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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 92 Failure to Obey Order or Regulation

Article 92 deals with the failure to follow orders or regulations and violation of orders/ regulations. Different situations are covered under Article 92 as follows: violating general order or regulation, violating other written regulation or order, failure to obey lawful order and dereliction of duty.

There are several variations of the charge of Article 92, violation of the UCMJ. These changes require slightly different elements of each charge to prove and are discussed as follows:

a) Violating general order or regulation

Elements:

  • That a lawful general of order or regulation existed.
  • That the accused was duty bound to obey this regulation or order.
  • That the accused disobeyed or violated this order/ regulation by an act, behavior or alleged intent.

Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment.

b) Violating other written regulation or order

Elements:

  • That a lawful regulation or order existed
  • That the accused was fully aware of this order/ regulation
  • That the accused was bound by duty to obey the regulation/ order
  • That the accused disobeyed this order/ regulation

Maximum Punishment: The accused faces bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment.

c) Failure to obey lawful order

Elements

  • That a specific lawful order was issued by a member of the United States armed forces.
  • That the accused was fully aware of the order.
  • That the accused was duty bound to obey the order.
  • That he failed to do so.

Maximum Punishment: The accused could get a bad conduct discharge, forfeiture of all allowances and pay and up to 6 months confinement if found guilty of this offense.

d) Dereliction of duty

Elements

  • That certain duties were assigned to the accused.
  • In case of willful dereliction, the prosecution must prove that the accused had knowledge of the duties assigned to him.
  • In case of negligence/ inefficiency leading to dereliction of duty, the prosecution must prove that there are reasonable grounds to show the accused should have known about his assigned duties and that he failed to carry them out.

Maximum Punishment: For deliberate dereliction of duty, the accused shall receive bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment. For dereliction of duty through inefficiency or neglect, the maximum punishment is 2/3rd of a month's pay for 3 months and three months confinement.

To learn more about this punitive article refer to the Manual for Courts Martial.

Points to Note about Article 92

  • Willful dereliction of duty attracts a more serious punishment than negligence leading to dereliction.
  • Circumstantial evidence can be used to show that the accused had knowledge of his duty and, in cases of willful dereliction, circumstantial evidence can be used to show the accused intended to avoid duty.
  • The serviceman is not guilty of violating this article if the duty is self- imposed.
  • The lawfulness of the order is an important aspect to consider in these cases.
  • When the order carries exceptions, the prosecution has to prove that the accused is not subject to the terms of the exception.

Example of Article 92

In the United States v. Jack, 10 M.J. 572 (A.F.C.M.R. 1980) trial conviction of the accused was set aside although he had violated the local regulation about visiting hours in female barracks. The reason behind the setting aside of the punishment was that the sign did not designate the issuing authority.

In the United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953) trial, a official holding rank of major general was found guilty of dereliction of duty under Article 92 after he failed to secure classified information, thus violating an existing Army regulation.

Article 92 is commonly found in Article 15's. While it is found in the UCMJ, it is generally used to get the service member's attention for minor infractions. For instance, a service member in formation may not have been paying attention when a lawful order was given to the unit while the service member was present for the formation. There are other cases were a service member will fully violates a lawful order such as violating General Order Number 1, while serving down range on deployment. Common violations under this fact scenario are drinking while deployed. These types of offenses are not commonly punished by court-martial but generally handled through some other means of non-judicial punishment.

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