## Facts

- On April 4, 1967, U.S. Army soldiers operating in Vietnam captured a Vietnamese man later determined to be affiliated with the Viet Cong.
- During the same operation, the soldiers encountered two other Vietnamese nationals, including one located in a bunker and another believed to be a Viet Cong member sent to observe the unit’s location.
- The unit opened fire and threw grenades into bunkers during the engagement.
- One U.S. soldier was injured during the action.
- The unit requested and received approval for air evacuation of the injured soldier.
- Captain Ogg ordered Lieutenant Patrick, the platoon leader, to have the captured prisoner killed.
- Lieutenant Patrick passed that order to Staff Sergeant Walter Griffen to carry out.
- At the time of the shooting, the prisoner’s hands were bound behind his back; he was compliant and unarmed.
- Griffen and another soldier shot and killed the prisoner at close range with rifles.
- Griffen admitted participating in the killing but stated he acted under Patrick’s order and said he believed the killing was necessary for the safety of the soldiers.
- At trial, Griffen raised obedience to orders, asserting he acted in good faith, had no prior convictions in approximately eight years of service, faced a battle situation with limited time to consider the legality of the order, and showed remorse (including while testifying in a related proceeding).
- A court-martial convicted Griffen of unpremeditated murder.
- In related cases from the same incident, two officers charged in connection with the killing were acquitted, and two other soldiers received reduced sentences.
- Griffen appealed his conviction and sentence to the United States Army Board of Review.

## Issues

1. Whether obedience to a superior’s order can excuse a subordinate’s killing of a captured prisoner whose hands are bound and who is unarmed and compliant.
2. Whether the combat conditions and Griffen’s claimed good-faith reliance on the chain of command can defeat liability for unpremeditated murder for the close-range shooting of a restrained detainee.
3. Whether differing outcomes for other participants (acquittals of officers and reduced sentences for other soldiers) required appellate relief for Griffen.

## Decision

- The United States Army Board of Review affirmed Griffen’s unpremeditated murder conviction.
- The Board rejected Griffen’s superior-orders defense where the order directed the killing of a bound, unarmed, compliant prisoner.
- The Board concluded that the combat setting and Griffen’s claimed good faith did not excuse carrying out an order whose illegality would be apparent to an ordinary servicemember.
- The Board declined to grant relief based solely on the fact that other accused participants were acquitted or received lesser punishment.

## Legal Principles

- A servicemember may not avoid criminal responsibility by claiming obedience to a superior’s order when the order is clearly unlawful.
- An order to kill a captured, restrained, unarmed, compliant detainee is unlawful on its face; compliance may support a conviction for murder under the UCMJ.
- A claimed good-faith belief in the lawfulness of an order does not excuse conduct when the unlawfulness would be apparent to an ordinary person in the accused’s position.
- Combat stress and operational pressure may be considered in evaluating the surrounding circumstances, but they do not make an unlawful execution order lawful.
- Sentence differences among co-actors, without legal error affecting the appellant’s case, do not by themselves require an appellate reduction or reversal.

## Conclusion

In United States v. Staff Sergeant Walter Griffen, 39 C.M.R. 586 (1968), the Army Board of Review upheld Griffen’s unpremeditated murder conviction for shooting a captured Viet Cong-affiliated prisoner whose hands were tied behind his back and who was unarmed and compliant, holding that superior orders and asserted good faith did not excuse compliance with an unlawful order and that different outcomes for other accused participants did not warrant relief.
