# Acquisition Cards and Lawful Orders



## Halifax Tar (16 Apr 2017)

An interesting debate broke out in my Sup Tech circle of friends.  The question is can a Cpl be compelled by order, issued by a commissioned officer, to use the CAF Acquisition Card (Military credit card for LPO purchases) that was issued to the Cpl in a manner that goes against the rules and regulations as laid out in the Financial Admin Manual (FAM), Procurement Admin Manual (PAM) and Supply Admin Manual (SAM) ? 

Would that order be considered a lawful command ?  

I argued that it would not be a lawful command as it is ordering the junior member to put his/her purchasing accreditation in jeopardy and possibly face admin or disciplinary action if their purchases are caught and audited.  

Thoughts ?


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## the 48th regulator (16 Apr 2017)

Halifax Tar said:
			
		

> An interesting debate broke out in my Sup Tech circle of friends.  The question is can a Cpl be compelled by order, issued by a commissioned officer, to use the CAF Acquisition Card (Military credit card for LPO purchases) that was issued to the Cpl in a manner that go against the rules and regulations as laid out in the Financial Admin Manual (FAM), Procurement Admin Manual (PAM) and Supply Admin Manual (SAM) ?
> 
> Would that order be considered a lawful command ?
> 
> ...



That would be akin if the officer ordered you to fire a rifle illegally at a Capitulating enemy.

The rank does not dictate the rule, and anyone can question an in lawful order.  In this case, the officer is using a card, issued to a Cpl. (who is responsible) to perform his needs.  Wrong.

dileas

tess


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## ModlrMike (16 Apr 2017)

Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.

Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.


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## SupersonicMax (16 Apr 2017)

In order to not obey an order, it must be clearly unlawful. In order to be unlawful, it needs to be illegal.  I would say if it contravenes law (not regulation), then it is unlawful.

19.015 - LAWFUL COMMANDS AND ORDERS

Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer.

(M)

NOTES

(A) The expression "superior officer" includes a non-commissioned member. (See article 1.02 - Definitions.)

(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

(C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child.


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## ModlrMike (16 Apr 2017)

SupersonicMax said:
			
		

> In order to not obey an order, it must be clearly unlawful. In order to be unlawful, it needs to be illegal.  I would say if it contravenes law (not regulation), then it is unlawful.



True, but the above example not only contravenes the FAM, it contravenes the Financial Administration Act... so therefore still an illegal order.


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## MJP (16 Apr 2017)

The Acq card at the end of the day is just a payment tool and if something is req and can be justified (Op need for example) and all other fin aspects are observed then I can see it happening.  In fact, I have seen it happen and upon PPV no issues were raised because all the ducks were in a row.  It would however truly depend on the case at hand, as it is never clear cut and to say every use outside the bounds of Acq Card is ILLEGAL is bit much as there are always shades of grey.


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## Halifax Tar (16 Apr 2017)

ModlrMike said:
			
		

> Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.
> 
> Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.



Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating.


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## Halifax Tar (16 Apr 2017)

MJP said:
			
		

> The Acq card at the end of the day is just a payment tool and if something is req and can be justified (Op need for example) and all other fin aspects are observed then I can see it happening.  In fact, I have seen it happen and upon PPV no issues were raised because all the ducks were in a row.  It would however truly depend on the case at hand, as it is never clear cut and to say every use outside the bounds of Acq Card is bit much as there are always shades of grey.



Very true.  LPO is all kinds of shades of grey with really little black and white.


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## the 48th regulator (16 Apr 2017)

Halifax Tar said:
			
		

> Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating.



What is the Cpl.Authorized to purchase, a) Who is his signing Authority b)

This post right here, by ModlrMike, answered your question.  You can bring up civvy clothes, rubber duckies or any other compassionate means, this is not an episode of a sitcom.



			
				ModlrMike said:
			
		

> Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.
> 
> Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.



dileas

tess


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## MJP (16 Apr 2017)

Halifax Tar said:
			
		

> Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating.



In this case figure out at what level of HQ it can be authorized at and push the issue up.  The QM at the unit level shouldn't be making that call on their own.  Usually though it is pressure from within the unit so the proper thing for the QM to do is temper expectations, while giving them the steps they can take to be able to conduct that purchase.  

