Violation of or failure to obey a lawful general order or regulation
Failure to obey other lawful order
Dereliction in the performance of duties
Article 92 creates 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 common in many prosecutions. It does not take very much effort for the government to find an allegation under Article 92 in most cases.
For charges related to violating or failing to obey lawful general orders or regulations, most defenses will focus on defects in the regulation. That particular provision does not require that the accused have specific knowledge of the order or regulation. In that regard, one of the only areas of attack is usually to attack defects in the regulation.
As a threshold matter, the regulation must apply to the accused and prohibit the conduct that the accused is alleged to have performed. In many cases, the order or regulation is intended to provide guidance. The regulation should specifically state that it is punitive. Counsel should note that the specification may be defective if it fails to specify the proper regulation or that the order is a general order. Counsel should also be careful to investigate whether any exceptions to the order or regulation exist.
Where the case involves violations of other lawful orders, a person with a status that imposes on the accused a duty to obey the order must have given the order. In that regard, the person giving the order need not necessarily be superior in rank. The key in these cases is sometimes attacking the knowledge element of the order. Cross-examination of government witnesses should frequently focus on the specificity of the order.
Orders are presumed to be lawful. Nonetheless, counsel may attach whether the order had a valid military purpose. That is, all activities reasonably necessary to accomplish a military mission. It can also include activities intended to safeguard or promote the morale, discipline, and usefulness of a unit. Order can involve prohibitions on private activity if they relate to any of the above.  Counsel must scrutinize the order to ensure that it is not an overly broad limitation on a personal right.
In dereliction of duty cases, the threshold question is whether the accused had a particular duty. The duty can be imposed by any number of sources, including custom of the service. The key, again, is that the accused must have had knowledge of the particular duty. Ineptitude can be a defense to allegations of willfulness, negligence, or culpable inefficiency. A defense of ineptitude will be largely fact-specific. Examine the duty, the training and abilities of the client, and the context in which he or she was asked to perform the duty.
The maximum punishment for a violation or failure to obey lawful general order or regulation is dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.
For 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 a 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 a willful dereliction of duty the maximum punishment is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
Lesser Included Offenses
The lesser-included offenses include only Article 80 – attempts.
 MCM, Pt. IV, ¶ 16a.
 MCM, Pt. IV, ¶ 16a.
 MCM, Pt. IV, ¶ 16a.
 United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982).
 United States v. Baker, 40 C.M.R. 216 (C.M.A. 1969).
 MCM, pt. IV, para. 14c(2)(a)(iii).
 United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999).
 Military Judges Benchbook, ¶ 3-16-1 – Violation General Order or Regulation.
Military Judges Benchbook, ¶ 3-16-2 – Violating Other Written Order or Regulation.
Military Judges Benchbook, ¶ 3-16-3 – Failure to Obey Lawful Order.
 Military Judges Benchbook, ¶ 3-16-4 – Dereliction of Duty.
Here is a summary of cases provided by the Court of Appeals for the Armed Forces:
2017 (October Term)
United States v. Blanks, 77 M.J. 239 (under the UCMJ, a servicemember who is derelict in the performance of his duties shall be punished as a court-martial may direct; although the statute does not explicitly identify a mens rea for this offense, negligence is an authorized level of mens rea for an Article 92(3), UCMJ, dereliction of duty offense).
(dereliction of duty is a uniquely military offense specifically intended by Congress to ensure the proper performance of duty within the military service; servicemembers’ military duties relate to activities which are reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and are directly connected with the maintenance of good order in the services; thus, the dereliction of duty offense promotes good order and discipline in the military; in light of the military nature of the offense and its limited authorized punishment, a negligence mens rea standard is appropriate for certain dereliction offenses).
(military law maintains obedience and discipline to ensure that servicemembers are ready to perform their mission; a negligent dereliction of duty offense provides commanders with one means to assure that the objectives of the military mission are achieved by holding servicemembers accountable for performance of their military duties whether by court-martial or nonjudicial punishment under Article 15, UCMJ).
United States v. Pugh, 77 M.J. 1 (the offense of dereliction in the performance of one’s duties requires that the following elements be proven: (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 or through neglect or culpable inefficiency derelict in the performance of those duties; the duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service; a lawful military order must: (1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn; to have a valid military purpose, an order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service).
