Author Topic: Acquisition Cards and Lawful Orders  (Read 4261 times)

0 Members and 1 Guest are viewing this topic.

Offline MJP

  • Army.ca Veteran
  • *****
  • 134,805
  • Rate Post
  • Posts: 3,210
Re: Acquisition Cards and Lawful Orders
« Reply #25 on: April 17, 2017, 10:12:21 »
MJP,

If the items (i.e, civilian clothing) are government business-related purchases then I am not sure what the issue is.

I don't either, LPO is a valid procurement method and Acq Card is just the payment tool.  What matters to us is that the procurement was conducted properly generally not the payment method.  I would generally advise against using LPO to go buy civilian clothes for a number of reasons.  However LPO isn't always about urgency but can also be a means of expediency/efficiency.  The base LPO folks who do up larger contracts than what is generally doneat a unit all have Acq Cards and they are used to facilitate contracts.  The vendor is happy and so is the customer that they received their items/service in a more efficient manner.

In normal cases not involving the QM, nothing because the Supply Tech has delegated spending authority.  When the Sup Tech's boss (QM) orders him to do it and he/she refuses, then admin or disciplinary action could result. Upon further investigation the legality of the order would be discovered.  If the CO, felt the QM was wrong then the same would apply and the Sup Tech would get a pat on the back. In most cases a Sup Tech would have a Sr Sup Tech (in the unit or on Base) to refer to.  I do not see the urgency in the example given, so if I was the Sup Tech I would drag my heels and talk to the appropriate superiors to determine how deep the crap is that I am about to step in - by buying or refusing to buy the goods.

If the Sup Tech does not have the balls and smarts to take the time to protect themselves (or others) then they should not hold the Acq card in the first place.

Very true and I would initially applaud the Tech for ensuring that they could conduct the purchase.  However having been the QM, the QM/RQ is rarely asking the Tech to go out and and buy on their own whim.  It is generally directed and the QM is usually following their marching orders as well.  At the end of the day it isn't the QM's money, it is the CO's and if he wants something the QM's job is to advise the best methods to procure (or gently dissuade). 


In normal cases not involving the QM, nothing because the Supply Tech has delegated spending authority

Do you mean contracting authority or the ability to initiate the expenditure?

I would be careful here for a few reasons, one because you don't need a DOA to use a an Acq card as it is only a payment tool.  There are a few rules extra rules to follow when someone has a Acq Card but no DOA.  Generally however they would have a DOA and the recommendation is they have a procurement only DOA (only contracting authority).  That means Sec 32 and initiation authority have to come from those that are duly authorized and no LPO buyer should buy without those locked down.  The procurement DOA gives them a very valid stalling technique if someone without a valid DOA tries to get them to purchase stuff.

Another reason I would be careful is I have found that those that hold a Acq Card and their immediate superiors woefully misunderstand what they can and can't buy.  Part of it is on them but part of it is we have a number of regulations/restrictions at all levels that are not very collated in any one place.  This however isn't a financial restriction so having a DOA means nothing.  The DOA is just the requisite tool to allow for more efficient procurement and doesn't convey any special knowledge of what you can/can't procure.  The flip side of this is if a LPO person is overly restrictive and won't go out and buy stuff regardless of who is asking.  This is where your admin/disciplinary action could happen if a bit of PD on how Acq cards work fails.

Hope is not a valid COA

Offline Navy_Pete

  • Army.ca Subscriber
  • Full Member
  • *
  • 10,915
  • Rate Post
  • Posts: 444
Re: Acquisition Cards and Lawful Orders
« Reply #26 on: April 17, 2017, 10:43:15 »
Dumb question isn't there normally a form of some sort to request and approve LPOs?

Normally on ships those are authorized by whoever has the sect 32 (ie the SYO), with the various departmental storeman putting in the paperwork for the head of department signing off that it's required.  Do they not do that in a similar way on shore units?


Offline Sandyson

  • Army.ca Subscriber
  • Jr. Member
  • *
  • 2,965
  • Rate Post
  • Posts: 91
Re: Acquisition Cards and Lawful Orders
« Reply #27 on: April 17, 2017, 11:16:05 »
Away back in the '60s, Base Supply had an audit team of a couple of guys.  This was the type of question they would answer with authority. Do they still exist?

