ARTICLE 92 – FAILURE TO OBEY AN ORDER
Article 92 defines disobeying a direct order as 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.
Violation of or failure 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 .
Failure to obey other lawful order:
- That a member of the armed forces issued a certain lawful order;
- That the accused had knowledge of the order; and
- That the accused had a duty to obey the order; and
- That the accused failed to obey the order .
Dereliction 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) (through neglect or culpable inefficiency) derelict in the performance of those duties .
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 . The 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 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.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
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Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More
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