United States v. Haverty, 76 M.J. 199 (when construing an order — a violation of which underlies an Article 92, UCMJ, offense — commanders should be held to the same standard as legislatures when determining whether they intended to create an offense that does not require the government to prove an accused’s mens rea; that is, they must speak with a clear voice on the matter; when a commander fails to do so, the criminal offense is interpreted as including broadly applicable scienter requirements; accordingly, in such cases, the proper level of mens rea is only that necessary to separate wrongful conduct from otherwise innocent conduct).
(in order for conduct to be prosecuted for an Article 92, UCMJ, violation as hazing under Army Regulation 600-20, that conduct must consist of any form of initiation rite of passage or congratulatory act).
(the minimum mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing is recklessness).
(the elements of hazing under AR 600-20 are as follows: (1) conduct (2) that unnecessarily causes another (3) to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; recklessly is the sufficient mens rea for this offense; pursuant to this mens rea requirement, in order for an accused to be convicted under Article 92, UCMJ, for a violation of AR 600-20 para. 4-20, the accused must have consciously disregarded a known risk that his or her conduct would unnecessarily cause another military member or employee to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful; in this regard, a servicemember who honestly believes that an activity is not cruel, abusive, oppressive, or harmful could not be held criminally liable; the recklessness standard is sufficient to separate wrongful conduct from innocent conduct in prosecutions under AR 600-20 para. 4-20).
United States v. Gifford, 75 M.J. 140 (the elements for violating a lawful general order under Article 92, UCMJ, where the general order prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption required the government to prove both that (a) appellant provided alcohol with the intent that it be consumed and (b) appellant knew that the individuals to whom he was providing the alcohol were under 21 years of age; the general order at issue required the government to prove appellant’s mens rea (guilty mind) with respect to the age of the recipients of the alcohol, and at a minimum the government was required to prove, at a minimum, that appellant acted recklessly in this regard).
(the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status). \
(on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent).
(the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, Congress may purposefully omit from a statute the need to prove an accused’s criminal intent, and courts are then obligated to recognize this congressional intent and conform their rulings accordingly; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment).
(it is true that actual knowledge of the existence of a general order is not typically required under Article 92, UCMJ; however, this tenet merely reflects the long-recognized maxim ignorantia juris non excusat— ignorance of the law excuses no one; the fact that actual knowledge of a general order is typically immaterial does not conflict with the coordinate truth that mens rea typically is an essential element of every criminal offense; this case involves a mistake of fact as to age, not a mistake of law, and as the Supreme Court in Elonis v. US, 135 SCt 2001 (2015), held, an accused generally must know the facts that make his conduct fit the definition of the offense).
(whether mens rea is a necessary facet of the crime is a question of legislative intent to be construed by the court; if such an intent can be identified, courts must construe the relevant statute accordingly).
(in this case, in issuing a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption, the commander, acting pursuant to his congressionally delegated authority under Article 92, UCMJ, did not create a public welfare offense through his general order where he did not explicitly indicate his intention to create a public welfare offense and there was no other basis to conclude that this general order, which stands mute on the subject, was intended to override the traditional call of criminal law that wrongdoing must be conscious to be criminal).
(the CCA erred in concluding that a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption did not include a mens rea requirement with respect to age where (1) a mens rea requirement is the rule rather than the exception in criminal offenses, even in those instances when a statute is silent on that point, (2) there was a lack of any overt evidence that the commander intended to create a public welfare offense, and (3) such an intent on the commander’s behalf cannot be inferred, given the historical context of alcohol offenses, the underlying character of the offense, and the gravity of the punishment; in other words, the proper legal standard the CCA was obligated to apply in the course of its Article 66(c), UCMJ, review of appellant’s conviction for violating a general order was whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol were under 21 years of age).
(the level of mens rea that the CCA should have used in the course of its Article 66(c), UCMJ, review of a conviction for violating a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption was recklessness where (1) recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct, (2) intuiting recklessness into the general order is the greatest stride a court can take before stepping over the line that separates interpretation from amendment, and (3) both the Model Penal Code and state courts across the country confirm the propriety of a recklessness standard in this context).
2014 (September Term)
United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid).
(a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy).
(in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose).
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