When a service member is charged under Article 92 of the Uniform Code of Military Justice with failing to obey a lawful order, the defense will often argue that the order was not lawful. Lawfulness and reasonableness are closely linked, because an order that is arbitrary, has no military connection, or sweeps far beyond what the situation requires will struggle to qualify as lawful. Military courts evaluate these challenges using a defined set of standards rather than a free floating sense of fairness. Understanding those standards is the key to mounting an effective challenge.
Lawfulness is decided by the judge, not the panel
The first thing to know is procedural. The lawfulness of an order is not an element of the offense that the panel decides. It is a question of law resolved by the military judge. That means a reasonableness challenge is usually litigated through a motion or a request for instructions, and the judge determines whether the order can support a conviction at all. If the judge concludes the order was unlawful, the charge fails as a matter of law. If the judge finds it lawful, the panel still must decide the factual elements, such as whether the accused knew of the order and willfully or through neglect failed to obey it.
The presumption of lawfulness and who carries the burden
Military orders carry a presumption of lawfulness. The accused who challenges an order bears the burden of rebutting that presumption, and courts treat it as a demanding burden. The policy reason is straightforward. The armed forces cannot function if every member is free to weigh the wisdom of an order before deciding whether to comply. The general rule is that a member obeys first and seeks redress later, with a narrow exception for orders that are clearly beyond the pale. This presumption is the backdrop against which every reasonableness argument is measured.
The three core attributes of a lawful order
Courts look for three essential attributes when testing an order. First, the order must come from competent authority, meaning a person with the actual authority to issue it to this member. Second, the order must communicate a specific mandate to do or not do a specific act, so that a reasonable member can understand what compliance requires. Third, the order must relate to a military duty. Military duty is defined broadly to include all activities reasonably necessary to accomplish a military mission, as well as measures that safeguard or promote the morale, discipline, and usefulness of members of a command and that are connected with maintaining good order in the service. The reasonableness inquiry lives largely inside this third attribute, because an order with no genuine military purpose, or one that reaches into purely private matters, is not connected to military duty and therefore is not lawful.
What can make an order unlawful or unreasonable
Several recognized categories can defeat the presumption. An order is unlawful if it conflicts with the Constitution, a federal statute, or a lawful superior order, or if it exceeds the authority of the person who gave it. An order that directs the commission of a crime is unlawful. An order that has no valid military purpose, or that is given solely to satisfy a personal whim, is not connected to military duty. An order may also fail if it is so vague that a reasonable member could not understand what it required, because clarity is part of what makes an order enforceable. The further an order strays from a real military objective and the deeper it intrudes into a member’s private life, the weaker its claim to reasonableness becomes.
The narrow zone for refusing an order
Service members sometimes assume they may refuse any order they personally believe is wrong. The law is far more restrictive. To justify refusal without criminal exposure, an order generally must be manifestly or palpably unlawful on its face, such as an order to commit a war crime. An order that is merely questionable, inconvenient, or arguably unwise does not give a member license to disobey. This is why reasonableness challenges are usually raised as a legal defense at trial rather than as a justification for refusing in the moment. The member who guesses wrong about lawfulness and disobeys assumes significant risk.
How the New case illustrates the analysis
The reasonableness framework was tested in United States v. New, 55 M.J. 95 (C.A.A.F. 2001), where a soldier refused an order connected to wearing certain insignia for a peacekeeping deployment. The reviewing courts treated the order as lawful because it issued from competent authority, related directly to the military mission, and did not require the soldier to violate a higher law or surrender constitutional rights. The case shows the analysis in motion. The court did not ask whether the order was wise or whether the soldier sincerely objected. It asked whether the order connected to a legitimate military purpose and stayed within the bounds of law, which is the heart of the reasonableness question.
Building or defeating a reasonableness challenge
For the defense, a successful challenge usually identifies a specific defect: the issuing authority lacked power over this member or this subject, the order had no genuine military connection, the order conflicted with law, or the order was too vague to enforce. Bare disagreement with the order’s wisdom is not enough. For the government, the response is to anchor the order in a concrete military purpose and to show that it came from proper authority and gave a clear directive. Because the judge decides the issue as a matter of law, both sides build a factual record about the order’s origin, scope, and purpose so the judge can apply the lawfulness standards to it.
Bottom line
Reasonableness in an Article 92 case is not a standalone test. It is folded into the lawfulness inquiry that the military judge decides as a question of law. Orders are presumed lawful, the accused bears a heavy burden to rebut that presumption, and the decisive questions are whether the order came from competent authority, gave a clear mandate, and connected to a genuine military duty without violating higher law. An order that meets those requirements will be treated as reasonable and lawful even if the member thinks it unwise, while one that lacks a military purpose, exceeds authority, or is palpably illegal can be struck down.
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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