What is article 92?
Article 92 defines disobeying a direct order as three types of offenses - violations or failures to obey lawful general orders or regulations, failures to obey other lawful orders, and dereliction of duty. Article 92 charges are common in many prosecutions. It does not take very much effort for the government to find an allegation under Article 92 in most cases.
For charges related to violating or failing to obey lawful general orders or regulations, most defenses will focus on defects in the regulation. That particular provision does not require that the accused have specific knowledge of the order or regulation [4]. In that regard, one of the only areas of attack is usually to attack defects in the regulation.
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 [1].
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 [2].
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 [3].
As a threshold matter, the regulation must apply to the accused and prohibit the conduct that the accused is alleged to have performed [5]. In many cases, the order or regulation is intended to provide guidance. The regulation should specifically state that it is punitive. Counsel should note that the specification may be defective if it fails to specify the proper regulation or that the order is a general order. Counsel should also be careful to investigate whether any exceptions to the order or regulation exist.
Where the case involves violations of other lawful orders, a person with a status that imposes on the accused a duty to obey the order must have given the order. In that regard, the person giving the order need not necessarily be superior in rank. The key in these cases is sometimes attacking the knowledge element of the order. Cross-examination of government witnesses should frequently focus on the specificity of the order.
Orders are presumed to be lawful. Nonetheless, counsel may attach whether the order had a valid military purpose. That is, all activities reasonably necessary to accomplish a military mission. It can also include activities intended to safeguard or promote the morale, discipline, and usefulness of a unit [6]. The order can involve prohibitions on private activity if they relate to any of the above [7]. Counsel must scrutinize the order to ensure that it is not an overly broad limitation on a personal right.
In dereliction of duty cases, the threshold question is whether the accused had a particular duty. The duty can be imposed by any number of sources, including custom of the service. The key, again, is that the accused must have had knowledge of the particular duty. Ineptitude can be a defense to allegations of willfulness, negligence, or culpable inefficiency. A defense of ineptitude will be largely fact-specific. Examine the duty, the training, and abilities of the client, and the context in which he or she was asked to perform the duty.
