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
- 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
- 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
- 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
- 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.
“Joseph handled my Military Law matter. I have previously worked with 3-5 lawyers. The best lawyer that I know. Thank you, Mr. Jordan. You got me great results.”
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.
Recently, 2 September 2021, the Navy issued guidance on how the Navy will be responding to those who chose not to be vaccinated. We anticipate other branches of the military to follow suit.
The Navy has formed a designated COVID Consolidated Disposition Authority (CCDA). The purpose of the CCDA is to serve as the central authority for adjudication for those who refuse to be vaccinate. The CCDA will have at their disposal the full range of possible outcomes for failing to follow a direct order (Article 92). The adjudications will include non-judicial punishment, courts-martial and or administrative separation.
The decision and punishment will not be handled at the local level and will greatly impact your local command’s ability to advocate for you should you refuse to be vaccinated.
At the time of this writing, the only exemption that is applicable is a medical exemption which will be given on a case-by-case basis. If you are seeking a medical exemption, please see your military medical provider for testing and examination to see if such an exemption applies to you.
If no exemption applies to you and you still refuse to take the vaccine, then you will be in violation of Article 92 of the UCMJ, failure to follow a lawful order. All potential consequences are on the table. Those include Courts Martial, NJP, Reprimand and or potential administrative separation.
Side Note: If a service member is within 180 days of discharge with written orders they will be exempt or receive an exemption. (that was in one of the articles so not sure the validity of the statement)
This order addresses Secretary of the Army implementation of HQDA EXORD 225-21 Annex R, (Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members), dated 24 August 2021. It does not address federal civilian or contractor employees.
(1) (U) [ADD] Total Army completion goals: COMPO 1 will achieve 100% complete vaccination NLT 15 December 2021. COMPO 2 and COMPO 3 will achieve 100% complete vaccination NLT 30 June 2022. Commanders will exhaust supplies on hand with urgency in pursuit of 100% vaccination.
- a. (U) [ADD] Phase 1: Effective immediately, TRADOC Commanders will vaccinate all Service Members who are not otherwise exempt. Orders to receive the mandatory vaccination are lawful. Commanders will utilize Brooke Army Medical Center (BAMC) vaccination sites for Pfizer/COMIRNITY vaccinations. COVID-19 Vaccination site address is 2536 Garden Avenue building 4110, JBSA Fort Sam Houston 78234. Service Members may at any time still voluntarily receive any other vaccine approved for emergency use. Service Members requesting an exemption are not required to receive the vaccine, pending the final decision on their exemption request. Only those adverse administrative actions identified for Phase 1 are authorized during Phase 1 for Service Members refusing the vaccine; any other adverse action based solely on vaccine refusal is withheld during this phase.
- b. (U) [ADD] Within seven days of this order, Soldiers voluntarily scheduling COVID vaccinations at alternate locations must provide the following information to their Commanders to ensure good faith in complying with this order:
- i. (U) [ADD] A signed memorandum from the Service Member indicating compliance with the mandatory vaccination order.
- ii. (U) [ADD] Memo should include appointment schedules and ensure proof of full COVID vaccination will be given at the site (i.e COVID Vaccine Card). Soldier must present original COVID vaccine card when fully complete to the Unit Commander for processing of information to MEDPROs.
Below are the highlights of what will happen if a Service Member refuses to comply with a legal order from the SECDEF:
2. (U) [ADD] Process when Service Member declines immunization. Effective immediately, if a Service Member declines immunization, the Commander will counsel the Service Member using DA Form 4856 IAW HQDA EXORD 225-21 Annex NN (Sample DA Form 4856 for Enlisted Vaccine Refusals) and HQDA EXORD 225-21 Annex OO (Sample DA From 4856 for Officer Vaccine Refusals). The Commander then directs the Service Member to view the mandatory educational video on the benefits of the vaccine: HTTPS://WWW.CDC.GOV/CORONAVIRUS/2019-NCOV/VACCINES/KEYTHINGSTOKNOW.HTML. Following the mandatory video, the Service Member’s immediate Commander will order the Service Member to comply with the order to receive the vaccine.
- a. (U) [ADD] If the Service Member declines again, the immediate Commander directs the Service Member to meet with a designated medical professional (physician, physician assistant, or a nurse practitioner to further discuss the benefits of vaccination and address the Service Member’s concerns. Following that meeting, the Service Member’s immediate Commander will order the Service Member again to receive the vaccine. If the Service Member declines immunization once again, the Commander will consult with their servicing Judge Advocate.
- b. (U) [ADD] Commanders will request a General Officer Memorandum of Reprimand (GOMOR) be initiated for all Service Members refusing the vaccine after counseling, education, and meeting with a medical professional, unless they are pending an exemption.
- c. (U) [ADD] Service Members who refuse the mandatory vaccination after counseling, education, and meeting with a medical professional will be flagged IAW AR 600-8-2, unless they are pending an exemption.
Please inform your Service Members if they have not received the vaccine at this point. Reporting will be an Operations function all we need is standard name line and whether or not they are fully vaccinated or declined vaccination.