While not common this happens from time to time and I have seen Acq Card usage for things of this nature.  Again it really depends on what the item are and the urgency required that other better routes can't be taken.


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## Halifax Tar (16 Apr 2017)

the 48th regulator said:
			
		

> What is the Cpl.Authorized to purchase, a) Who is his signing Authority b)
> 
> This post right here, by ModlrMike, answered your question.  You can bring up civvy clothes, rubber duckies or any other compassionate means, this is not an episode of a sitcom.
> 
> ...



Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?

The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.


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## Halifax Tar (16 Apr 2017)

MJP said:
			
		

> In this case figure out at what level of HQ it can be authorized at and push the issue up.  The QM at the unit level shouldn't be making that call on their own.  Usually though it is pressure from within the unit so the proper thing for the QM to do is temper expectations, while giving them the steps they can take to be able to conduct that purchase.
> 
> While not common this happens from time to time and I have seen Acq Card usage for things of this nature.  Again it really depends on what the item are and the urgency required that other better routes can't be taken.



So purchasing rules are broken acceptably, on a case by case basis ?  Not arguing just trying to nail down your thoughts.


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## brihard (16 Apr 2017)

Personally, if I was confident that the order was unlawful, I would say as much, and if pressed on the issue, push it up the chain. If the Cpl knows his stuff on FAA and purchasing, he may be qualified to consider the order 'manifestly unlawful'. Make in the RQ's problem, and document the issue in an email to the appropriate parties in the unit.


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## SupersonicMax (16 Apr 2017)

Halifax Tar said:
			
		

> Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?



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...


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## the 48th regulator (16 Apr 2017)

Halifax Tar said:
			
		

> Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?
> 
> The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.



It is that cut and dry, and I have carried one for a decade.

Further, the Cpl is liable though his credit rating, therefore, the Officer is inringing on the Cpls Personal credit, and committing fraud.

Sorry, no such thing as "Special" this is not a novel about SAS running wild in the desessert..."Its not that cut and dry" in your scenario does not play out.


dileas

tess


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## Halifax Tar (16 Apr 2017)

the 48th regulator said:
			
		

> It is that cut and dry, and I have carried one for a decade.
> 
> Further, the Cpl is liable though his credit rating, therefore, the Officer is inringing on the Cpls Personal credit, and committing fraud.
> 
> ...



Is it possible for you to post on any topic without a hint of condescension ?  If you want to pick a fight go back to the pot debate.

On the topic at hand, we actually agree.  I misinterpreted your post(s).


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## the 48th regulator (16 Apr 2017)

Halifax Tar said:
			
		

> Is it possible for you to post on any topic without a hint of condescension ?  If you want to pick a fight go back to the pot debate.
> 
> On the topic at hand, we actually agree.  I misinterpreted your post(s).



Roger,

Sorry that was not my intent. I will walk away.  Hope you find the answer you are looking for.

dileas

tess


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## MJP (17 Apr 2017)

Halifax Tar said:
			
		

> So purchasing rules are broken acceptably, on a case by case basis ?  Not arguing just trying to nail down your thoughts.



Many of the restrictions on Acq Cards are in regulations laid out by DND/CAF.  Regulations are not law and can be circumvented if proper authority is given.  

To be clear below are the TB restrictions on using Acq Cards.  Note many of the restrictions that are being used as examples are not listed because at the end of the day a Acq Card is a payment tool.  A tool that can be used to pay for goods/services obtained for the government of Canada and its agencies.  We have further restricted that usage but that also means we control the ability to ease those restrictions.

http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=32504

B.2.2.1.4.3Cards, including convenience cheques, are not used for the following:
B.2.2.1.4.3.1Operating and maintenance expenses of fleet vehicles, except vehicle licence fees, routine procurement of vehicle supplies for the sole purpose of accumulating an inventory of items (e.g., batteries, tires, oil, filters, spare parts) or when a fleet credit card is not accepted by a supplier;
B.2.2.1.4.3.2Travel status-related expenses;
B.2.2.1.4.3.3Obtaining cash advances; and
B.2.2.1.4.3.4Interdepartmental transactions, except for transactions with CORCAN, which is a special operating agency of Correctional Service Canada;



			
				Halifax Tar said:
			
		

> The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.



