The armed forces run on more than written rules. Long-standing customs, unwritten expectations, and traditions of the service shape daily conduct in ways no regulation fully captures. A recurring question for service members facing discipline is whether those informal customs can become the basis for criminal liability under Article 92 of the Uniform Code of Military Justice even when they were never written down as an order or regulation. The answer is nuanced. A custom of the service can support a charge under Article 92, but only under specific conditions and with important limits that protect the accused.
The Three Theories Under Article 92
Article 92 actually contains three distinct offenses, and it helps to keep them separate. The first is violation of a lawful general order or regulation. The second is failure to obey any other lawful order. The third is dereliction in the performance of duties. Customs of the service rarely fit the first two theories, which depend on the existence of an actual order or written regulation. The custom question almost always arises under the third theory, dereliction of duty.
Dereliction of duty requires the government to prove that the accused had certain duties, that the accused knew or reasonably should have known of those duties, and that the accused was willfully derelict or derelict through neglect or culpable inefficiency in performing them. The key word is duties. The law recognizes that a duty can arise not only from a written regulation but also from a lawful order, from the responsibilities of a position, or from a custom of the service.
When a Custom Becomes an Enforceable Duty
This is where customs and traditions enter the picture. A duty under the dereliction theory can be imposed by custom of the service, meaning a practice so well established and uniformly observed that members of the force understand it as a binding expectation. In that sense, an unwritten custom can in principle ground a dereliction charge without any formal regulation behind it.
But not every tradition rises to that level, and the law draws careful boundaries. A custom must be long continued, certain and uniform, compulsory rather than merely optional, and consistent with law. A practice that is merely common, convenient, or occasionally followed does not qualify. A custom that conflicts with statute, regulation, or higher orders is not enforceable at all, because no custom can override the written law it must remain consistent with. Customs can also lapse. A tradition that has fallen out of observance loses its compulsory character and cannot support a charge.
The Knowledge Requirement Protects the Accused
Even where a genuine custom exists, the government must still prove the knowledge element. For dereliction the accused must have known, or reasonably should have known, of the duty. This requirement is a significant safeguard. A service member cannot be convicted for breaching an obscure or fading tradition that a reasonable member in the same position would not have recognized as a binding obligation. The more informal and unwritten the asserted duty, the harder it can be for the prosecution to show the accused had the required awareness.
This is also why vague appeals to professionalism or to the way things have always been done are insufficient. General language about standards or expectations does not by itself create a criminally enforceable duty. The government must identify the specific duty alleged, establish that it qualifies as a true custom of the service, and prove that the accused knew or should have known of it. Without that precision, a dereliction charge built on custom is vulnerable to challenge.
Practical Limits and Defense Considerations
In practice, prosecutors usually prefer to charge dereliction based on written regulations, position descriptions, or explicit orders, precisely because customs are harder to prove with the required clarity. When a charge does rest on an unwritten custom, several defense avenues open up. Counsel can contest whether the asserted practice is truly uniform and compulsory rather than discretionary, whether it has lapsed through inconsistent observance, whether it conflicts with any written authority and is therefore void, and whether the accused had fair notice of it. Counsel can also test whether the alleged failure was willful or amounted to the neglect or culpable inefficiency the statute requires, since simple inadvertence or reasonable judgment calls may not meet the standard.
There is also a fairness dimension rooted in due process. Criminal liability generally requires that a person have fair notice of what conduct is prohibited or required. The more a charge depends on an unwritten and informal tradition, the more forcefully a defense can argue that the accused lacked adequate notice, which strengthens both the knowledge challenge and a broader argument that the asserted duty is too indefinite to enforce criminally.
Conclusion
Military customs and traditions are not legally toothless. Under the dereliction of duty theory of Article 92, a genuine custom of the service can create an enforceable duty even without a written regulation. But the path is narrow. The custom must be long established, uniform, compulsory, and consistent with law, and the government must prove the accused knew or reasonably should have known of the resulting duty and was derelict in a culpable way. Informal expectations, fading practices, and broad appeals to professionalism do not clear that bar. Anyone facing an Article 92 charge built on an unwritten custom should examine closely whether the asserted tradition truly meets these requirements, because that examination is often where the case is won or lost.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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