Sometimes a service member refuses an order because they believe carrying it out will hurt someone, whether the member, a fellow service member, or a third party. Under Article 92 of the Uniform Code of Military Justice, which punishes failure to obey a lawful order or regulation, that belief can support a defense, but only under specific conditions. A sincere fear of harm is not, by itself, a free pass to disobey. The strength of the defense depends on whether the order was lawful, how serious and immediate the threatened harm was, and whether the member had any reasonable alternative. This article walks through the possibilities.
What Article 92 Requires
Article 92 covers several related offenses, including violating or failing to obey a lawful general order or regulation, failing to obey another lawful order, and dereliction in the performance of duties. A common thread across the order-based theories is that the order must be lawful. A core element the government must establish is the lawfulness of the order, and an order that is not lawful cannot support a conviction. Whether an order is lawful is a question for the military judge to decide, and if the judge finds the order unlawful, the affected charge should be dismissed.
That requirement is the doorway through which several harm-based defenses enter.
When the Belief Goes to the Lawfulness of the Order
The strongest version of the defense is not really a separate excuse at all. It is an attack on the order itself. Orders must have a valid military purpose and must not direct the commission of a crime or otherwise exceed the authority of the person giving them. An order that requires a member to commit an illegal act is not a lawful order, and disobeying it is not an offense. If a member reasonably understood that compliance would require harming someone unlawfully, that understanding may show the order was unlawful, which defeats the charge directly.
It is important to be precise here. The mere fact that an order is dangerous does not make it unlawful. Military duties are inherently hazardous, and members can lawfully be ordered into harm’s way. The defense based on unlawfulness applies when the order would require unlawful harm, not when it merely carries risk.
The Defense of Duress
A separate possibility is the defense of duress, sometimes called coercion. Military law recognizes that a member may have a defense if they committed an offense, including disobedience, because of a well-grounded and reasonable fear that they or another person would be immediately killed or seriously injured if they did not act as they did. The fear must be of immediate and serious harm, not a speculative or remote risk, and the threat generally must come from a source that leaves no reasonable opportunity to avoid the harm without committing the offense. Duress is recognized as a potential defense to Article 92 charges, but it is demanding. A member who simply preferred not to take a risk, or who feared a generalized danger, will usually not satisfy the immediacy and seriousness the defense requires. There are also limits on using duress where the harm threatened is not greater than the harm the offense would cause.
Inability to Comply
A related but distinct point concerns physical or mental inability to perform. If a member genuinely cannot carry out an order, for example because of a physical limitation or a severe medical or psychological condition that prevents performance, that inability can negate the offense, because failure to obey implies the capacity to obey. This is not the same as choosing to disobey out of concern for harm, but it can overlap when the feared harm reflects a real incapacity. The factfinder examines whether the member was actually unable to comply rather than unwilling.
Why a Good-Faith Belief Alone Is Usually Not Enough
A member’s sincere but mistaken belief that compliance would cause harm does not automatically excuse disobedience. The lawfulness of an order is generally judged on an objective basis, and the duress defense requires an objectively reasonable and well-grounded fear of immediate serious harm. A member who disobeys based on a subjective concern that turns out to be unreasonable, or who had a reasonable way to raise the concern without flatly refusing, may still be convicted. The system expects members to use available means to question or clarify orders through the chain of command when circumstances permit, rather than to substitute their own judgment for that of a superior whenever they perceive risk.
How These Defenses Play Out in Practice
In a real case, defense counsel will examine which theory fits the facts. If the order would have required an unlawful act, the focus is on proving the order was not lawful, which the military judge decides. If a third party or an immediate deadly threat forced the member’s hand, the focus is on duress, with attention to immediacy, seriousness, and the absence of a reasonable alternative. If the member physically could not comply, the focus is on inability. The choice among these is fact-driven, and the same incident can support more than one theory in the alternative.
Conclusion
An accused can have a defense under Article 92 when they believed compliance would cause harm or injury, but the belief must be anchored to a recognized legal theory. If compliance would have required unlawful harm, the order may not be lawful, which defeats the charge. If the member faced an immediate and well-grounded threat of death or serious injury with no reasonable alternative, duress may apply. If the member was genuinely unable to comply, that can negate the offense. A sincere fear standing alone, without lawfulness problems, immediacy, or incapacity, is generally not enough. Because these defenses are technical and fact-specific, a member who refused an order out of concern for harm should consult qualified military defense counsel promptly.
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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