If you’re serving in the military, you know the importance of following orders and regulations. It’s a cornerstone of military discipline and effectiveness. But what happens when superiors accuse you of failing to follow an order or regulation?

This is where Article 92 of the Uniform Code of Military Justice (UCMJ) comes into play.

Article 92 addresses the failure to obey orders or regulations in the military. It covers three main offenses: violating or failing to obey a lawful general order or regulation, failing to obey other lawful orders, and being derelict in performing duties.

Because military law can change, and interpretations can evolve, it’s always best to consult a practicing military law attorney for the most current and accurate information.

At National Security Law Firm, our lawyers focus on specific practice areas, ensuring each attorney has unique experience in their field. Our dedicated attorneys are mission-ready to handle your case.

Understanding Article 92: Disobeying Orders Guide

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Breaking Down Article 92: Operating in Bounds

Whether you’re a new recruit or a seasoned veteran, having a clear grasp of Article 92 can help you avoid potential pitfalls and ensure you’re always operating within the bounds of military law. Understanding Article 92 is not just about avoiding trouble; it’s about being a more effective and responsible member of the armed forces.

The Uniform Code of Military Justice is the foundation of military law in the United States. Enacted by Congress, it defines the military justice system and lists criminal offenses under military law, applying to all service members across all branches of the U.S. armed forces.

Article 92 is one of the punitive articles within the UCMJ. It specifically addresses violations related to obeying orders and regulations, which are fundamental to military discipline and effectiveness.

As part of the UCMJ, Article 92 provides the legal basis for enforcing compliance with lawful orders and regulations across all branches of the U.S. military, ensuring a standardized approach to maintaining order and discipline within the armed forces.

Article 92 covers three main areas:

  1. Violating or failing to obey a lawful general order or regulation
  2. Failing to obey other lawful orders
  3. Being derelict in performing duties

These offenses are broad, and it’s common for service members to be accused of multiple violations, which can lead to severe punishments. It’s important to know that even minor actions, like missing a salute, can technically be considered a violation of Article 92. This can sometimes result in charges being used unfairly against individuals.

Consequences

Article 92 violations can lead to court-martial trials for serious offenses. However, less severe cases may result in administrative actions.

By breaking down each component of Article 92, we provide you with a comprehensive understanding of its meaning for you as a service member. Let’s examine the key elements and how they apply to your military service.

  • Violating or Failing to Obey a Lawful General Order or Regulation

This part of Article 92 deals with orders or regulations that apply broadly across a military branch or the entire armed forces. For example, regulations about uniform standards or general conduct fall into this category.

Key points:

  • The order or regulation must be lawful.
  • You don’t need to know about the order to be charged with violating it.

Maximum punishment can include dishonorable discharge and up to two years of confinement.

  • Failing to Obey Other Lawful Orders

This section covers more specific orders, often given directly by a superior officer. Important details:

  • You must have known about the order.
  • The order must have been lawful.
  • You must have had a duty to obey it.

Maximum punishment can include bad conduct discharge and up to six months of confinement.

  • Dereliction in the Performance of Duties

This part of Article 92 concerns failing to carry out your assigned responsibilities properly. Crucial factors:

  • You must have known (or should have known) about your duties.
  • Dereliction can be willful or due to negligence.

Dereliction of duty encompasses many situations and can serve as a broad charge when specific orders cannot be proven. Actual knowledge of duties is necessary for this offense, but if the accused should have reasonably known their duties, this can be demonstrated through manuals, training, customs, and testimony.

According to the UCMJ, a person is derelict if they willfully or negligently fail to perform their duties or perform them inefficiently without a reasonable excuse. “Willfully” means intentionally, and “negligently” means failing to use the care a reasonably prudent person would. Inefficiency without a just excuse is also culpable.

Ineptitude, or lack of skill, is not grounds for dereliction of duty if the person has tried earnestly. For example, a recruit failing rifle training despite earnest effort is not derelict. If dereliction results in death or grievous harm, intent to cause harm is not necessary for the charge.

Maximum Punishment for Dereliction of Duty

Maximum punishment varies based on the nature of the dereliction. For dereliction based on neglect or culpable inefficiency, the maximum punishment includes the forfeiture of two-thirds pay per month for three months and confinement for three months.

When such dereliction results in death or grievous bodily harm, the consequences are more severe, often leading to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 18 months.

