 2018)

97. Id. See also United States v. Mack, 65 M.J. 108, 109 (C.A.A.F. 2007).

98. While the child custody agreement does not override the lawful order, it would likely serve as extenuation and mitigation. When administratively restricting individuals pursuant to a health condition, the least restrictive means should be utilized. Additionally, a process to obtain a waiver or exception to policy should be included in the order— this type of restriction is not punitive in nature.

99. DODI 6200.03, supra note 8.

100. MCM, supra note 17, pt. I, ¶ 3.

101. DoDI 6200.03, supra note 8, fig. 2.

102. Id. fig. 3.

103. For the reasons set forth in this Declaration, the individual listed in this order additionally meets the standards for quarantine under 42 C.F.R. § 70.6 because the subject person is reasonably believed to be in a qualifying stage of the disease. And if released from the place of quarantine the subject person would be moving from one State into another or constitute a probable source of infection to others who may be moving from one State into another. Qualifying stage is defined under 42 U.S.C. § 264(d)(2) and 42 C.F.R. § 70.1 to mean:

(1) The communicable stage of the of a quarantinable communicable disease; or

(2) The precommunicable stage of the quarantinable communicable disease, but only if the quarantinable communicable disease would be likely to cause a public health emergency if transmitted to other individuals.

104. Quarantine means separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who is/are not yet ill, from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease.

105. Both for quarantine under the reference and federal quarantine under 42 U.S.C. § 264 and 42 C.F.R. §§ 70.14, 71.37.

106. When a commander issues a personalized medical quarantine order, coordination with installation law enforcement will facilitate enforcement of the order and protection of public health.

Appendix A

Suggested Wording for a Written Declaration of a Public Health Emergency101

Subject: Declaration of a Public Health Emergency on [Installation Name]

I have been notified by my Public Health Emergency Officer (PHEO) of a possible public health situation on our installation involving {agent/disease name or description of the qualifying incident} that requires immediate action. Based on the PHEO’s recommendations and the results of a preliminary investigation, I am declaring a public health emergency in accordance with DoD Instruction (DoDI) 6200.03, “Public Health Emergency Management (PHEM) Within the DoD,” and {applicable Service Instruction}. This declaration will terminate automatically 30 days from the date of this memorandum unless it is renewed and re-reported or terminated sooner by me or a senior commander in the chain of command.

The installation PHEO {and public health personnel} are hereby directed to identify, confirm, and control this public health emergency utilizing all the necessary means outlined in DoDI 6200.03 and {applicable Service Instruction}. To implement my direction, the PHEO may issue guidance that affects installation personnel and property, and other individuals working, residing, or visiting this installation (e.g., steps to protect personnel health, closing base facilities, restricting movement, or implementing quarantine for select individuals). We will establish the Health Protection Condition (HPCON) level framework that will provide specific actions specific to this emergency that each person should take to protect his or her health.

The installation command and the PHEO will coordinate activities and share information with {list which of the following are applicable to the current situation: federal, State, local, tribal, territorial, and/or host nation. For overseas commands, replace “Federal, State, and local” with “host nation”} officials responsible for public health and public safety to ensure our response is appropriate for the public health emergency. Shared information may include personally identifiable health information only to the extent necessary to protect the public health and safety.

Any person who refuses to obey or otherwise violates an order during this declared public health emergency may be detained. Those not subject to military law may be detained until civil authorities can respond. Violators of procedures, protocols, provisions, or orders issued in conjunction with this public health emergency may be charged with a crime under the Uniform Code of Military Justice and under Section 271 of Title 42, United States Code (U.S.C.). Pursuant to Section 271 of Title 42, U.S.C., violators are subject to a fine up to $1,000 or imprisonment for not more than one year, or both.

Appendix B

Order for Quarantine102 Example

1. Based on the enclosure, I find:

a. Based on the scientific evidence collected concerning COVID-19, the disease meets the definition of “severe acute respiratory syndrome” as specified under Executive Order 13295, as amended by Executive Orders 13375 and13674.

b. The Director General of the World Health Organization has declared that the 2019-nCoV/COVID-19 constitutes a public health emergency of International Concern. The Secretary of the U.S. Department of Health and Human Services has declared that 2019-nCoV/COVID-19 constitutes a public health emergency.

c. I have determined, pursuant to reference (a), that a public health emergency exists aboard [Marine Corps Base Hawaii] as established by reference (b).

d. I reasonably believe that the subject person is infected with or has been exposed to COVID-19.103

e. COVID-19 is a quarantinable communicable disease in the United States, meaning that, if necessary, to preserve good order and discipline and to provide for and safeguard my command, I may order you into quarantine.

f. Quarantine104 is authorized by reference (a). The facts listed in the enclosure support the conclusion that quarantine is appropriate. This order meets the requirements of reference (a).

g. Based on these reasonable beliefs, I find that the subject person meets the standards applicable for a quarantine order.105

h. Military authorities may legally detain you until you are no longer at risk of becoming ill and spreading the disease to others or this order expires, whichever comes first. The incubation period for COVID-19 is currently believed to be up to 14 days. You will be reassessed in 14 days. This order expires at the conclusion of that assessment unless extended on the recommendation of a licensed medical provider.

i. This order will take effect immediately.

2. Your place of quarantine shall be [Barracks room] [Branch Health Clinic] [Restricted to Marine Corps Base Hawaii]

3. During your time in quarantine, you shall:

a. Take precautions, as directed by healthcare staff and applicable policies, to prevent the possible spread of COVID-19 to others.

b. Cooperate with the efforts of health authorities to contact other exposed people to prevent the possible spread of the quarantinable communicable disease. This includes providing information regarding people you had contact with, places you visited or traveled to, and your medical history.

4. You have the following legal rights:

a. Legal Authority: I have ordered that you be quarantined because I reasonably believe that you have been infected with or exposed to [COVID-19]. Quarantine is authorized by reference (a).

b. Conditions of Quarantine: Your command will arrange for adequate food and water, a continued place to stay on [Marine Corps Base Hawaii], medical treatment, and a way for you to communicate with a family member or another representative while you are held in quarantine.

c. Medical Examination: Per the reference (a), § 3.2(b)(1), you may be required to provide information and undergo such testing, as may be reasonably necessary, to diagnose or confirm the presence, absence, or extent of infection with COVID-19. Medical examination and other testing will be performed by authorized, licensed healthcare staff. The healthcare staff will also be responsible for your medical care. Your commander will discuss with healthcare staff your diagnosis and management, and ways to prevent spread of the disease.

d. Health Monitoring: Healthcare staff will monitor your health condition so that the time you remain under quarantine will not last longer than is needed to prevent the spread of the quarantinable communicable disease to others. You must cooperate with the instructions of healthcare staff and other authorized personnel during the time you are in quarantine.

e. Right to Contest: Per reference (a), § 3.2(c)(9) permits you to contest the reason for your restriction. You will be allowed to present information on your behalf supporting an exemption or release from quarantine. Your commander or a neutral designee will review such information and promptly provide a written decision on your need for quarantine or isolation.

f. Penalties for Violating This Order: This order is punitive. Violations may be subject to administrative or judicial action under the Uniform Code of Military Justice.


Commanding Officer

[Marine Corps Base Hawaii]

Copy to:

Installation Law Enforcement106

Appendix C

Table 1 conceptualizes criminal quarantine-related offenses by group. It is helpful for understanding the punitive landscape.