Posted on Jun 2, 2018
Where is the term "lawful order" defined? Or, what are your opinions on when it should be used?
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UCMJ
Law
Responses: 12
This is what I could find on Article 92
There are several variations of the charge of Article 92, violation of the UCMJ. These changes require slightly different elements of each charge to prove and are discussed as follows:
a) Violating general order or regulation
Elements:
That a lawful general of order or regulation existed.
That the accused was duty bound to obey this regulation or order.
That the accused disobeyed or violated this order/ regulation by an act, behavior or alleged intent.
Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment.
b) Violating other written regulation or order
Elements:
That a lawful regulation or order existed
That the accused was fully aware of this order/ regulation
That the accused was bound by duty to obey the regulation/ order
That the accused disobeyed this order/ regulation
Maximum Punishment: The accused faces bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment.
c) Failure to obey lawful order
Elements
That a specific lawful order was issued by a member of the United States armed forces.
That the accused was fully aware of the order.
That the accused was duty bound to obey the order.
That he failed to do so.
Maximum Punishment: The accused could get a bad conduct discharge, forfeiture of all allowances and pay and up to 6 months confinement if found guilty of this offense.
d) Dereliction of duty
Elements
That certain duties were assigned to the accused.
In case of willful dereliction, the prosecution must prove that the accused had knowledge of the duties assigned to him.
In case of negligence/ inefficiency leading to dereliction of duty, the prosecution must prove that there are reasonable grounds to show the accused should have known about his assigned duties and that he failed to carry them out.
Maximum Punishment: For deliberate dereliction of duty, the accused shall receive bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment. For dereliction of duty through inefficiency or neglect, the maximum punishment is 2/3rd of a month's pay for 3 months and three months confinement.
To learn more about this punitive article refer to the Manual for Courts Martial.
Points to Note about Article 92
Willful dereliction of duty attracts a more serious punishment than negligence leading to dereliction.
Circumstantial evidence can be used to show that the accused had knowledge of his duty and, in cases of willful dereliction, circumstantial evidence can be used to show the accused intended to avoid duty.
The serviceman is not guilty of violating this article if the duty is self- imposed.
The lawfulness of the order is an important aspect to consider in these cases.
When the order carries exceptions, the prosecution has to prove that the accused is not subject to the terms of the exception.
There are several variations of the charge of Article 92, violation of the UCMJ. These changes require slightly different elements of each charge to prove and are discussed as follows:
a) Violating general order or regulation
Elements:
That a lawful general of order or regulation existed.
That the accused was duty bound to obey this regulation or order.
That the accused disobeyed or violated this order/ regulation by an act, behavior or alleged intent.
Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment.
b) Violating other written regulation or order
Elements:
That a lawful regulation or order existed
That the accused was fully aware of this order/ regulation
That the accused was bound by duty to obey the regulation/ order
That the accused disobeyed this order/ regulation
Maximum Punishment: The accused faces bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment.
c) Failure to obey lawful order
Elements
That a specific lawful order was issued by a member of the United States armed forces.
That the accused was fully aware of the order.
That the accused was duty bound to obey the order.
That he failed to do so.
Maximum Punishment: The accused could get a bad conduct discharge, forfeiture of all allowances and pay and up to 6 months confinement if found guilty of this offense.
d) Dereliction of duty
Elements
That certain duties were assigned to the accused.
In case of willful dereliction, the prosecution must prove that the accused had knowledge of the duties assigned to him.
In case of negligence/ inefficiency leading to dereliction of duty, the prosecution must prove that there are reasonable grounds to show the accused should have known about his assigned duties and that he failed to carry them out.
Maximum Punishment: For deliberate dereliction of duty, the accused shall receive bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment. For dereliction of duty through inefficiency or neglect, the maximum punishment is 2/3rd of a month's pay for 3 months and three months confinement.
To learn more about this punitive article refer to the Manual for Courts Martial.
Points to Note about Article 92
Willful dereliction of duty attracts a more serious punishment than negligence leading to dereliction.
Circumstantial evidence can be used to show that the accused had knowledge of his duty and, in cases of willful dereliction, circumstantial evidence can be used to show the accused intended to avoid duty.
The serviceman is not guilty of violating this article if the duty is self- imposed.
The lawfulness of the order is an important aspect to consider in these cases.
When the order carries exceptions, the prosecution has to prove that the accused is not subject to the terms of the exception.
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SFC(P) (Join to see)
Yeah, I've read this before but in my opinion its to general. I'm curious if it gets more specific anywhere else on lawful orders. Thank you for your input.
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MAJ Samuel Weber
SFC(P) (Join to see) it’s meant to be general. This allows commanders the leeway to determine the severity of the violation. The MCM is just there to provide “legal” language that must be interpreted by the Commander, thier Enlisted Leader, and the JAG. Usually, a lawful order is given by an officer, whereas a direct order is given by an NCO, which could have been given to him from the Chain of Command. Hope that gives you a better perspective.
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