Article 92 of the Uniform Code of Military Justice is one of the most frequently charged offenses in the military justice system. It covers three distinct kinds of misconduct: violating or failing to obey a lawful general order or regulation, failing to obey other lawful orders, and being derelict in the performance of duties. Because so much of military life is governed by orders and regulations, Article 92 reaches a wide range of conduct, from disobeying a specific instruction to neglecting an assigned duty. The questions and answers below explain the three theories, the elements of each, the all-important requirement that an order be lawful, the defenses that may apply, and the consequences a service member can face.
The Three Theories
1. What does Article 92 prohibit?
Article 92 prohibits three things: violating or failing to obey a lawful general order or regulation, failing to obey any other lawful order, and dereliction in the performance of one’s duties. A single article thus covers three separate ways of committing an offense.
2. Where is Article 92 codified?
Article 92 is codified at 10 U.S.C. 892. It sets out the three theories of liability and provides that a person found guilty shall be punished as a court-martial may direct.
3. Why does Article 92 cover so much conduct?
Military operations depend on orders and regulations being followed and duties being performed. Article 92 gives commanders a means to enforce that framework across a wide variety of situations, which is why it is charged so often and in so many different contexts.
Violation of a General Order or Regulation
4. What are the elements of violating a general order or regulation?
The government must prove that a lawful general order or regulation existed, that the accused had a duty to obey it, and that the accused violated or failed to obey it. Notably, knowledge of the order is presumed for general orders and regulations.
5. What is a “general” order or regulation?
A general order or regulation is one that applies broadly and is issued by authority competent to make it apply throughout the command, service, or armed forces, rather than a specific instruction directed at one person. Service-wide regulations and broadly applicable command policies are typical examples.
6. Does the government have to prove the accused knew about a general order?
For a general order or regulation, the law treats the accused as charged with knowledge, so the government does not separately prove actual knowledge. This is a key difference from the failure-to-obey-other-orders theory, where knowledge must be shown.
7. Why is knowledge presumed for general orders?
Because general orders and regulations apply broadly and are publicized through official channels, service members are charged with knowing them. The presumption reflects the expectation that members will be familiar with the rules that govern everyone in their command or service.
Failure to Obey Other Lawful Orders
8. What are the elements of failing to obey another lawful order?
The government must prove that a member of the armed forces capable of giving a lawful order issued one, that the accused had knowledge of the order, that the accused had a duty to obey it, and that the accused failed to obey it.
9. How is this different from violating a general order?
The main differences are that this theory involves a specific order rather than a broadly applicable general order, and that the government must prove the accused actually knew of the order. Knowledge is not presumed here.
10. Who can give an “other lawful order”?
A member capable of giving a lawful order can issue one. This includes superiors in the chain of command and others with authority over the accused in the relevant context. Whether the person had authority to give the order is part of the analysis.
11. Does the order have to be in writing?
No. Orders can be oral or written. What matters is that a person with authority gave a lawful order, the accused knew of it, the accused had a duty to obey, and the accused failed to do so.
12. Must the accused actually know of the order?
Yes. Unlike a general order, this theory requires proof that the accused had knowledge of the specific order. If the accused did not know of the order, that can defeat this theory.
Dereliction of Duty
13. What is dereliction of duty?
Dereliction of duty is the failure to perform a duty one is required to perform, either because one knew of the duty or reasonably should have known of it, through willful misconduct, neglect, or culpable inefficiency.
14. What are the elements of dereliction of duty?
The government must prove that the accused had a certain duty, that the accused knew or reasonably should have known of the duty, and that the accused was derelict in performing it, whether willfully or through neglect or culpable inefficiency.
15. What does “willful” dereliction mean?
Willful dereliction means the accused intentionally failed to perform a known duty or intentionally did not carry it out. Willful conduct is treated more seriously than negligent dereliction.
16. What does dereliction “through neglect” mean?
Dereliction through neglect occurs when the accused failed to perform a duty through carelessness or inattention, rather than intentionally. Culpable inefficiency, which is inefficiency without a reasonable or just excuse, can also support dereliction.
17. How is dereliction different from disobeying an order?
Disobeying an order involves failing to comply with a specific directive, while dereliction involves failing to perform a duty that is part of one’s responsibilities. A person can be derelict without anyone having issued a particular order, because the duty itself creates the obligation.
18. Does dereliction require that the accused knew of the duty?
The accused must have known of the duty or reasonably should have known of it. Actual knowledge is not always required, because a duty the accused reasonably should have known about can support the charge.