In cases of willful dereliction, the penalties can include a bad conduct discharge, forfeiture of all pay and allowances, and confinement for six months. If willful dereliction leads to death or grievous bodily harm, the punishment escalates to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.

Confinement Details

Confinement in the military refers to incarceration within the military system, where military prisoners live together rather than with civilian prisoners.

Male prisoners may face incarceration in various facilities, such as the United States Disciplinary Barracks, Naval Consolidated Brigs, or Marine Corps brigs.

Separate facilities exist for men and women to ensure appropriate accommodations.

Even relatively minor charges can result in confinement, making it crucial to consult with an attorney. Legal counsel can help explore available options and potential defenses to mitigate the consequences of dereliction of duty charges.

How an Experienced Military Defense Lawyer Can Help

You have rights and options if you face charges under Article 92. However, you face severe consequences of a conviction in a complex military justice system. That’s why you need help from an experienced military defense attorney.

A skilled military defense lawyer can:

  • Explain your rights and the charges against you in clear terms.
  • Investigate the circumstances of your case.
  • Identify potential defenses or mitigating factors.
  • Represent you in court-martial proceedings or administrative hearings.
  • Negotiate with prosecutors for reduced charges or alternative resolutions.
  • Ensure your side of the story is heard and considered.

Remember, being charged doesn’t mean you’re guilty. There may be valid reasons why you couldn’t follow an order or perform a duty. Perhaps the order was unclear, conflicted with another regulation, or wasn’t lawful. Maybe there were circumstances beyond your control that prevented you from carrying out your duties.

An experienced and skilled lawyer will work to understand your unique situation and build the strongest possible defense. They can help ensure that your rights are protected and that you’re treated fairly throughout the process.

The Investigation Process for Article 92 Violations

When you’re facing an allegation of violating Article 92, understanding the investigation process can help ease some of the uncertainty. A lawyer experienced in handling cases involving the UCMJ will be familiar with these steps and can be a valuable advocate through this process. Here’s what you can typically expect:

  • Initial Report: The process usually begins when a superior officer or another service member reports a suspected violation.
  • Preliminary Inquiry: Your commanding officer will likely conduct a preliminary inquiry to gather basic facts about the alleged incident.
  • Formal Investigation: If the preliminary inquiry suggests a violation may have occurred, a more formal investigation will be launched. This could be conducted by:
    • The unit’s leadership
    • Military police
    • Naval Criminal Investigative Service (NCIS)
    • Army Criminal Investigation Division (CID)
    • Air Force Office of Special Investigations (OSI)
  • Interviews: Investigators will interview witnesses, including you. Remember, you have the right to remain silent and the right to legal counsel during questioning.
  • Evidence Collection: Investigators will gather relevant documents, communications, and other evidence related to the alleged violation.
  • Report Compilation: The investigators will compile their findings into a report, which is then submitted to the commanding officer.
  • Decision on Action: Based on the investigation’s findings, your commanding officer will decide whether to take administrative action, recommend court-martial proceedings, or dismiss the case.

Throughout this process, remember your rights. You’re not required to make any statements that might incriminate you, and you have the right to legal representation. If you’re under investigation, seeking the advice of a military defense attorney early in the process can be incredibly beneficial.

Administrative Actions vs. Court-Martial

When it comes to handling Article 92 violations, the military has two main avenues: administrative actions and court-martial proceedings. There are key differences between the two.

Administrative Actions

These are non-judicial punishments, often handled within your unit. Examples:

  • Article 15 proceedings (Army and Air Force)
  • Captain’s Mast (Navy and Coast Guard)
  • Office Hours (Marine Corps)

Administrative actions are typically used for less severe or first-time violations of Article 92. They’re often employed when the command believes the issue can be corrected without resorting to more serious measures.

Consequences can include extra duties, reduction in rank, forfeiture of pay, or restrictions. Administrative action generally has less severe long-term consequences to your service record than a court-martial conviction.

You have the right to refuse administrative action and demand a court-martial instead.

Court-Martial

This is a military court proceeding, similar to a civilian criminal trial. Types:

  • Summary Court-Martial
  • Special Court-Martial
  • General Court-Martial

Court-martial proceedings are typically reserved for more serious violations of Article 92, repeat offenses, or cases where the command believes a more formal legal process is necessary.