Offline MJP

  • Army.ca Veteran
  • *****
  • 134,805
  • Rate Post
  • Posts: 3,210
Re: Acquisition Cards and Lawful Orders
« Reply #28 on: April 17, 2017, 11:25:02 »
Dumb question isn't there normally a form of some sort to request and approve LPOs?

Normally on ships those are authorized by whoever has the sect 32 (ie the SYO), with the various departmental storeman putting in the paperwork for the head of department signing off that it's required.  Do they not do that in a similar way on shore units?

Yes, generally the unit's supporting supply org.  Others with a DOA can say go buy x but it is generally handled by the SSO.  Generally the LPO dude/ette isn't going to go buy something just because someone said so.

Away back in the '60s, Base Supply had an audit team of a couple of guys.  This was the type of question they would answer with authority. Do they still exist?

The RDAO's office does PPV on Acq Cards and procurement files.  They are generally pretty black and white and rigid being fin ppl and don't see shades of grey.  Except for exact policy and lessons on how to say no, I find them less than useful.  They are a good checks and balance team, the problem is we conduct an incredible amount of contracting and LPO to support the org and they simply look at a small % of the overall files.
Hope is not a valid COA

Online ModlrMike

    : Riding time again... woohooo!

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 195,964
  • Rate Post
  • Posts: 3,404
    • Canadian Association of Physician Assistants
Re: Acquisition Cards and Lawful Orders
« Reply #29 on: April 17, 2017, 11:51:43 »
In my unit, the conversation would go something like this:

LS X, please go out and buy (whatever)

Certainly Sir, however I need confirmed Sect 32 authority from the Budget Mgr. Can you send me the details so I can staff it up?

Just go and buy it.

Unfortunately Sir, the CO has said thou shalt not spend money with confirmed Sect 32 approval.



So, while it might technically be a prima facie lawful order, the Sup Tech is prevented from carrying it out.
WARNING: The consumption of alcohol may create the illusion that you are tougher,smarter, faster and better looking than most people.
Every normal man must be tempted, at times, to spit upon his hands, hoist the black flag, and begin slitting throats. (H.L. Mencken 1919)
Zero tolerance is the politics of the lazy. All it requires is that you do nothing and ban everything.

Offline Navy_Pete

  • Army.ca Subscriber
  • Full Member
  • *
  • 10,915
  • Rate Post
  • Posts: 444
Re: Acquisition Cards and Lawful Orders
« Reply #30 on: April 17, 2017, 20:14:52 »
In my unit, the conversation would go something like this:

LS X, please go out and buy (whatever)

Certainly Sir, however I need confirmed Sect 32 authority from the Budget Mgr. Can you send me the details so I can staff it up?

Just go and buy it.

Unfortunately Sir, the CO has said thou shalt not spend money with confirmed Sect 32 approval.



So, while it might technically be a prima facie lawful order, the Sup Tech is prevented from carrying it out.

That's the nice thing with the form; it goes to the section 32 person for final approval so they can just go and buy it.  Effectively added on about 10 minutes after I signed it to the form getting reviewed and signed so the  suptechs could go buy it. Was easier as the SYO had the cabin across the flat so it went about 8 feet

That was the end state; there was about six months of trial and error and reviewing the LPO requests details to make sure they could get quickly approved once I signed them off, as I spent a while filtering out the crap and getting the good habits put in place.

Anyway, the standing orders from the CO had that process in place, so so it wasn't a lawful order until we went through those hoops.  When things were actually urgent, our suptechs were great about getting the feelers out to start the process while the paperwork was making it's way through.

Offline Halifax Tar

  • Army.ca Veteran
  • *****
  • 31,988
  • Rate Post
  • Posts: 1,381
  • Ready Aye Ready
Re: Acquisition Cards and Lawful Orders
« Reply #31 on: April 18, 2017, 06:09:14 »
My disconnect is that I had believed, from the outside looking in at LPO, that even with Sect 32 approval certain items we not supposed to be bought. 

