Every military service member takes an oath to obey orders from the President of the United States and the officers appointed over them. This promise is not a mere formality. Rather, it serves as a cornerstone of military discipline. So what happens if a service member fails to uphold this oath by disobeying a direct order? Article 92 of the Uniform Code of Military Justice (UCMJ) covers this topic in detail.

Understanding Article 92

Article 92 criminalizes the failure to obey lawful orders or regulations. This might sound simple, but there’s more to it than merely “not following an order.” Article 92 violations come in several forms, each with slightly different parameters and maximum punishments. Here are some examples:

1. Violating a general order or regulation: This encompasses disobeying any regulation or order provided by the Department of Defense or an individual service. Punishments can range from a simple reprimand or forfeiture of pay and allowances to confinement for up to two years and a dishonorable discharge.
2. Violating other written regulation or order: This offense pertains to disobeying written directives. Penalties include a reduction in rank, forfeiture of pay and allowances, confinement for up to six months, and a bad conduct discharge.
3. Failing to obey a lawful order: This is an even narrower offense, focusing on the disobedience of a specific, direct order. Punishments may include forfeiture of pay and allowances, confinement for up to six months, and a bad conduct discharge.

Elements of Article 92

You can only be found guilty of disobeying a military order if the prosecution proves the following elements beyond a reasonable doubt:

• The existence of a lawful order: The very foundation of an Article 92 violation rests upon the existence of a lawful order or regulation issued by someone with the appropriate authority.
• Knowledge of the order: It’s not enough for an order to exist—the service member must have had knowledge of the order. Circumstantial evidence can be used to show that the accused knew their duty.
• Dereliction in the performance of duties: If a service member does not perform their duties to the best of their ability or fails to perform them entirely, they may be found derelict.
• Willful disobedience: This is the intentional defiance of a direct order or regulation. It goes beyond simple negligence to represent a purposeful decision to defy a directive.
• Resultant failure: In some instances, accusations of Article 92 violations address the consequences of the service member’s disobedience. If failure to follow an order leads to a specific adverse outcome—such as a mission’s failure or compromised team safety—it may be an essential component of the charge.

Defending Against Article 92 Accusations

Being accused of disobeying a military order is no small matter. Such charges can jeopardize your military career and future opportunities in the civilian sector. Fortunately, every accused service member has the right to an attorney. Here are some defense strategies your legal counsel may use when building your case:

• Lack of knowledge: Ignorance can sometimes be a defense strategy, but not always. If a service member can demonstrate that they had no conceivable way of knowing about a given order or directive—and that this lack of awareness was reasonable and not due to negligence—this may be a viable defense.
• The order was not lawful: A military order must be legal for a service member to be compelled to follow it. Orders that violate established laws, regulations, or the UCMJ are not binding. If you can prove that the order you’re accused of disobeying was unlawful—such as if it infringes on your personal rights or involves committing a crime—this can serve as a robust defense.
• Inability to comply: Sometimes, service members are unable to fulfill an order due to physical or psychological limitations. For instance, if an individual is ordered to lift an extremely heavy object and physically can’t, it wouldn’t be fair to fault them for failure to comply. Similarly, if someone receives an order while experiencing a severe mental health crisis, their capacity to understand or act upon that order could be compromised.
• Mistake of fact: This defense hinges on the idea that the service member made an honest and reasonable mistake regarding the facts of the situation. For instance, if a service member believed they were acting according to a superior’s order when they took a particular action—even if this perception was mistaken—it might serve as a defense.
• Duress: If a service member can prove that they failed to obey an order because they were under threat or duress, it can be a valid defense. To be successful, the accused must demonstrate that they acted out of a genuine and reasonable fear for their safety or the safety of others.

Defend Your Rights with Help from Joseph L. Jordan, Attorney at Law

Facing accusations of an Article 92 violation is daunting. It’s crucial to be aware of your rights and the potential defenses available to you. That’s where Joseph L. Jordan, Attorney at Law, steps in. As a former service member and current respected military lawyer, Mr. Jordan understands military law inside and out. He also recognizes the challenges you face as an accused service member and will work diligently to defend your rights. Don’t let accusations define your future—call us toll-free at 800-580-8034 or 254-221-6411 to speak directly with Mr. Jordan about your case.