Article 92 of the Uniform Code of Justice criminalizes several kinds of violations of orders and standards.
When analyzing the likelihood for successful prosecution, we have a checklist for Article 92 violations. We can share some of the most notable issues to go after here. The first to review is the charging decision. Often the prosecution uses the wrong sub-provision in the regulation. If that subsection was not punitive, then it cannot make up a criminal charge. The second is to check for proof of the standard being alleged as having been violated. Often prosecutors create in their own minds that a standard was violated. Regulatory charging requires a heightened sense of notice pleading. This means that not every alleged dereliction is criminal. A person can make a mistake without it being a crime. The difference can be exploited in the defense of these kinds of allegations. The third notable part of dismantling these kinds of prosecutions is to look at whether the order or regulation was the one in place at the time of the alleged violation; it may seem like a longshot, but we see it all the time. The fourth part of our checklist is to review whether the evidence matches with the specific subparagraph that was charged. For questions about your specific charges and proof, please schedule with one of our experienced UCMJ lawyers.
When crimes are charged under the UCMJ, each one has certain parts of it that have to be met. These are known as elements. Article 92 has several subsets of violation and each one of those subsets has its own unique elements. We will provide each of those below.
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.
There are two distinct kinds of dereliction of duty. One occurs when the service member willfully (intentionally) was derelict in the performance of their duties. And the second occurs when that member neglected their duties or was deemed “culpably negligent.” There is a long definition of what is culpable negligence (a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission) but what the basic meaning is that the person did something or failed to do something that did not consider the next logical consequence that would come from their act or failure to act.
Article 92 Maximum Punishment
In the same way that each of the sub-categories of crimes under Article 92 has its own set of elements, each maximum punishment is different.
The other thing to keep in mind is that the maximum punishments provided are if the court-martial is sent to a general court-martial. The process of sending a charge sheet to a general court-martial (or to any court-martial) is known as referral. If you have questions about the referral process, please read more about the UCMJ Legal Process. For questions about the kinds of court-martial, please read more about their classifications.
- Lawful General Order or Regulation
For a violation or failure to obey lawful general order or regulation, the maximum punishment is to be reduced to E-1, to forfeit all pay and allowances, confinement for two years, and to be discharged from the service with a dishonorable discharge.
- Violations of or Failure to Obey Other Lawful Orders
The maximum punishment at a general court-martial for violating or failure to obey other lawful orders, is to be reduced to E-1, to be confined as much as six months in military jail, forfeiture of all pay and allowances, and to be discharged from the service with a bad conduct discharge.
- Dereliction of Duty – Neglect or Culpable Inefficiency
For dereliction of duty through neglect or culpable inefficiency, the maximum punishment is to be reduced to the lowest grad of E-1, to forfeit two-thirds pay per month for three months (even at a General court-martial) and to be confined for three months.
- Dereliction of Duty – Willful
For a willful dereliction of duty, the maximum punishment is reduction to the lowest grade of E-1, to lose all pay and allowances, confinement for six months, and to be made to leave the service with a bad-conduct discharge.
Lesser Included Offenses
The only lesser included offense to a violation of an order or dereliction of duty under Article 92 is Article 80, Attempt.
Often people (even lawyers) confuse the legal concept of an attempt with its more common everyday usage – someone trying to do something. While trying to do something is absolutely a component of the legal construct, it is not the only part. In order for a “try” to be criminal, there has to be what is known as a substantial step. There also has to be a specific intent to bring about the crime that the person is legally attempting to do
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