Article 92 | Failure to Obey Order or Regulation

Facing an Article 92 Charge? Stress, confusion, and a damaged reputation can feel overwhelming. Don’t go it alone. Military Law Center can help.

Failure to Obey an Order or Regulation in the military can be catastrophic to your career, reputation, and retirement goals.  Even an allegation under Article 92 can trigger administrative or criminal consequences depending on the severity.  There are three methods in which the government can charge you for Article 92 allegations: 

1. Violation of or failure to obey a lawful general order or regulation;
2. Failure to obey other lawful order;
3. Dereliction in the performance of duties.

The government must prove the following elements at trial for failing to obey a lawful general order or regulation:

• That there was in effect a certain lawful general order or regulation;
• That the accused had a duty to obey it; and
• That the accused violated or failed to obey the order or regulation.

The prosecution must prove the following elements at trial for failing to obey other lawful orders:

• That a member of the armed forces issued a certain lawful order;
• That the accused had knowledge of the order;
• That the accused had a duty to obey the order; and
• That the accused failed to obey the order.

The Trial Counsel must prove the following elements for being derelict in the performance of duties:

• That the accused had certain duties;
• That the accused knew or reasonably should have known of the duties; and 
• That the accused was willfully, or through neglect or culpable inefficiency, derelict in the performance of those duties
  [In cases where the dereliction of duty resulted in death or grievous bodily harm, add the additional element.
• That such dereliction of duty resulted in death or grievous bodily harm to a person other than the accused.

The terms found within the elements above have specific definitions.  The following definitions apply:

Knowledge. 
Knowledge of a general order or regulation need not be alleged or proved as knowledge is not an element of the offense.  A lack of knowledge of a general order is not a defense.  Service members a presumed to know all general orders.

Knowledge for Other Lawful Orders: 
A service member must have actual knowledge of the order or regulation.  However, knowledge may be proved with circumstantial evidence.

Lawfulness of the Order. 
An order is presumed lawful.  A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.

Duty:
A duty may be imposed by treaty, statutes, regulation, lawful order, standard operating procedure, or custom of the Service.

Derelict:
A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably inefficient manner.

Failure to Obey a Lawful General Order

Service members are presumed to know all orders issued by a general or flag officer. However, service members often do not know about many of the general orders and regulations at their command and within their branch of service.

When a general officer issues an order changing the weekend liberty rules, a service member may not know about the change and choose to exceed the new liberty distances. In this simple example, a service member would have violated Article 92 because they traveled beyond the weekend liberty bounds.

A common Article 92 charge is for underaged drinking or driving over the legal limit with a BAC over .08% for a DUI. While Article 113 applies to on-base and off-base DUIs, each service has a general order or regulation preventing driving under the influence of alcohol or drugs.

Failure to Obey an Other Lawful Order

When a company commander issues an order to the company changing the curfew hours for barracks, the company commander is responsible for ensuring the service members have actual knowledge of the change. In this case, because the company commander is not a general or flag officer, the service members must be informed of the change. However, posting a sign at the barrack’s entrance stating the change could be enough circumstantial evidence to prove knowledge.

An accusation of failing to obey an order or regulation (Article 92) can have serious consequences, impacting your promotion potential, security clearance, and even benefits. We understand the stress and uncertainty you’re facing. At Military Law Center, our experienced attorneys will fight aggressively to protect your rights throughout the Article 92 process. We’ll explore all potential defenses and work tirelessly to minimize the impact on your military future.

An Article 92 charge can feel daunting to defend against, but there are potential defenses available to fight the accusation:

• Lacking Actual Knowledge:
  You were unaware of the order because it was never passed down to you via your chain of command.  This defense is only applicable to failing to obey other lawful orders (not issued by general or flag officers).
• The Order Does Not Apply to You: 
  In cases where an other lawful order does not apply to you, then it would be a defense to the charge.  For example, if an order to not drink alcohol on Fridays only applies to members of a particular unit and you from another unit just visiting, the order would not apply to you.
• Ineptitude:
  A service member is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency.
• The Order Was Illegal:
  Although there is a presumption that all orders are legal until proven otherwise, if you are asked to perform an illegal task, this could be a defense to your entire case.
• Voluntary Intoxication: 
  In a case where an Army Private was so intoxication he could not form the willfulness to violate the order, the Army Court of Military Review determined voluntary intoxication was a defense to the willfulness element.  While it is a question of fact at trial that must be supported by evidence, a skilled trial attorney will be able to raise this defense.  See United States v. Cameron, 37 M.J. 1042 (1993).

The maximum punishment for Article 92 depends on the status of the victim.

Failing to Obey a Lawful General Order or Regulation

Dishonorable Discharge (DD), two (2) years of confinement in a military brig, Total Forfeitures of Pay.

Failure to Obey Other Lawful Order

Bad Conduct Discharge (BCD), six months of confinement in a military brig, Total Forfeitures of Pay.

Dereliction in the Performance of Duties

Through Neglect or Culpable Inefficiency: Three (3) months confinement and two-thirds Forfeitures of Pay for up to three (3) months.

Willful Dereliction of Duty Resulting in Death or Grievous Bodily Hard: Dishonorable Discharge, two years confinement, total forfeitures of pay.

The maximum punishment for Article 92 listed in the Manual for Court-Martial is shown above.  But there can be some other punishments.  For example, a service member could also be punished with restriction, fines not to exceed the jurisdictional maximum, and punitive letters of reprimand.  Additionally, the criminal conviction itself may trigger collateral consequences later in life.

An Article 92 charge can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.

Facing an Article 92 charge can be a terrifying and stressful experience. At Military Law Center, our attorneys served in the military and understand the challenges you’re facing.  We’re here to help. Here’s what sets us apart:

• Experienced Military Defense Attorneys:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing Article 92 charges, and we know how to litigate the complexities of military justice.
• Personalized Attention:
  We treat every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defense options and work tirelessly to protect your career and future.
• Clear Communication:
  We understand legal jargon can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 92 Charges Alone. Military Law Center Can Help.

An Article 92 charge can stall your military career and damage your reputation. But you don’t have to fight this alone. Military Law Center has a proven track record of success defending service members facing these charges. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation. We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038