Article 92 of the Uniform Code of Military Justice (UCMJ) defines the offense of disobeying a direct order. It encompasses three types of offenses: violations or failures to obey lawful general orders or regulations, failures to obey other lawful orders, and dereliction of duty. Article 92 charges are commonly seen in various prosecutions, as it is relatively easy for the government to find an allegation under Article 92 in most cases.
If you are notified of an Article 92 action against you, contact attorney R. Davis Younts at once. Article 92 maximum punishment is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 3 months up to 24 months.
For charges related to violating or failing to obey lawful general orders or regulations, defenses often focus on defects in the regulation itself. It is important to note that this provision does not require the accused to have specific knowledge of the order or regulation. In these cases, attacking the defects in the regulation becomes a primary area of defense.
To establish the offense of violating or failing to obey a lawful general order or regulation, the following elements must be proven:
- There was a certain lawful general order or regulation in effect
- The accused had a duty to obey the order or regulation
- The accused violated or failed to obey the order or regulation
- Failure to Obey Other Lawful Orders
To prove the offense of failure to obey other lawful orders, the following elements must be established:
- A member of the armed forces issued a certain lawful order
- The accused had knowledge of the order
- The accused had a duty to obey the order
- The accused failed to obey the order
- Performance of Duties
For dereliction in the performance of duties, the following elements must be proven:
- The accused had certain duties.
- The accused knew or reasonably should have known of the duties.
- The accused was willfully or through neglect or culpable inefficiency derelict in the performance of those duties.
In cases involving violations of other lawful orders, the order must have been given by a person with the authority to impose a duty on the accused. The person giving the order does not necessarily have to be superior in rank. Challenging the knowledge element of the order is often a strategy in these cases, and cross-examination of government witnesses may focus on the specificity of the order.
Orders are presumed to be lawful, but it is still possible to challenge whether an order had a valid military purpose. This includes activities reasonably necessary to accomplish a military mission and those intended to safeguard or promote morale, discipline, and unit usefulness. Orders can also address prohibitions on private activity if they relate to the aforementioned purposes. Scrutinizing the order to ensure it is not an overly broad limitation on personal rights is essential.
In dereliction of duty cases, the threshold question is whether the accused had a particular duty. The duty can be imposed by various sources, including the customs of the service. It is crucial for the accused to have had knowledge of the specific duty. Ineptitude can serve as a defense against allegations of willfulness, negligence, or culpable inefficiency. The defense of ineptitude will depend on the specific facts of the case, including examining the duty, the client’s training and abilities, and the context in which the duty was performed.
UCMJ Article 92 Maximum Punishment
- The maximum punishment for a violation or failure to obey a lawful general order or regulation is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.
- For a violation of or failure to obey other lawful orders, the maximum punishment is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
- For dereliction of duty through neglect or culpable inefficiency, the maximum punishment is forfeiture of two-thirds pay per month for three months and confinement for three months.
- For willful dereliction of duty, the maximum punishment is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
Facing Article 92 charges for failure to obey an order or regulation? Contact Younts Law today for a free consultation.
About Davis:
Davis is a Christian, husband, homeschool dad, and JAG Defense providing strategic legal guidance and expert criminal defense to military, federal law enforcement, and other patriots.