Lawfulness of the Order
19. Why does the order have to be lawful?
Every theory under Article 92 that involves an order or regulation requires that the order or regulation be lawful. A service member cannot be convicted for disobeying an unlawful order, so lawfulness is a foundational requirement.
20. What makes an order lawful?
An order is lawful when it relates to military duty, is issued by someone with authority, and does not conflict with the rights of the person or with superior orders, statutes, or the Constitution. Orders are generally presumed lawful, but that presumption can be challenged.
21. Are orders presumed lawful?
Yes. Orders are generally presumed to be lawful, and a service member disobeys an order at the member’s peril. The presumption can be overcome, but the burden of showing an order was unlawful is significant.
22. Can a service member refuse a clearly unlawful order?
An order that directs the commission of a crime, or that is otherwise clearly beyond authority, is not a lawful order, and disobedience of such an order is not an Article 92 offense. Determining whether an order crosses that line is fact-specific and carries real risk for the member.
23. Can an order be unlawful because it serves no military purpose?
An order must relate to military duty. An order with no valid military purpose, or one that interferes with private rights without justification, may be challenged as unlawful. The connection to military duty is part of what makes an order enforceable.
Defenses
24. What defenses might apply to an Article 92 charge?
Defenses can include that the order or regulation was not lawful, that no general order or regulation actually applied, that the accused lacked the required knowledge of a specific order, that the accused had no duty, that the failure was not willful, neglectful, or culpably inefficient, or that the conduct simply did not occur as alleged.
25. Is lack of knowledge a defense for a specific order?
Yes. For failing to obey another lawful order, the government must prove the accused knew of the order. A genuine lack of knowledge can be a defense to that theory, although it is not available where knowledge is presumed for general orders.
26. Can inability to comply be a defense?
Yes, in appropriate cases. If the accused was genuinely unable to comply with an order or perform a duty for reasons beyond the accused’s control, that can negate culpability, depending on the facts and the theory charged.
27. Can a mistake about the order be relevant?
A reasonable mistake about the existence, content, or applicability of an order can be relevant, particularly where knowledge is an element. How much it helps depends on the theory and the circumstances.
Process and Forum
28. How are Article 92 violations typically handled?
Because Article 92 covers a wide range of conduct, violations are handled in many ways, from counseling and administrative action to nonjudicial punishment and court-martial. The seriousness of the conduct and command judgment drive the choice of forum.
29. What should a service member do if questioned about an Article 92 offense?
The member should invoke the right to remain silent under Article 31 and request to speak with a defense counsel before answering questions, rather than trying to explain or justify the conduct to investigators.
30. Can an Article 92 allegation affect a career even without a court-martial?
Yes. Even handled administratively, an Article 92 matter can result in nonjudicial punishment, adverse evaluations, reduction in grade, and separation proceedings, all of which can significantly affect a career.
Punishment and Consequences
31. What is the maximum punishment for violating a general order or regulation?
The Manual for Courts-Martial sets the maximum punishment for violating or failing to obey a lawful general order or regulation higher than for the other theories, including a dishonorable discharge, total forfeitures, reduction in grade, and confinement. The exact confinement figure should be confirmed in the current Manual.
32. What is the maximum punishment for failing to obey another lawful order?
The maximum punishment for failing to obey another lawful order is lower than for a general order, and can include a bad-conduct discharge, forfeitures, reduction in grade, and a shorter period of confinement. The current Manual should be checked for the precise figures.
33. What is the maximum punishment for dereliction of duty?
Dereliction of duty is punished according to whether it was willful or through neglect or culpable inefficiency, with willful dereliction treated more seriously. The maximums range accordingly and should be verified in the current Manual for the type of dereliction charged.
34. Why do the maximums differ among the three theories?
The maximums reflect the differing seriousness of the conduct. Violating a broadly applicable general order, ignoring a specific order, and being derelict in a duty are treated differently, and willful conduct is treated more harshly than negligent conduct.
35. Where can a service member get help with an Article 92 charge?
A service member facing an Article 92 allegation is entitled to free military defense counsel and may also retain a civilian attorney experienced in military justice. Because the consequences can include a punitive discharge, confinement, and a federal conviction, getting experienced counsel involved early is important.
A Final Word
Article 92 is a workhorse of military justice, reaching disobedience of general orders, disobedience of specific orders, and dereliction of duty. The lawfulness of the order, the question of knowledge, and the nature of the duty are the issues that most often decide these cases. Because orders are presumed lawful and disobedience carries real risk, a service member who believes an order is improper, or who is questioned about an alleged Article 92 violation, should remain silent about the events, request counsel, and get legal advice before deciding how to respond.
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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