Service members are sometimes caught between commanders who read the same policy differently. One commander may treat a regulation as forbidding certain conduct, while another in the chain treats the same language as permitting it. When a member is then charged under Article 92 of the Uniform Code of Military Justice for failing to obey that order or regulation, the conflicting interpretations can directly undermine the charge. The reason lies in what Article 92 actually requires and in the due process principles that limit when disobedience can be punished.
What the Government Must Prove
To convict under Article 92 for violating a lawful general order or regulation, the government must show that a lawful order or regulation was in effect, that the accused had a duty to obey it, and that the accused violated or failed to obey it. Embedded in those elements are two vulnerabilities when commanders disagree about meaning: whether the directive was lawful and clear enough to enforce, and whether the accused had fair notice of what it required. Conflicting interpretations strike at both.
Vagueness and Fair Notice
The void-for-vagueness doctrine, grounded in the Fifth Amendment due process clause, asks whether the accused had actual knowledge of the order’s terms and was on fair notice of the conduct prohibited. A regulation must provide sufficient notice that a service member can reasonably understand that the conduct is proscribed. When commanders within the same organization genuinely disagree about what a policy means, that disagreement is strong evidence that the policy did not give clear notice. If trained leaders cannot agree on whether conduct is permitted, it is difficult to maintain that a subordinate should have known with certainty that the conduct was forbidden.
This does not mean every interpretive difference defeats a charge. Some disagreements are trivial or are resolved by the plain text. But where the conflict is substantive and the policy language is genuinely susceptible to both readings, the vagueness argument becomes powerful. A directive that is too ambiguous to enforce is not a lawful, enforceable order for Article 92 purposes.
The Specific-Mandate Requirement
A lawful order must be a specific mandate to do or not do a particular act. Vague expressions of preference or informal guidance usually do not qualify as orders at all. When commanders interpret a policy in opposite directions, it can indicate that the policy operated more as general guidance than as a clear, specific mandate. If the directive never crystallized into a definite command, an Article 92 disobedience charge premised on it is weak, although the same conduct might support a different theory such as dereliction.
Conflicting Orders as a Defense
A distinct problem arises when the conflicting interpretations are communicated to the member as actual orders. If one commander orders the member to act one way and another commander, reading the policy differently, orders the opposite, the member cannot comply with both. Conflicting orders can defeat willful disobedience, because a member cannot be punished for failing to follow an order when an equally authoritative order required the contrary. In that situation, the member’s choice to follow one lawful order rather than the other is not the culpable disobedience Article 92 targets. The defense must show that the orders genuinely conflicted and that the member reasonably could not satisfy both.
Mistake and Good-Faith Reliance
Conflicting command interpretations also bear on the member’s state of mind. Where a member reasonably relied on a superior’s interpretation that the conduct was permitted, that reliance can negate the knowledge or willfulness the offense requires, depending on how the charge is framed. A member who acted consistently with one commander’s articulated reading of the policy did not knowingly defy a clear command. The reasonableness of that reliance is a factual question, and it is strengthened when the relied-upon interpretation came from someone with apparent authority over the matter.
Lawfulness Through the Conflict
The presumption of lawfulness still applies, and the accused bears the burden of showing a directive was unlawful or unenforceable. But conflicting interpretations help the accused carry that burden. They support arguments that the regulation lacked the clarity a lawful directive requires, that it failed to give fair notice, that it was not a specific mandate, or that competing orders made compliance impossible. Each of these attacks the viability of the charge rather than merely excusing the conduct.
Practical Steps for the Defense
A service member facing an Article 92 charge in this setting should document the conflicting guidance carefully. Counsel will want to identify which commanders said what, when, and with what authority, and to preserve any written policy, emails, or counseling that reflect the divergent readings. The defense can then frame the case around notice and specificity, argue conflicting orders where applicable, and raise good-faith reliance on a superior’s interpretation. The goal is to show the panel or military judge that the directive was not the clear, lawful, well-understood mandate that Article 92 demands.
Conclusion
Conflicting interpretations of policy between commanders can significantly affect, and sometimes defeat, an Article 92 charge. They support vagueness and fair-notice challenges, suggest the directive was not a specific mandate, can create a conflicting-orders defense, and can negate the knowledge or willfulness the offense requires. Because the burden to show unenforceability rests on the accused, careful development of the factual record is essential. Any service member caught between commanders who read a policy differently should consult experienced military defense counsel to build these defenses.
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.
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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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