Suppose that a soldier suffered a broken ankle in boot camp but the drill sergeant accused him of malingering and ordered him to march several miles like everyone else anyway.
Could such a soldier legally refuse?
If the soldier obeyed, and his broken bone worsened as a result, would the drill sergeant get court-martialed? What would he be charged with?
Sure.
This question is not as easily answered. Here, the details are important.
Filling in my own details and assuming that a soldier limps up to a drill sergeant the morning of a ruck march and says, “I fell off my bunk last night and broke my ankle! I can’t go on the road march.”
And then the drill sergeant says, “Well, I don’t understand why you didn’t just go to sick call this morning like you are supposed to, or why you didn’t tell the drill sergeant on duty last night when it happened, so I am going to assume you are just making up a bullshit excuse to not go on the ruck march. Grab your ruck and get in formation!”
And then the soldier says, “Drill sergeant, I can’t! My foot really is broken!”
Then the drill sergeant says, “I don’t have time to look at it and see if it is swollen or anything. I am just going to assume you are malingering because I don’t like fighting hypotheticals! Get your ass over to formation, it’s time to walk”
And then, the soldier does what he was told, and somehow actually walks with 60lbs of gear with a broken foot, and the foot gets even more broken because of it.
If that’s what you mean, the drill sergeant would be in trouble. It wouldn’t be a court-martial though. It would probably be nonjudicial punishment and relieved of duty or maybe just a General Officer Memorandum of Reprimand and relief of duty. It really depends a lot on how abusive the drill sergeant was being. Was the situation caused by abusive, tyrannical treatment or did the drill sergeant just make an ignorant mistake?
It’s not the Drill Sergeant’s determination. The Drill will send the soldier to the military medical facility (MMF). The appropriate medical personnel will examine the soldier and make a determination if the Soldier is actually injured or malingering.
It shouldn’t come up, but if the Drill were to order the soldier to march on a broken ankle, then that would be an unlawful order. Sick Call is during regular hours. If there’s an emergency, then the MMF, of course, is available for examination and treatment of the purportedly injured soldier.
Both individuals would be subject to non-judicial punishment or court-martial.
[ul][li]Drill Sergeant:[/li][list][li]Article 93: Cruelty and Maltreatment.[/li][li]Article 92: Failure to Obey Order or Regulation.[/ul][/li][li]Subordinate soldier:[/li][ul][li]Article 92: Failure to Obey Order or Regulation.[/ul][/list][/li]
You might wonder why the soldier could be charged for failure to obey an order or regulation while they’re carrying out the Drill’s unlawful order. That’s the key: the soldier should know that such an order is unlawful and is not to be obeyed.
Contrary to popular belief, neither soldier is guilty of violating Article 108: Military Property of United States-Loss, Damage, Destruction, or Wrongful Disposition. The soldier is not military property. Another popular misconception is that Article 134 (the General Article) gives a commanding officer carte blanche on dealing with members in their command, but that’s not correct; the Manual for Courts-Martial lists what acts can be charged under that article.
In the British Army what should happen is that the soldier would be sent straight to the MO, on a stretcher if necessary. If the MO found that the recruit was malingering, that would be the end of his military career.
If it was less clear cut, for example; the soldier limps up to the squad and complains of a sore ankle. It would be a judgement call. In my opinion, it is more likely that the NCO would be stopping the soldier from marching, not the other way around.
Officers and NCOs have a duty of care to the soldiers under them. The recent case, where some soldiers died on a march in very hot conditions, has brought that responsibility into sharp focus. The problem was not that the soldiers were forced to keep going - it was that they were not stopped.