Consequences can include confinement, punitive discharge, and more severe punishments than administrative actions. A conviction results in a federal conviction record, which can have significant long-term consequences.

The decision between administrative action and court-martial often depends on the severity of the alleged violation, your previous record, and the discretion of your commanding officer. In some cases, your commander might start with administrative action but escalate to court-martial if you refuse the administrative punishment.

Remember, whether you’re facing administrative action or court-martial, you have the right to legal representation. A skilled military defense attorney can help you understand your options, protect your rights, and work towards the best possible outcome for your situation.

Navigating these processes can be challenging, but you’re not alone. With the right support and understanding of the system, you can face these proceedings with confidence and clarity.

The Appeals Process for Article 92 Charges

If you’ve been found guilty of violating Article 92, either through administrative action or court-martial, you’re not necessarily at the end of the road. The military justice system provides avenues for appeal, allowing you to challenge the decision or the punishment imposed.

An appeal is the right path if you believe errors were made in your case or if you feel the punishment was too severe.

Administrative Action Appeals

If you received non-judicial punishment (NJP) for an Article 92 violation, your options include:

  • Request for Reconsideration: You can ask the commanding officer who imposed the punishment to reconsider their decision. This must typically be done within a short time frame after the punishment is imposed.
  • Appeal to Higher Authority: If reconsideration is denied or unsatisfactory, you can appeal to the next higher commander in your chain of command. This appeal must usually be filed within five days of receiving punishment.
  • Request for Removal of Records: After a period of time (usually two years), you can request that the record of your NJP be removed from your personnel file.

Remember, you always have the right to refuse NJP and demand a court-martial instead. However, this decision should be made carefully and preferably with the advice of a military defense attorney.

Court-Martial Appeals

If you were convicted at a court-martial, your appeal options are more formal:

  • Review by the Convening Authority: After your trial, the convening authority (usually your commanding officer) reviews the case. They have the power to reduce or set aside findings of guilt and reduce sentences.
  • Service Courts of Criminal Appeals: If your sentence includes a punitive discharge, confinement for a year or more, or death, your case is automatically sent to your service’s Court of Criminal Appeals. These courts review for legal error, factual sufficiency, and sentence appropriateness.
  • Court of Appeals for the Armed Forces (CAAF): This is the highest military court. You can petition the CAAF to review your case, but they’re not obligated to hear every case.
  • Supreme Court of the United States: In rare cases, military justice issues can be appealed to the Supreme Court, but this is uncommon.

Key Points to Remember in the Appeals Process

  • Timeliness: Appeals must be filed within specific timeframes. Missing these deadlines can result in losing your right to appeal.
  • Grounds for Appeal: Common grounds include legal errors during the trial, insufficiency of evidence, or inappropriateness of the sentence.
  • Legal Representation: You have the right to an attorney.
  • New Evidence: If new evidence comes to light after your conviction, you may be able to request a new trial.
  • Clemency: Even if your appeal is unsuccessful, you may be able to request clemency, which could result in a reduction of your sentence.

Navigating the appeals process can be complex, but it’s an important right that ensures the military justice system remains fair and accurate. If you’re considering an appeal, consult a knowledgeable military defense attorney who can guide you through the process, help you understand your options, and present the strongest possible case for your appeal.

Remember, an appeal isn’t a re-trial of your case. Instead, it reviews the proceedings to ensure that legal standards were met and justice was served. While it can be a challenging process, a successful appeal can make a significant difference in the outcome of your case and potentially your military career.

Don’t let the complexity of the appeals process discourage you from exercising your rights. With proper guidance and representation, you can navigate this system and work towards securing the best possible outcome for your situation.

Contact National Security Law Firm

Brett O’Brien, Military Defense Attorney

Facing Article 92 charges can be stressful, but you don’t have to go through it alone. With the right legal support from National Security Law Firm, you can navigate this challenge and work toward the best possible outcome for your case and your military career.

If you’re dealing with Article 92 charges, don’t wait to seek help. Reach out to our qualified military defense attorneys who can provide the guidance and representation you need during this difficult time. Remember, seeking legal help isn’t a sign of weakness – it’s a smart step toward protecting your rights and your future in the military.

Your service to our country is valued and respected. Now it’s our turn to fight for you. Call us at (800) 235-3645 or contact us online. With the right support, you can face these charges with confidence and work toward a resolution that allows you to continue your military career with honor.