UCMJ Article 92: Failure to Obey Order or Regulation
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Article 92 contains three offenses: violating a lawful general order or regulation (dishonorable discharge, 2 years), failing to obey another lawful order the accused knew of (bad-conduct discharge, 6 months), and dereliction of duty (from 3 months up to a dishonorable discharge and 2 years when willful dereliction causes death or grievous bodily harm). For a general order, not knowing about it is no defense.
General orders, other orders, and dereliction
Under 10 U.S.C. § 892, a person subject to the UCMJ is punishable who:
- “violates or fails to obey any lawful general order or regulation”;
- “having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order”; or
- “is derelict in the performance of his duties.”
General orders: what they are, and why knowledge does not matter
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 18.c(1), defines general orders and regulations as those generally applicable to an armed force and properly published by the President or the Secretary of Defense, Homeland Security, or a military department, and those generally applicable throughout a command or subdivision issued by an officer with general court-martial jurisdiction, a general or flag officer in command, or a superior commander.
Three rules follow:
- Knowledge is not an element. “Knowledge of a general order or regulation need not be alleged or proved,” and “a lack of knowledge does not constitute a defense” (¶ 18.c(1)(d)).
- Not every provision is punitive. Regulations that “only supply general guidelines or advice for performing military functions may not be enforceable” under Article 92(1) (¶ 18.c(1)(e)). Whether the specific provision is punitive is a threshold question.
- Change of command does not cancel it. A general order stays in force after the issuing commander leaves, until it expires or is rescinded (¶ 18.c(1)(b)).
A general order is lawful unless it is contrary to the Constitution, federal law, or lawful superior orders, or is beyond the issuing official’s authority (¶ 18.c(1)(c)).
Other lawful orders
Article 92(2) covers every other lawful order a member of the armed forces may issue that is not chargeable under Article 90, 91, or 92(1), including written regulations that are not general regulations. Here the accused “must have had actual knowledge of the order,” which may be shown by circumstantial evidence (¶ 18.c(2)).
The order need not come from a superior. An order from someone the accused has a duty to obey, “such as one issued by a sentinel or a member of the armed forces police,” counts (¶ 18.c(2)(c)(ii)). Willfully disobeying a superior commissioned officer’s personal order is the more serious Article 90; an order from a warrant, noncommissioned, or petty officer in the execution of office falls under Article 91. A failure to comply that is not shown to be willful, even with a superior officer’s order, can still be Article 92(2).
Dereliction of duty
Under ¶ 18.c(3):
- Source of the duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.
- Knowledge. The accused must have known, or reasonably should have known, of the duty; that can be shown by regulations, manuals, training, customs, or testimony from people who held similar positions.
- Three ways to be derelict. Willfully (intentionally), negligently (lacking the care a reasonably prudent person would use), or through culpable inefficiency (inefficiency “for which there is no reasonable or just excuse”).
- Ineptitude is not dereliction. A failure caused by ineptitude rather than willfulness, negligence, or culpable inefficiency “may not be charged under this article, or otherwise punished.” The Manual’s example is a recruit who tried earnestly and still failed to qualify on the rifle range.
When dereliction results in death or grievous bodily harm, no intent to cause that result is required (¶ 18.c(3)(f)).
2 years for a general order or willful dereliction causing grave harm
From ¶ 18.d:
| Offense | Maximum |
|---|---|
| Violating or failing to obey a lawful general order or regulation | Dishonorable discharge, forfeiture of all pay and allowances, 2 years |
| Violating or failing to obey any other lawful order | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Dereliction through neglect or culpable inefficiency | 3 months; forfeiture of two-thirds pay per month for 3 months |
| The same, resulting in death or grievous bodily harm | Bad-conduct discharge, forfeiture of all pay and allowances, 18 months |
| Willful dereliction | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Willful dereliction resulting in death or grievous bodily harm | Dishonorable discharge, forfeiture of all pay and allowances, 2 years |
A ceiling that can drop
The Manual adds a limit to the order offenses. The punishments for general and other orders do not apply if, without the order, the accused would on the same facts be guilty of another specific offense carrying a lesser punishment, or if the violation is a breach of restraint imposed by an order. In those cases the maximum is the one prescribed for that other offense (¶ 18.d, Note). An order cannot be used to raise the punishment for conduct that already has its own, lower ceiling; breaking restriction, for example, keeps its 1-month maximum under Article 87b.
Sources
- 10 U.S.C. § 892, Article 92, Failure to obey order or regulation (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 18
General information about military law, not legal advice for any individual case.