As for the lawful command it all sounds kind of wishy washy to me and really about how much the LPO clerk wants to push the subject.  Keep point, save paper copies of all emails and other documents relating to the purchase.
Lead me, follow me or get the hell out of my way

Offline SupersonicMax

    is back home.

  • Mentor
  • Army.ca Veteran
  • *
  • 70,360
  • Rate Post
  • Posts: 2,562
Re: Acquisition Cards and Lawful Orders
« Reply #32 on: April 18, 2017, 09:17:27 »
Ask these guys if it's wishy washy:

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/218872/index.do

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/218446/index.do

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/229241/index.do

If an individual keeps questionning orders and directives, time after time, to the point it undermines efficiency and the CoC itself, you bet the CoC should charge them.

Offline Simian Turner

    is a humbled, curious veteran!

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 38,725
  • Rate Post
  • Posts: 2,346
  • Do the right thing; do the thing right!
Re: Acquisition Cards and Lawful Orders
« Reply #33 on: April 18, 2017, 13:43:09 »
Max,

That is great, you googled and found 3 recent cases of "disobeying a lawful command".  If you search "fraud" on the same webpage you will find 115 cases. That is why I suggested gathering more info rather than acting irresponsibly.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/en/d/s/index.do?cont=fraud
The grand essentials of happiness: something to do, something to love, something to hope for.  Allan K. Chalmers

Offline Kat Stevens

    non atrocitate, non clementia mutabatur.

  • Army.ca Subscriber
  • Army.ca Fixture
  • *
  • 192,990
  • Rate Post
  • Posts: 5,351
  • that's how we roll in redneck land
Re: Acquisition Cards and Lawful Orders
« Reply #34 on: April 18, 2017, 13:58:57 »
Capt X; Cpl, take your magic card downtown and buy 50 left handed widget drivers.
Cpl Z; certainly sir, if you'd just write that down for me and sign it, I'm off like 3 week old milk!

Wouldn't that cover the card holder, without bringing in the lawfulness of the command?
Apparently, a "USUAL SUSPECT"

“In peace there's nothing so becomes a man as modest stillness and humility; but when the blast of war blows in our ears, then imitate the action of the tiger; stiffen the sinews, summon up the blood, disguise fair nature with hard-favor'd rage.”

 Every normal man must be tempted at times to spit on his hands, hoist the black flag, and start slitting throats

Online ModlrMike

    : Riding time again... woohooo!

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 195,964
  • Rate Post
  • Posts: 3,404
    • Canadian Association of Physician Assistants
Re: Acquisition Cards and Lawful Orders
« Reply #35 on: April 18, 2017, 14:44:56 »
Capt X; Cpl, take your magic card downtown and buy 50 left handed widget drivers.
Cpl Z; certainly sir, if you'd just write that down for me and sign it, I'm off like 3 week old milk!

Wouldn't that cover the card holder, without bringing in the lawfulness of the command?

There's still that pesky Sect 32 business. While the order may not be manifestly unlawful, the Tech is still prohibited from carrying it out due to the CO's pre-existing directive. Acquisition cards and purchasing are a form of contracting, and as such users are bound by the regulations regarding that issue. In this instance, the Capt giving the order does not have the financial authority to enter into a contract.

As I see it, it is not particularly a question of the lawfulness of the command, rather the ability to carry it out. When we talk about disobeying a lawful command, there's a part that speaks to intent. If you are physically restrained from carrying out the order, then intent doesn't really factor.

I'm not convinced that a charge laid in the circumstances described above would have much success at trial, and that the advice of JAG would be unsatisfying for the charge laying authority.

I would also hope that the Cpl's LogO/Supply O/QM etc would be firmly in his or her corner.
WARNING: The consumption of alcohol may create the illusion that you are tougher,smarter, faster and better looking than most people.
Every normal man must be tempted, at times, to spit upon his hands, hoist the black flag, and begin slitting throats. (H.L. Mencken 1919)
Zero tolerance is the politics of the lazy. All it requires is that you do nothing and ban everything.

