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UCMJ: Article 92 is what you get for doing a bad job in the military. Failure to Obey an Order or Regulation  is a violation Article 92 of the Uniform Code of Military Justice (UCMJ). The U.S. military considers it a dereliction of duty when soldiers are unable or unwilling to perform the job assigned to military personnel.

What happens when you disobey orders or a regulation?

The military will investigate incidents of shirking duty, self-incapacitation leading to the inability to performs one’s duty, or dereliction of duty, which is a job performed so badly that others get killed or injured. Some examples are drunk on duty, sleeping on sentry duty, or failing to follow safety protocols leading to injury or death of others.

Elements of Article 92

The following key elements to Article 92 will be considered when someone is suspected of violating Article 92:

  • Violation of a lawful general order or regulation: The individual must have violated a general order or regulation that they had a duty to obey.
  • Failure to obey other lawful order: The individual must have known about the order, had a duty to obey it, and then failed to do so.
  • Dereliction in the performance of duties: The accused must have had certain duties that he or she, through neglect or culpable inefficiency, simply failed to perform.

What considerations do commanders take into account when suspecting that someone is derelict in their duties?

When someone intentionally fails to perform their duty, they are considered derelict. As well, if a person performs their duties so poorly without an excuse, then this may be considered a dereliction of duty under Article 92. Article 92 does not apply if a person is determined to be inept, however, the military is highly capable of training service members to standard before giving service members responsibilities so this would be an unusual circumstance.

What is considered a person’s duty?

The military maintains good order and discipline, readiness, well-being, and safety of the forces by establishing rules. These rules are communicated to the force in the following ways: standing operating procedure (SOPs), statutes, regulations, lawful orders, or even customs of the service.

UCMJ Article 92; Failure to obey orders or regulation; dereliction of duty

Convictions of Article 92 come down to the government’s proof that the service member had knowledge of duties. Even if the service member didn’t have direct knowledge of the duties, the government can prove with circumstantial evidence that the accused should have known about them. Considering the comprehensive training provided in training manuals, service customs, or witness testimony, the burden for the government is low to prove the service member should have known the rules.

In some cases, it can be a violation of Article 92 to not follow an order from someone who is not a superior officer, provided that the accused had a duty to obey the order, such as one issued by a sentinel or a member of the armed forces police.

What are common defenses to Article 92?

The elements of Article 92 only apply if orders were issued lawfully. Orders or regulations that violate the Constitution, the laws of the United States, or lawful superior orders are considered unlawful. If an officer gave an order that they did not have the authority to give, that may also be unlawful.

As the old trope goes ignorance of the law is no excuse. However, sometimes if a service member is unaware of an order or regulation, they might have a good defense against prosecution. As mentioned above, military prosecutors would have the burden of proving the service member had this knowledge.

Article 92 is one of the punitive articles of the UCMJ, which means that someone accused of violating the article can be tried by court-martial. However, the military tends to reserve court-martial cases to more serious offenses like sexual assault. Those suspected of violating Article 92 with a failure to obey orders or regulation, would more likely face adverse administrative action like an Article 15 or Captains Mast, a General Officer Letter of Reprimand, or GOMOR, potentially followed by a admin separation board, or AdSep, or a board of inquiry for officers.

Any person subject to this chapter on Article 92 who—

(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.

UCMJ Elements of Article 92.

(1) Violation of or failure to obey a lawful general order or regulation.

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

(2) Failure to obey other lawful order.

(a) That a member of the armed forces issued a certain lawful order;
(b) That the accused had knowledge of the order;
(c) That the accused had a duty to obey the order; and
(d) That the accused failed to obey the order.

(3) Dereliction in the performance of duties.

(a) That the accused had certain duties;
(b )That the accused knew or reasonably should have known of the duties; and
(c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

For more information on an Article 92 offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case, consult with an experienced military lawyer.

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