Any purchase that is contrary to our regulations should be documented and the various email chains and permissions should be put on the contracting/purchase file.


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## Gunner98 (17 Apr 2017)

Same link but more definitive,

Cardholders are responsible for the following:
B.2.2.4.1  Ensuring that their name appears on the card, and that they are the only one who uses it *to make authorized government business-related purchases of goods and services*, subject to the requirements and established limits in the departmental delegation of spending and financial authorities documents;


In what way are the "civilian clothing...for members of the regiment." government business-related purchases?  Unless the Cpl and QM are members of a CSOR, IO or HUMINT-like unit in which the members wear civilian clothes to perform operational tasks.


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## MJP (17 Apr 2017)

Simian Turner said:
			
		

> Same link but more important,
> 
> Cardholders are responsible for the following:
> B.2.2.4.1  Ensuring that their name appears on the card, and that they are the only one who uses it *to make authorized government business-related purchases of goods and services*, subject to the requirements and established limits in the departmental delegation of spending and financial authorities documents;



I don't think anyone is arguing that the purchase has to be duly authorized, the TB isn't going to care that we bought textiles (clothing in the OP's example) as there are no TB restrictions on that form of usage.  We would care if a unit had a habit of just going out and buying go faster multicam pants because it circumvents DND (or below see CANARMYGEN 022/10) regulations.  If that unit had a requirement for go faster pants and had authority for their purchase then there are no issues.  One can argue that there are better procurement methods out there for these sorts of things but at the end of the day the Acq card usage isn't the issue but the procurement method.  Acq Card is merely the payment tool.

On the financial side of the house regardless of the purchase all fiduciary responsibilities have to be fulfilled (Sect 32, Procurement Initiation & Contract Authority) regardless of what is being bought.  

To play the extreme case if I was a Cpl that had a Acq Card and I was ordered to go buy civilian clothes, I would ask for substantiation.  If there was none except "go buy that shit Cpl" then I would ask for that in writing and place it on the procurement file and go buy the crap.  The person doing the ordering is going against regulations not law and I am sure one could try and lay some form of charge the AJAG will laugh the file away (assuming that the procurement was truly for the unit not for someone's personal gain).  The more likely scenario is if caught there will be slaps on the wrist all around and at most loss of DOA or a more restricted one.  More likely is a sternly worded PPV letter that the CO will have to respond back to the RDAO saying "mea culpa and I won't do it again".   Not that I have seen such things happen or anything... :nod: 



			
				Simian Turner said:
			
		

> In what way are the "civilian clothing...for members of the regiment." government business-related purchases?  Unless the Cpl and QM are members of a CSOR, IO or HUMINT-like unit in which the members wear civilian clothes to perform operational tasks



OP provided no real context but I have seen a few cases were such purchases were duly authorized.  Generally it is handled through a claims process much like nurses/dental footwear but in extremis Acq cards were used because they are just payment tools.


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## Gunner98 (17 Apr 2017)

MJP, 

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

"So what happens if Cpl A is a stickler for the rules and puts his/her foot down?"  

Hal Tar:  Do we really need to be specific about this, if so here goes...

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 shit 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.


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## Halifax Tar (17 Apr 2017)

MJP said:
			
		

> Any purchase that is contrary to our regulations should be documented and the various email chains and permissions should be put on the contracting/purchase file.



And that is basically how I have seen LPO sections get around the regulation.  Document the corresponding and supporting documents.  So in essence it is a lawful command as long as it has been duly substantiated along with the appropriate level of authority's approval. 

Good to know.  I don't have much of an LPO back ground, spent most of my time at sea and in QMs.  

I appreciate your input, thank you.


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## Halifax Tar (17 Apr 2017)

Simian Turner said:
			
		

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



Good points.  Appreciate your input.


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## Halifax Tar (17 Apr 2017)

the 48th regulator said:
			
		

> Funny, when I say it, I am told to go to the pot threads.
> 
> I wonder what threads you will be told to go post in...  :-\
> 
> ...



48th, 

I appreciate your input.  I am inexperienced in the world of LPO, I was looking for honest assistance to what I saw as a situation that could develop in an area that I am now working.  What I don't appreciate is the condescension and internet bravado tone your posts took.  Perhaps if you could have presented your info, without said tone, I wouldn't have responded the way I did.