Offline MJP

  • Army.ca Veteran
  • *****
  • 134,805
  • Rate Post
  • Posts: 3,210
Re: Acquisition Cards and Lawful Orders
« Reply #36 on: April 18, 2017, 15:08:16 »
There's still that pesky Sect 32 business. While the order may not be manifestly unlawful, the Tech is still prohibited from carrying it out due to the CO's pre-existing directive.

Are you saying only the CO can give 32 or did I miss a scenario somewhere?  While unlikely that random Capts are telling the LPO clerk to go make a purchaser it isn't unknown.  Many units enable their Ops staff with DOAs for Sec 32 and expenditure initiation and while generally the request to go buy something flows through the Support Supply Org, it can be a direct line (albeit rare).

I'm not convinced that a charge laid in the circumstances described above would have much success at trial, and that the advice of JAG would be unsatisfying for the charge laying authority.

I would also hope that the Cpl's LogO/Supply O/QM etc would be firmly in his or her corner.

Agreed on both counts nor would I think a fraud charge even be entertained.  Hell the court docket would be full if we did that based on the regular occurrences of Contracting irregularities.
Hope is not a valid COA

Offline SupersonicMax

    is back home.

  • Mentor
  • Army.ca Veteran
  • *
  • 70,360
  • Rate Post
  • Posts: 2,562
Re: Acquisition Cards and Lawful Orders
« Reply #37 on: April 18, 2017, 18:44:01 »
Max,

That is great, you googled and found 3 recent cases of "disobeying a lawful command".  If you search "fraud" on the same webpage you will find 115 cases. That is why I suggested gathering more info rather than acting irresponsibly.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/en/d/s/index.do?cont=fraud

Isn't the whole thread assuming that the hoops have been jumped through for section 32 before such order is issued?

Offline dapaterson

  • Army.ca Subscriber
  • Army.ca Legend
  • *
  • 363,465
  • Rate Post
  • Posts: 14,568
Re: Acquisition Cards and Lawful Orders
« Reply #38 on: April 18, 2017, 18:50:06 »
Isn't the whole thread assuming that the hoops have been jumped through for section 32 before such order is issued?

Never underestimate the amount of pure stupid out there in the world.
This posting made in accordance with the Charter of Rights and Freedoms, section 2(b):
Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
http://laws.justice.gc.ca/en/charter/1.html

Offline SupersonicMax

    is back home.

  • Mentor
  • Army.ca Veteran
  • *
  • 70,360
  • Rate Post
  • Posts: 2,562
Re: Acquisition Cards and Lawful Orders
« Reply #39 on: April 18, 2017, 22:07:14 »
Max,

That is great, you googled and found 3 recent cases of "disobeying a lawful command".  If you search "fraud" on the same webpage you will find 115 cases. That is why I suggested gathering more info rather than acting irresponsibly.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/en/d/s/index.do?cont=fraud

I didn't search, I went through the upcoming court martials.  If we conduct the same search, we have 135 results for disobeying a lawful command.  This is real.

I was reading through some of then for fun. 

Quote
The facts of this case are not complicated.  In a training context, here at Canadian Forces Base Meaford, the offender, a senior non-commissioned member of the Canadian Forces holding the rank of sergeant, was a section commander, and in the course of a training exercise was clearly ordered by his superior, Sergeant Underhill, not to move a vehicle onto the defensive position used for the training purposes.  He violated that order by moving the vehicle onto the position for reasons which he may have thought sufficient at the time.  Whether or not those reasons were thought to be sufficient or were, in fact, sufficient is not relevant.  There is no question but that orders from superiors must be obeyed.  I have no doubt that having risen to the rank of sergeant over the course of his service in the Canadian Forces since 1995 the offender is keenly aware of the importance of strict and absolute obedience to orders.  There can be few things as mischievous to the maintenance of military discipline as the disobedience of lawful orders.

Someone did something as small as moving a truck in good faith of all things and was found guilty and fined 1000$. Standing your grounds over something you think is not lawful but you're not 100% sure will get you in trouble if it so happens you are wrong. 

