Service members increasingly work in joint and interagency settings where the person giving day-to-day direction is a civilian. A Department of Defense civilian employee, a contractor lead, or a civilian agency official may run a program a uniformed member supports. When a service member declines to follow an instruction from that civilian, the question arises whether Article 92 of the Uniform Code of Military Justice reaches the refusal. The answer depends less on the civilian’s status and more on the nature of the directive and the source of the member’s duty to obey. Article 92 can apply, but usually not because the civilian personally issued an order in the military sense.
The three theories under Article 92
Article 92, UCMJ, codified at 10 U.S.C. section 892, contains three distinct offenses. The first is violation of or failure to obey a lawful general order or regulation. The second is failure to obey any other lawful order issued by a member of the armed forces whom the accused has a duty to obey. The third is dereliction in the performance of duties. Each theory has its own requirements, and a civilian directive fits some better than others.
Why a civilian’s instruction is usually not an “order” under the second theory
The second theory, failure to obey other lawful orders, is built around military authority. The order must be issued by a member of the armed forces, and the accused must have a duty to obey that person. The person giving the order need not be superior in rank, but the framework contemplates a military member in the chain who has authority over the accused. A civilian supervisor, however senior or however much practical control they exercise, is generally not a member of the armed forces and therefore cannot personally issue an “order” of the kind this theory punishes. A flat refusal to comply with a civilian’s verbal instruction, standing alone, usually will not support an Article 92 charge under the personal-order theory.
That does not end the inquiry, because the duty to comply with a civilian’s directive frequently comes from somewhere else.
How the directive can still be enforceable
The more common path to liability runs through the first and third theories. A lawful general order or regulation, or the published policies governing a joint command, will often require service members to comply with the lawful direction of designated supervisors, including civilian ones, in carrying out assigned duties. If such a general order or regulation is in effect, the accused has a duty to obey it, and the accused fails to comply, the refusal can be charged as a violation of a general order under the first theory. Notably, the first theory does not require that the accused have actual knowledge of the general order or regulation, because members are charged with knowledge of properly published general orders.
The dereliction theory provides another route. A service member who is assigned to support a joint program has duties attached to that assignment. Willfully or negligently refusing to perform tasks that fall within those duties can be dereliction under the third theory, regardless of whether the instruction came from a uniformed or civilian source. Here the charge is not that the member disobeyed a civilian, but that the member failed to perform a duty the member was obligated to perform.
Lawfulness and military purpose
Whatever theory the government uses, the directive must be lawful. Orders and regulations are presumed lawful, and the accused bears the burden of showing otherwise. Lawfulness turns on whether the directive has a valid military purpose, meaning it relates to activities reasonably necessary to accomplish a military mission or to safeguard the morale, discipline, and effectiveness of the unit. A civilian supervisor’s instruction that connects to mission accomplishment will generally clear this bar. An instruction that is purely personal, that exceeds the supervisor’s authority, or that directs an unlawful act would not, and refusal to follow an unlawful directive is not punishable.
The relationship and scope of authority matter
Because the duty to obey is the linchpin, the defense and the government will both focus on the precise scope of the civilian supervisor’s authority and on what published guidance governs the relationship. In a joint environment, command relationships are defined by directives, memoranda of agreement, and the orders that assigned the member to the task. Counsel should examine whether those documents actually delegate to the civilian the authority to direct the conduct at issue, whether the directive fell within that delegated scope, and whether the member had a duty rooted in a general order, regulation, or assigned duties to comply. A refusal outside the supervisor’s actual authority is harder to punish than a refusal to do something the member was plainly obligated to do.
Bottom line
Refusal to follow a civilian supervisor’s directive in a joint environment can be punished under Article 92, but ordinarily not on the theory that the member disobeyed the civilian’s personal order, because that theory requires an order from a member of the armed forces. The viable theories are violation of a lawful general order or regulation that requires compliance with designated supervisors, and dereliction in the performance of assigned duties. In every case the directive must be lawful and tied to a military purpose, and the government must trace the member’s duty to obey to a proper source. Service members facing such a charge should look closely at where the duty came from and whether the directive actually fell within the civilian supervisor’s authority.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.