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## Halifax Tar (17 Apr 2017)

Simian Turner said:
			
		

> In what way are the "civilian clothing...for members of the regiment." government business-related purchases?  Unless the Cpl and QM are members of a CSOR, IO or HUMINT-like unit in which the members wear civilian clothes to perform operational tasks.



In my current unit the underlined section of your above post does happen.  The members do have a reasonable requirement (IMHO) for civilian attire as the issued clothing is either unavailable, doesn't exist or is wholly inadequate.  

Thanks for your help that does clear things up allot for me.


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## MJP (17 Apr 2017)

Simian Turner said:
			
		

> 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.



			
				Simian Turner said:
			
		

> 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).  



			
				Simian Turner said:
			
		

> 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.


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## Navy_Pete (17 Apr 2017)

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?


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## sandyson (17 Apr 2017)

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?


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## MJP (17 Apr 2017)

Navy_Pete said:
			
		

> 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.



			
				Sandyson said:
			
		

> 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.


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## ModlrMike (17 Apr 2017)

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.


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## Navy_Pete (17 Apr 2017)

ModlrMike said:
			
		

> In my unit, the conversation would go something like this:
> 
> LS X, please go out and buy (whatever)
> 
> ...



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.


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## Halifax Tar (18 Apr 2017)

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.


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## SupersonicMax (18 Apr 2017)

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.


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## Gunner98 (18 Apr 2017)

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


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## Kat Stevens (18 Apr 2017)

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?


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## ModlrMike (18 Apr 2017)

Kat Stevens said:
			
		

> 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.


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## MJP (18 Apr 2017)

ModlrMike said:
			
		

> 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).



			
				ModlrMike said:
			
		

> 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.


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## SupersonicMax (18 Apr 2017)

Simian Turner said:
			
		

> 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?


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## dapaterson (18 Apr 2017)

SupersonicMax said:
			
		

> 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.


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## SupersonicMax (18 Apr 2017)

Simian Turner said:
			
		

> 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.  



> 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.


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## Lumber (19 Apr 2017)

SupersonicMax said:
			
		

> 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


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## Pusser (19 Apr 2017)

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.


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## Lumber (19 Apr 2017)

Pusser said:
			
		

> 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?


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## Good2Golf (19 Apr 2017)

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


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## Lumber (19 Apr 2017)

Good2Golf said:
			
		

> ....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?


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## Halifax Tar (19 Apr 2017)

Lumber said:
			
		

> 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.


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## Good2Golf (19 Apr 2017)

Lumber said:
			
		

> 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


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## Pusser (19 Apr 2017)

Lumber said:
			
		

> 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?
> 
> ...



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.


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## Lumber (19 Apr 2017)

Pusser said:
			
		

> 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!


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## Good2Golf (19 Apr 2017)

Halifax Tar said:
			
		

> 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 ass 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


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## childs56 (19 Apr 2017)

Lumber said:
			
		

> 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!



That would be interesting if in fact it was true. 
The assumption that a order to shoot "civilians" assumes that they are civilians and not combatants to which the person giving the order may be privy to and not in a position or time to relay all the info. 

As for breaking the law in terms of" financial" reasons those follow federal laws on appropriate spending of public funds. So a order which contravenes  any QR&O or federal financial laws would be chargable not under the CSD but also Civilian. When a person signs for that LPO Card etc they must fully understand their legal responsibilities with that card. Just because people get away with spending outside of the rules does not make it legal. 
A case could be made in the case of an emergency to use the card outside of its intended use. But you would have to ensure the justification of its use did constitute an actual emergency with no other means to aquire the assets. 

Take a room of 10 JAG Officers and ask the question and you will get 10 different spin offs of the answer.


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## Good2Golf (19 Apr 2017)

Furthermore, and I'm sure (or hope) that JAG types will back me up (I think I was paying attention during the multiple POCs I took over the course of my career), but my understanding was the "manifestly unlawful" pertains more to 'Rule of Law' situations, which in many cases are not based on law, per se, but compliance with conventions, precedent from previously accepted conduct, and in some cases the application of individual Nation's criminal codes, etc.   F.A.A. contravention is not "manifestly illegal", it's just illegal...full stop.