Like it has been said before, after some digging to make 100% sure you are right, express your disagreement once, if ordered again politely ask the order in writing or have a witness and execute it.
« Last Edit: April 18, 2017, 22:37:20 by SupersonicMax »

Offline Lumber

  • Donor
  • Army.ca Veteran
  • *
  • 40,034
  • Rate Post
  • Posts: 1,558
Re: Acquisition Cards and Lawful Orders
« Reply #40 on: April 19, 2017, 08:37:15 »
If Cpl A puts his foot down for something that is not a law (does it say in the Act you can't buy X?), I think that person could be charged.

I personally have a 1 pushback rule to my superiors (up to 2 above in the position I am employed): if asked to do something and I don't think it's right, I'll chalenge the individual once with an explaination,  if the individual then comes back with "thanks but no thanks", I put my feet together and execute the order.  If a Cpl or any non-immediate subordinate pressed me more than once on the same issue, I'd lose my patience fairly quickly. But, unless I am well versed on the issue, I normally dig a little deeper on the issue before I reply to the challenge...

Speaking of push back. I have one that is air force related that you might enjoy. It's second hand, but based on my experience with these exact matters, I can see this happening exactly as my friend described it:

/Sit down for Story Time

One of our ship's on the east coast was in the middle of a long trial program. One week, she had a mechanical failure, and had to cancel going to sea for a couple of days. As a result, they had to cancel the that week's trials, which included trials involving low flying aircraft. Come the end of the week, the ship was good to go, and the navy wanted to send her back to sea and get some trials done. They looked at their trials schedule, and realized that with air craft support, they had a couple trials they could knock-off in the short time they had left that week.

However, on such short notice, the MAFF refused to forward the ship's request to have air support for the trials. The MAFF (a Sgt) was steadfastly refusing to forward the request to the civilian company who provides these aircraft, because the policy is that all requests need to be handed in 2 weeks prior to trials.(yes, that is the written policy, but having actually done the job of the person on ship who makes such requests, I know from experience that the civilian company is perfectly capable of providing support on such short notice. Not always, but if they aren't busy elsewhere, they are more than happy to come out).

Now, trials aren't just something that the ship itself cocks up all on their own. Fleet and formation staff are heavily involved and have a vested interest in ensuring ship's programs remain on schedule, so they (read: the Admiral) want these trials done just as much as the ship does.

I don't know how far it went, but at some point a senior officer had to come down and yell at the Sgt and say something along the lines of "Are you going to be the one to tell the Admiral that his ships can't get their trials done because you wouldn't forward the RSS?!"

/End Story Time
“Extremes to the right and to the left of any political dispute are always wrong.”
― Dwight D. Eisenhower


Death before dishonour! Nothing before coffee!

Offline Pusser

  • Army.ca Veteran
  • *****
  • 72,230
  • Rate Post
  • Posts: 2,521
Re: Acquisition Cards and Lawful Orders
« Reply #41 on: April 19, 2017, 10:30:15 »
An acquisition card is a tool and LPO is a process, neither of which convey authority to spend.  Both of these things are used to facilitate the provision of material support to a unit, but the bottom line is that any purchasing that goes on must still follow the rules of purchasing (i.e. standing offers, quotes, etc) AND the unit doing the purchasing MUST have authority to make that purchase.  Just because a unit has the ABILITY (i.e. acquisition card(s) and an LPO system) to purchase virtually anything does not give them the AUTHORITY to purchase virtually anything.

True life example:  a ship wanted to purchase a custom-made "battle ensign" (not the correct term, but that's what they called a flag in ship's colours with a variation of the ship's badge on it for use in "showing off").  As there supporting supply officer, I certainly had the ability to purchase this for them (LPO + acquisition card), but not the authority (despite what their XO was telling me about "his" budget) as there is no entitlement for custom-made flags "look-at-me" flags.

As a general rule, units are never authorized to purchase clothing (civilian or otherwise), particularly operational clothing, unless specifically authorized.  Note that ship's ball caps (which are all acquired through LPO) are not really considered clothing. If a unit really feels the need to purchase clothing, they should consult with the appropriate LCMM to get authority.

