UCMJ Article 92: Violating General Order Or Regulation
At Bilecki Law Group, we defend service members against charges of violating general orders or regulations under Article 92 of the UCMJ.
What Is Article 92 Of The UCMJ?
Violating general orders or regulations under article 92 of the UCMJ takes place when there was in effect a certain lawful general order or regulation that the accused had a duty to obey and that the accused violated or failed to obey this lawful general order or regulation.
To sum it up, that’s a fancy way of saying that the United States Military assumed a service member knew they were supposed to do or omit a certain action and then did the opposite. To make matters worse, many of these general orders are taught in boot camp and rarely reinforced by many commands until someone violates it.
Now, it is right and proper that general orders exist and they certainly serve a purpose towards maintaining proper military order and discipline. The only problem is that they are rarely enforced with any consistency from command to command and leaves the individual service member responsible for the moment a fickle command decides to bring Article 92 to the table. It’s only then that you find yourself unsure of what you actually did wrong and only then you realize you need a strong military defense if your career is to survive.
What Charges Can Come Out of Article 92 Of The UCMJ?
There are three separate charges that can come out of Article 92, but keep in mind that Article 92 may be just one of the articles you are accused of violating. It’s quite common for a service member to find themselves in a larger mess and Article 92 just gets piled on top just to add more severe punishments. Below you’ll find each charge along with the max corresponding punishment if found guilty.
- Failure To Obey Order or Regulation
- That’s the standard charge and definition we used above. There was in effect a certain lawful order or regulation that you had a duty to obey and you are accused of failing to do so.
- The article then goes on to define general orders as those orders or regulations which are generally applicable to an armed force and which is properly published by the President, Secretary of Defense, Homeland Security, or other military department.
General orders and regulations also include those orders which are generally applicable to the command of the officer issuing them throughout the command. If a general order was issued by a previous command, it retains its character as a general officer when another officer takes command until it expires by its own terms or is rescinded by separate action.
Max Punishment: Dishonorable Discharge, total forfeiture of all pay and allowances, 2 years confinement, and reduction in rank to E-1.
Dereliction of Duty
The final “catch all” charge when they can’t prove a specific order was issued, dereliction of duty covers a broad array of activities and behaviors. The UCMJ clarifies in Article 92 that a duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.
For a service member to be convicted of dereliction of duty, there are several elements that must be satisfied. They are that the accused had a certain duty to perform, the accused knew of the duty or reasonably should have known of the duty, and that the accused was willfully or through neglect or culpable inefficiency derelict in that performance. It then adds the aggravating circumstance that such dereliction of duty resulted in death or grievous bodily harm.
(2) Neglectful or culpable inefficient dereliction of duty resulting in death or grievous bodily harm – Bad conduct discharge, total forfeiture of pay and allowances, 18 months confinement, reduction in rank to E-1
(3) Willful dereliction of duty – Bad conduct discharge, total forfeiture of all pay and allowances, 6 months confinement, reduction in rank to E-1.
(4) Willful dereliction of duty resulting in death or grievous bodily harm – Dishonorable discharge, total forfeiture of all pay and allowances, 2 years confinement, reduction in rank to E-1.
Couldn’t Every Service Member Commit Be Charged Under Article 92?
The short and simple answer to that question is yes. Every service member at some point will likely find themselves in violation of some general order or derelict in their duties at some point because Article 92 covers such a broad spectrum of military life. From the Marine Lance Corporal sleeping in a closet to avoid the working party duties to the PFC who failed to salute when colors played, it happens in military life. Beyond this, it becomes almost part of the culture in some military circles. Just ask the Corps’ Lance Corporal underground and they’ll tell you.
It’s also not true that failing to obey every order makes someone a bad Soldier, Marine, Airman, Sailor, and so on. Military history is littered with gallant heroes who excelled on the battlefield, but struggled in the barracks. We’re talking Medal of Honor recipients in every single branch throughout US Military history and they too could have been charged multiple times under Article 92. So, if you find yourself on the wrong side of Article 92 right now, you are in good company. It’s more likely you are the victim of a fickle command’s bad mood on a bad day and that means you need to fight back.
How To Fight and Win Against Charges Under Article 92
It is a common theme within the military justice system that someone has to be made an example out of just to maintain military order. It’s not fair and when the military justice system decides to make an example out of you, it can be downright cruel. So, your first step is to stand up and fight back because not every service member will do so. They are going to roll over and hope the military justice system offers mercy and that’s why a simple Article 92 charge will be the end of their career and maybe their freedom.
You are going to make yourself a harder target and make them move on to the next guy. You are not going to lay down because you cannot coexist with a military justice system that is out to destroy you. This means we’re going to cede nothing to the prosecution and fight them on every element at every turn.
This might mean we question the legality of the order or whether or not it was in conflict with another general order or regulation. Perhaps another officer of a higher rank issued a contradictory order. We’ll show that you were trying to make the right decision and the fault is with your command structure. We’ll also examine if the order had properly promulgated throughout the ranks. If other service members had no idea about the order, you might have just been the first one to cross this unknown line.
Fight To Win And Fight To The End
Military general orders are extremely confusing and as we said, the last time you heard them might have been at basic training when a D.I. pressing his campaign cover into your face yelling them at you to remember. Losing your career or your freedom over Article 92 charges is unacceptable. That’s why, we’ll even pull the officer who issued the order on the stand and show them no mercy. We’re no longer military officers and we are not worried about our career as a free JAG lawyer may do.
We will shred that office to bits on the stand without apology and demonstrate the fickle nature of this decision. Just recently this past Christmas of 2021, a young Army officer with the 82nd Airborne issued an order that went viral as he was recalling his unit for formation on Christmas Eve. The order read as follows:
“ 0900 OCPs everyone, even if you are on leave. Don’t be late or you will face UCMJ actions from the commander. If you haven’t, start letting your guys know about 0900 recall. So, if any more need to stop drinking now, they can. Failure to show at 0900 without a valid reason will result in UCMJ.”
Now, thankfully for the young soldiers, that order went viral and command was forced to redirect the young platoon leader. But here’s the problem. Stupid crap like that happens all the time and had it not gone viral, many of those young men would be facing charges. That’s why we fight and that’s why we do what we do. You are not going to lose your career over an Article 92. You are not going to military prison. You are going to fight and you are going to win.
Please don’t take these charges lightly and assume you’ll get a slap on the wrist. If they think you won’t fight, they will roll over you just to make an example out of you. If you are facing investigation or charges under Article 92, get us into the fight. We’ll take the fight right to the military justice system and let them make that example out of someone else.
Violating Other Written Order/Failing To Obey Other Lawful Order
When the order is not general in the sense used by the UCMJ, you can still be charged for simply violating any other order issued. The elements needed to be satisfied are that a member of the armed forces capable of issuing a lawful order did so and that the accused had knowledge of the order and a duty to obey. Then, the accused failed to obey that order.
When an order prohibits certain acts, except under certain conditions, then the burden is on the prosecution to establish by legal and competent evidence beyond a reasonable doubt that the accused does not come within the terms of the exception. It also clarifies that if the order was not lawful, that this will be decided by the MJ and if the order was not lawful, affected specification should be dismissed.
Max Punishment: Bad Conduct discharge, total forfeiture of all pay and allowances, 6 months confinement and reduction to E-1