Regards

G2G


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## Blackadder1916 (19 Apr 2017)

Lumber said:
			
		

> 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!



In the absence of a learned ambulance chaser, I'll (_comfortably ensconced in the memory of a barracks room_) post this link in which a military judge weighed in on the question and quoted a precedent.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB


> [35]           The Court Martial Appeal Court stated at paragraph 12 of the R v Matusheskie 2009 CMAC 9 decision that:
> 
> ... Notes B and C of Article 19.015 of the QR&Os... reflects the fact that obedience to orders is the fundamental rule of military life.  [And] there must be prompt obedience to all lawful orders [unless the command is manifestly unlawful.]
> 
> ...



I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.


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## Lumber (19 Apr 2017)

Blackadder1916 said:
			
		

> In the absence of a learned ambulance chaser, I'll (_comfortably ensconced in the memory of a barracks room_) post this link in which a military judge weighed in on the question and quoted a precedent.
> 
> http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB
> I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.



So, if I adjust my scenario slightly, and add to the XO's "written order":

 "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 have reasons for carrying out with this acquisition; reasons which I am not at liberty to discuss with you.* 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 this change anyone's mind in following the order?


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## Good2Golf (19 Apr 2017)

Nope.

If it's that important, then the XO could put his signature on the Requisition. :nod:


Regards
G2G


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## ModlrMike (19 Apr 2017)

I get where you're going, but I don't think we have the ability to absolve others of wrong doing. We're all responsible for our actions, and if the purchaser knew that the direction from the XO contravened orders etc, then they would still likely be on the hook for following through. Again, the just following orders defence. 

I think that if you ask someone to do something, and they respond that they're prevented from carrying out your order due to XYZ direction, regulation etc, that should ring alarm bells for you.


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## Navy_Pete (19 Apr 2017)

Good LogOs play in the grey, but also need to have the intestinal fortitude to stop their superiors from being ass hats and doing something illegal or in contravention of regulations, which are generally all backed up by high level standing orders somewhere.  (ie there is a standing order for all RCN ships to meet or exceed Canadian environmental and other regulations (barring real operational necessities), even though most of it specifically excludes the military in it's preamble for application).

Similarily good operational commanders, 2 I/Cs etc should know better than to abuse whatever authority they may or may not have by virtue of a posting message.

Sometimes you need to tell the CO to get out of the engine room and let you work, and you need your LogOs to be able to bend the rules as req to make operations happen but trust them to keep you out of trouble.

Buying stuff you shouldn't now can cause major issues later if you start getting DOAs revoked/limited, so it's a huge pain, and anyone who is an XO should know better anyway.


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## donaldk (19 Apr 2017)

Nice discussion... unless this is something that has to happen within the hour - give your RDAO a call (if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial).  If you have done the homework/research and can explain it in 30s or less (also mention urgent operational requirement if indeed such is the case), the RDAO will let you know whether to go ahead and advise how to note your records accordingly.  They prefer this instead of *repeated*shenanigans getting caught on the PPV. Also, not all card holders have a DoA with section 32 or 34 authority (my unit card holder person doesn't but I and the LCdr do...).

P.S. If you are deploying (or a ship departing from home port) the rules change as your CO gains certain *standing* authorities (this is why they harp that financial authority matrix on the CDWT course).


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## Good2Golf (19 Apr 2017)

donaldk said:
			
		

> ...(if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial)...



^ this. Speed dial isn't just for your DJA.  :nod:


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## Gunner98 (20 Apr 2017)

Barrack room lawyer with access to QR&Os replies with:

QR&O 19.015 - LAWFUL COMMANDS AND ORDERS

Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer.

(M)

NOTES

(A) The expression "superior officer" includes a non-commissioned member. (See article 1.02 - Definitions.)

(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

(C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child.

19.02 - CONFLICTING LAWFUL COMMANDS AND ORDERS

(1) If an officer or non-commissioned member receives a lawful command or order that he considers to be in conflict with a previous lawful command or order received by him, he shall orally point out the conflict to the superior officer who gave the later command or order.

(2) If the superior officer still directs the officer or non-commissioned member to obey the later command or order, he shall do so.


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