Dereliction of duty is charged under Article 92 of the Uniform Code of Military Justice, which addresses, among other things, a service member’s failure to perform a known duty. A recurring defense question is what happens when the command never put the relevant expectations in writing. If a member is accused of being derelict in a duty that was never reduced to a written order, regulation, or standard, does the absence of written guidance defeat the charge? The answer turns on how the elements of dereliction are evaluated, and in particular on the knowledge element, which becomes the focal point whenever the duty’s existence and communication are in question.
The Elements of Dereliction of Duty
To sustain a dereliction of duty allegation, the government must prove three things. First, that the accused had a certain duty. Second, that the accused knew of the duty or reasonably should have known of it. Third, that the accused was derelict in performing that duty through willfulness, neglect, or culpable inefficiency. Each element is essential, and the absence of any one of them defeats the charge. The first two elements, the existence of the duty and the member’s knowledge of it, are where the lack of written expectations matters most. The third element addresses how the member failed, while the first two address whether there was a duty the member was bound to know and perform.
A Duty Need Not Be in Writing
The threshold point is that a duty under Article 92 does not have to come from a written document. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or the custom of the service. This means that the absence of written expectations is not automatically fatal to a dereliction allegation. A duty can arise from an oral order, from established practice in a unit, or from the customary obligations of a particular position. A service member cannot necessarily escape a dereliction charge simply by pointing out that no one handed them a written standard, because the source of the duty may be unwritten yet still genuine. The government can attempt to prove the duty through testimony about orders given, practices followed, or the inherent responsibilities of the member’s role.
Why Knowledge Becomes the Central Issue
Although a duty need not be written, the government must still prove that the accused knew of the duty or reasonably should have known of it. This is where the failure to provide written expectations does its real work in the analysis. When expectations are documented, the command can readily show that the member was on notice. When expectations were never written down, the government must establish knowledge by other means, and this becomes considerably harder. The prosecution must point to evidence that the duty was communicated, demonstrated, or so well understood within the unit that the member reasonably should have known of it. If the only proof of the duty is the command’s after-the-fact assertion that it expected something, without any showing that the expectation was conveyed or commonly understood, the knowledge element is vulnerable.
The “Reasonably Should Have Known” Standard
The knowledge element is satisfied not only by actual knowledge but also by what the member reasonably should have known. This constructive knowledge standard is significant when written expectations are absent. Even without a written directive, a member may be charged with knowing a duty that is obvious from the nature of the position, that was the subject of training, or that reflects long-standing unit practice. The evaluation becomes fact-specific. A board or court-martial examines whether a reasonable service member in the same position, with the same training and experience, would have understood the duty to exist. The more the duty depends on specialized or non-obvious expectations that were never communicated, the weaker the argument that the member reasonably should have known of it.
How the Lack of Written Expectations Shapes the Defense
When the command failed to provide written expectations, the defense concentrates on the duty and knowledge elements. Counsel argue that no clearly defined duty existed, that whatever expectation the command now points to was never communicated, and that the member neither knew nor reasonably should have known of it. The defense may show that the unit lacked any established practice on the point, that training did not cover it, and that the expectation surfaced only after the alleged failure. These arguments attack the foundation of the charge rather than merely excusing the conduct. If the government cannot prove a defined, known duty, the dereliction theory collapses regardless of how the member actually performed.
Distinguishing Negligence in Performance From a Vague Duty
It is important to separate two different problems. One is whether the member performed a known duty adequately, which goes to the third element of dereliction through neglect or culpable inefficiency. The other is whether a clear duty existed and was known at all, which goes to the first two elements. The failure to provide written expectations primarily affects the second problem. A member who genuinely did not know what was expected, because the command never said so in any form, is differently situated from a member who knew the duty but performed it carelessly. Evaluators must be careful not to convert a command’s own failure to communicate expectations into a finding that the member was derelict, because dereliction requires a known or reasonably knowable duty, not merely an unmet command preference.
Willfulness Versus Neglect in This Context
The third element distinguishes between willful dereliction, where the member intentionally failed to perform a known duty, and dereliction through neglect or culpable inefficiency, where the failure was careless rather than deliberate. When written expectations are missing, a willful theory is particularly difficult to sustain, because willfulness presupposes a clearly known duty that the member chose to ignore. A neglect theory may remain available if the government can establish that the duty was reasonably knowable, but even there the absence of written guidance can support an argument that any failure was the product of confusion rather than culpable carelessness. The characterization affects both the strength of the case and the seriousness of any resulting punishment.
Practical Takeaways
The absence of written expectations does not automatically defeat a dereliction of duty allegation, because duties under Article 92 can arise from orders, standard operating procedures, or the custom of the service. What the absence of writing does is shift the entire contest to whether a defined duty existed and whether the member knew or reasonably should have known of it. The government must prove those elements with something more than a retrospective claim of expectation. For a service member facing such an allegation, the most productive course is to work with a qualified military defense attorney to scrutinize whether a clear duty was ever established and communicated, because a command’s failure to set written expectations often leaves the knowledge element exposed to serious challenge.
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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