In the military, the most common idea that we think of when we hear about a violation of an order is a standard verbal order that a military superior gives to a subordinate. Sometimes, we refer to these as direct orders. We also see orders given in writing to specific individuals about specific behavior to do or more commonly, what not to do (think military protective order to stay away from someone). Article 92 also includes failing to adhere to specific standards, which can result in charging for dereliction of duty.
Compliance with orders and standards is a foundation of discipline within the ranks, and often commanders are more likely to charge cases when their orders have been violated.
What we tend to see charged more commonly in courts-martial are when the order that was violated is considered to be a violation of a lawful general order (which we see most often in deployed scenarios) or a violation of a regulation. Violations of regulations come in all types and we see many charging decisions being made about equal opportunity violations as violations of that specific service’s regulation. Before the recent change to the UCMJ which created its own military specific offense for sexual harassment, we also saw extensive charging under Article 92.
One thing to keep in mind is that not all regulation provisions are what is called “punitive.” In order for the violation of any provision of a regulation to be charged as a crime or a violation of the UCMJ, that action or failure has to violate a specific provision or part of a regulation that is announced as “punitive.” There is a fiction in the law that when a person violates an order that they had to know the order. While that is true when the order comes from a military member to another member for a specific action to take or not take, that is not true when we are speaking to lawful general regulations and lawful general orders. Service members are presumed to know that if they violate any punitive provision of a regulation or general order that they had knowledge of the order AND that if they broke that provision that it would subject them to potential criminal exposure. It does not matter how obscure or random the lawful general regulation is, the service member is presumed to know it. The prosecution does not need to prove that the person knew about that provision, they only have to prove that it was in effect at the time of the violation.
Article 92 also lumps in the crime of being derelict in the performance of the servicemember’s duties. Often military prosecutors charge dereliction but fail to introduce as evidence the standard that the member is supposed to comply with.
Be mindful that dereliction of duty is often charged simultaneously with another offense like larceny or wrongful disposition of military property. For example, if the service member had a heightened duty when it came to military property such as being the supply sergeant and that member failed to maintain proper accountability by inputting data into the system designed for keeping track of supply. If that failure to input the data, as it was their duty to do, then resulted in military property being lost, damaged, or stolen, the government may seek to charge them with dereliction of duty. It is easier to “prove” negligence than it is to prove willfulness, but it depends on how strong the government believes the evidence is. Prosecutors may also consider the respective maximum punishments for each when deciding what tier to charge.
There are many permutations of ways to combat allegations of Article 92, UCMJ. Our team is standing by to assess your case and to answer your questions
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