A recurring battleground in Article 92 litigation is whether a particular regulation can support a criminal conviction at all. Article 92 of the Uniform Code of Military Justice, found at 10 U.S.C. 892, allows prosecution for violating a lawful general order or regulation. But not every regulation a service member breaks is enforceable through a court-martial. Many regulations are administrative or guidance documents meant to organize work, not to define crimes. Courts therefore ask a threshold question: is the regulation punitive? If it is not, a violation cannot be the basis for an Article 92 conviction, no matter how clearly the member breached it.
Why the Punitive Question Exists
The military issues an enormous volume of regulations covering everything from uniform standards to safety procedures to administrative reporting. If every one of these could be charged as a crime, ordinary administrative failings would become criminal offenses. To prevent that, military law distinguishes between regulations that merely guide conduct and those that are intended to be enforced by criminal sanction. A regulation is punitive only if it was designed to impose criminal liability for its violation. When a regulation is purely administrative or advisory, the proper response to a breach is administrative or corrective action, not court-martial.
Looking First at the Text and Intent of the Regulation
The most direct way a regulation signals that it is punitive is by saying so. Many service regulations contain an express statement that violations are punishable under the UCMJ, often identifying Article 92 specifically. Such language is strong evidence that the issuing authority intended the regulation to be enforceable by court-martial. Conversely, when a regulation contains no punitive language and reads as guidance or policy, courts are far less willing to treat it as a basis for criminal liability. The inquiry begins with whether the drafting authority manifested an intent to regulate conduct in a way that carries criminal consequences, rather than simply to direct or advise.
The Castillo Framework
The leading modern analysis comes from United States v. Castillo, 74 M.J. 160, decided by the Court of Appeals for the Armed Forces. Castillo drew on the framework the Supreme Court has used to separate regulatory measures from punishment, identifying a set of considerations courts weigh. These include whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether it serves the traditional aims of punishment such as retribution and deterrence, whether it applies to behavior that is already a crime, whether it serves an alternative noncriminal purpose, and whether it is excessive in relation to that alternative purpose.
Castillo cautioned that this is not a mechanical checklist. The court stressed that the core inquiry is not a formulaic application of multifactor tests, but rather whether the challenged provision is grounded in a valid regulatory purpose as opposed to a punitive one. The factors are tools to illuminate that central question, not boxes to tick.
Applying the Considerations
In practice, a regulation that tracks conduct already prohibited by criminal law, that operates only when a culpable mental state is present, and that exists primarily to punish and deter looks punitive. A regulation that addresses operational efficiency, recordkeeping, or resource management, and that serves a clear administrative goal, looks regulatory even if a breach is serious. Courts examine the regulation as a whole, its stated purpose, and the practical effect of treating its violation as a crime. The presence of an express punitive statement weighs heavily, but its absence is not always fatal if the regulation otherwise functions as a criminal prohibition.
The Interaction With Mental State
The punitive analysis often overlaps with questions of mens rea. In United States v. Gifford, 75 M.J. 140, the Court of Appeals for the Armed Forces emphasized that mens rea is the rule rather than the exception, and that courts will read a culpable mental state into an order or regulation unless there is a clear indication that strict liability was intended. The court declined to treat a general order as a public welfare offense imposing liability without fault where there was no basis to conclude the issuing authority meant to override the traditional principle that wrongdoing must be conscious to be criminal. This reasoning connects to the punitive question because a regulation that operates only on a finding of scienter is more readily seen as punitive, while one that the government tries to enforce as a no-fault rule invites close scrutiny.
Practical Consequences for an Accused
For a service member facing an Article 92 charge, the punitive determination can be dispositive. If defense counsel can show that the regulation underlying the charge was administrative or advisory rather than punitive, the specification can be dismissed because it fails to state an offense. This is why litigation often focuses on the regulation’s language, its publication history, the authority that issued it, and the purpose it was meant to serve. A regulation that lacks punitive intent cannot be converted into a criminal statute simply because the conduct was undesirable.
A Threshold That Protects Fair Notice
The punitive requirement ultimately serves fairness. Service members are entitled to know which directives carry criminal exposure and which are merely instructions for orderly operation. By requiring that a regulation be genuinely punitive before it can support an Article 92 conviction, courts keep the criminal law focused on conduct the military has actually chosen to criminalize. The Castillo considerations, read alongside the mens rea principles of Gifford, give military judges a disciplined way to make that determination, weighing the regulation’s text, purpose, and effect rather than assuming that any rule may be enforced through court-martial.
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.