One of the great things about our supply system is that there are actually means to get just about anything you could ever need, but you do need to go through the correct process in order to get some of the more "interesting" things that no one ever thought of before.  The challenge is finding the right person to talk to in order to get the ball rolling.
Sure, apes read Nietzsche.  They just don't understand it.

Offline Lumber

  • Donor
  • Army.ca Veteran
  • *
  • 40,034
  • Rate Post
  • Posts: 1,558
Re: Acquisition Cards and Lawful Orders
« Reply #42 on: April 19, 2017, 10:45:11 »

True life example:  a ship wanted to purchase a custom-made "battle ensign" (not the correct term, but that's what they called a flag in ship's colours with a variation of the ship's badge on it for use in "showing off").  As there supporting supply officer, I certainly had the ability to purchase this for them (LPO + acquisition card), but not the authority (despite what their XO was telling me about "his" budget) as there is no entitlement for custom-made flags "look-at-me" flags.


If the XO had handed you a piece of paper that said something like "I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would you carry out the purchase?

If you did, do you think YOU would get in trouble for it, or solely the XO?

If after receiving such a written order, would you get charged if you didn't follow through?
“Extremes to the right and to the left of any political dispute are always wrong.”
― Dwight D. Eisenhower


Death before dishonour! Nothing before coffee!

Offline Good2Golf

  • Directing Staff
  • Army.ca Fixture
  • *
  • 164,065
  • Rate Post
  • Posts: 9,703
  • Dammit! I lost my sand-wedge on that last jump!
Re: Acquisition Cards and Lawful Orders
« Reply #43 on: April 19, 2017, 11:06:46 »
If the XO is an authorized Section 32 delegate of the CO's, appropriately certified and with such delegation so published per the CO's approved DOA, then the 'allocation of sufficient funds' issue is at least addressed.  In the specific example cited, such material is NPP (I know this for certain as I had exactly the same issue, albeit with a Squadron 'camp flag', and I, my Chief, my QM and my RQ were all in line with the policies) and Crown funds are not authorized, so "enough $" does not always equal 'legal acquisition,' so if I were the QM, I would advise the XO that purchasing NPP with public funds is not legal and I would maintain my position that I would not go forward with such a purchase. 

This is but one example, but it reinforces the point that there are a number of factors to consider (sufficient & appropriate funds, compliance with all applicable laws, regulations, policies and directives, and the proper use of suitable procurement tools).  Have there been acquisitions that didn't have everything line up?  You bet.  Does that mean that it was right?  No.  It is the responsibility of those responsible and accountable, to ensure that all within the chain are supporting compliance with the approved process, which itself does have allowances for exceptions, but specific procedures as well to make us of such allowances.

:2c:

Regards
G2G

Offline Lumber

  • Donor
  • Army.ca Veteran
  • *
  • 40,034
  • Rate Post
  • Posts: 1,558
Re: Acquisition Cards and Lawful Orders
« Reply #44 on: April 19, 2017, 11:24:30 »
....so if I were the QM, I would advise the XO that purchasing NPP with public funds is not legal and I would maintain my position that I would not go forward with such a purchase. 

So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?
“Extremes to the right and to the left of any political dispute are always wrong.”
― Dwight D. Eisenhower


Death before dishonour! Nothing before coffee!

Offline Halifax Tar

  • Army.ca Veteran
  • *****
  • 31,988
  • Rate Post
  • Posts: 1,381
  • Ready Aye Ready
Re: Acquisition Cards and Lawful Orders
« Reply #45 on: April 19, 2017, 11:30:25 »
So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?

TB, FAM and PAM regulations out weigh an order from the XO of a ship no ?  intended as a question not flame.
Lead me, follow me or get the hell out of my way

Offline Good2Golf

  • Directing Staff
  • Army.ca Fixture
  • *
  • 164,065
  • Rate Post
  • Posts: 9,703
  • Dammit! I lost my sand-wedge on that last jump!
Re: Acquisition Cards and Lawful Orders
« Reply #46 on: April 19, 2017, 11:39:26 »
So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?

