Poor Performance or Article 92 UCMJ?
Article 92 UCMJ is the Failure to Obey an Order or Regulation. The U.S. military considers it a dereliction of duty when soldiers are unable or unwilling to perform the job assigned to military personnel. Article 92 is one of the punitive articles of the UCMJ. Although the military can try by court-martial someone accused of violating the article, the military tends to reserve court-martial cases to more serious offenses like sexual assault.
Those suspected of violating this article by failing to obey orders or regulations or dereliction of duty 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 an admin separation board, or AdSep, or a board of inquiry for officers.
When someone intentionally fails to perform their duty, they are considered derelict. Also, suppose a person needs an excuse to complete their tasks. In that case, the command may regard the person’s poor performance as 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.
Defenses to Article 92 UCMJ Allegations
Ignorance of the law is no excuse, as they say. However, if a service member is unaware of an order or regulation, they might have a good defense against prosecution. As mentioned above, military prosecutors must prove the service member had this knowledge.
We have had service members charged with Article 92, which has resulted in Boards of Inquiry. One of our clients allegedly ignored terrible behavior in his unit and failed to act. That officer had a solid defense because he couldn’t have known about the behavior. Mr. Kageleiry demonstrated the command’s faulty premise and poor investigation to the board members. The board voted to retain the officer.
Elements of Article 92 UCMJ
The command will consider the following key elements to Article 92 when alleging a service member has violated Article 92:
- Violation of a lawful general order or regulation: The individual must have violated a general order or regulation they had a duty to obey.
- Failure to obey other lawful orders: The individual must have known about the order, had a duty to follow it, and failed to do so.
- Dereliction in the performance of duties: The accused must have had specific responsibilities that they, through neglect or culpable inefficiency, failed to perform.
In 2011 United States v. Hayes, 71 M.J. 112 validated that (the elements of Article 92(3), UCMJ, dereliction of duty, are as follows: (1) that the accused had specific duties, (2) that the accused knew or reasonably should have known of the duties, and (3) that the accused was willfully, or through neglect or culpable inefficiency, derelict in the performance of those duties).
Lawful vs Unlawful Orders
The elements of Article 92 only apply if a supervisor or commander issues a lawful order. Orders or regulations that violate the Constitution, the laws of the United States, or legal superior orders are considered unlawful. If an officer gives an order without authority, that may also be unlawful.
Considering the conflict in Texas between the Texas Military Department and the Federal Border Patrol, one may wonder whether the Texas Military Department will face allegations of issuing illegal orders now that three people have died in the area the Texas National Guard is responsible for.
Refusing Illegal orders is a defense to Article 92. A famous example is the One notable example is the My Lai Massacre during the Vietnam War. Lieutenant William Calley, a U.S. Army officer, and his unit were involved in the mass killing of unarmed South Vietnamese civilians. Some soldiers on the ground resisted or refused to participate in the massacre even though superiors ordered them to kill everyone in the village. Others reported the incident, leading to investigations and subsequent legal proceedings. The Army court-martialed LT Calley for his failure to resist an illegal order and leading his Soldiers in the massacre.
It’s important to note that refusing orders in the military can be complex, and the military has established procedures for addressing concerns about the legality or morality of orders. Soldiers are generally expected to follow lawful orders but are also responsible for refusing illegal or immoral orders.