Yes!

I can also tell you as a past CO, that if, hypothetically, my DCO tried this with my QM or my RQ, I would be having a one-way conversation with my DCO, and it would not be him to me.

Regards
G2G

Offline Pusser

  • Army.ca Veteran
  • *****
  • 72,230
  • Rate Post
  • Posts: 2,521
Re: Acquisition Cards and Lawful Orders
« Reply #47 on: April 19, 2017, 11:44:19 »
If the XO had handed you a piece of paper that said something like "I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would you carry out the purchase?

If you did, do you think YOU would get in trouble for it, or solely the XO?

If after receiving such a written order, would you get charged if you didn't follow through?

You cannot be ordered to break the law.  Such an order would be "manifestly unlawful" and, therefore, you would not be obligated to follow it. In fact, you would actually be obligated to not follow it and even report it in some cases.  The trouble is that you have to be pretty sure that you're right on whatever issue is in dispute.  Unfortunately, being unsure whether a law is "manifestly unlawful" will not protect you at a court martial if you carry it out.  Merely following orders has failed as a defence on more than one occasion, so yes, the burden lies on the receiver of the order to determine its lawfulness.  However, the onus is also on leaders to ensure that they are giving lawful orders in the first place.  Any superior who continues to press a subordinate (who is a subject matter expert when the superior is not) to carry out an order that the subordinate has respectfully advised is contrary to law/direction/policy/regulation/ etc. is an idiot.

In reference to my specific example, however, I was not in a subordinate/superior situation as he was not my superior.  He was the XO of a minor war vessel I supported.  I was not a member of his ship's company and we were the same rank.  However, my boss was also his boss's boss and my boss had my back.
Sure, apes read Nietzsche.  They just don't understand it.

Offline Lumber

  • Donor
  • Army.ca Veteran
  • *
  • 40,034
  • Rate Post
  • Posts: 1,558
Re: Acquisition Cards and Lawful Orders
« Reply #48 on: April 19, 2017, 11:49:42 »
You cannot be ordered to break the law.  Such an order would be "manifestly unlawful" and, therefore, you would not be obligated to follow it. In fact, you would actually be obligated to not follow it and even report it in some cases.  The trouble is that you have to be pretty sure that you're right on whatever issue is in dispute.  Unfortunately, being unsure whether a law is "manifestly unlawful" will not protect you at a court martial if you carry it out.  Merely following orders has failed as a defence on more than one occasion, so yes, the burden lies on the receiver of the order to determine its lawfulness.  However, the onus is also on leaders to ensure that they are giving lawful orders in the first place.  Any superior who continues to press a subordinate (who is a subject matter expert when the superior is not) to carry out an order that the subordinate has respectfully advised is contrary to law/direction/policy/regulation/ etc. is an idiot.

In reference to my specific example, however, I was not in a subordinate/superior situation as he was not my superior.  He was the XO of a minor war vessel I supported.  I was not a member of his ship's company and we were the same rank.  However, my boss was also his boss's boss and my boss had my back.

I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!
“Extremes to the right and to the left of any political dispute are always wrong.”
― Dwight D. Eisenhower


Death before dishonour! Nothing before coffee!

Offline Good2Golf

  • Directing Staff
  • Army.ca Fixture
  • *
  • 164,065
  • Rate Post
  • Posts: 9,703
  • Dammit! I lost my sand-wedge on that last jump!
Re: Acquisition Cards and Lawful Orders
« Reply #49 on: April 19, 2017, 11:50:53 »
TB, FAM and PAM regulations out weigh an order from the XO of a ship no ?  intended as a question not flame.

XO should not be knowingly giving an order that contravenes such regulations.  If the LogO is respectful (or not even) in how he or she states their objections to the XO, then the XO shouldn't be a unprofessional *** and continue pressing his unlawful order.  To be clear, the Federal Administration Act, R.S.C., 1985, c. F-11, is Federal Legislation, a law to be precise, to contravene the act is to break a Canadian Federal law. That sounds like "unlawful" if there was ever any doubt.

Regards
G2G