Gonzalez & Waddington, Attorneys at Law defend service members worldwide charged under Article 92, UCMJ—one of the most frequently used (and misused) articles in military justice. From “no-contact” orders and alcohol bans to fraternization and safety rules, an Article 92 allegation can lead to NJP/Article 15, court-martial, and administrative separation boards/BOIs. This guide explains the law, common government tactics, and battle-tested defense strategies that protect rank, career, and retirement.

Why Article 92 Matters

• High-usage charge: Commands rely on 92 to drive “good order and discipline” cases when facts are thin for other offenses.
• Career risk: Even an NJP finding can derail promotions and trigger separation boards.
• Stacking: Prosecutors often stack 92 with 120/120c, 93, 112a, or 134 to increase leverage and sentencing exposure.

What the Government Must Prove (Elements)

A. Violating or Failing to Obey a Lawful General Order/Regulation

1. A lawful general order/regulation existed.
2. The accused had a duty to obey it (applies to everyone in the command or service).
3. The accused violated or failed to obey the order/regulation.

B. Failure to Obey Other Lawful Order

1. A lawful order was issued by someone with authority over the accused.
2. The accused had knowledge of the order.
3. The accused had a duty to obey and willfully disobeyed the order.

C. Dereliction of Duty

1. A duty existed.
2. The accused knew or reasonably should have known of the duty.
3. The accused was willfully or negligently derelict in performance.

Key takeaways: The order must be lawful, the issuer must have authority, and the member must have knowledge and a duty to comply.

Winning Defense Strategies

• Lawfulness challenge: Orders that are vague, overbroad, arbitrary, or outside the issuer’s authority are not enforceable. Safety, privacy, or constitutional concerns can render portions unlawful.
• Authority & scope: Was the order issued by a proper superior? Was it a general order (service-wide/command-wide) or a specific order to the accused? Was the accused actually within the order’s scope?
• Knowledge & notice: Government must prove the accused knew of the order (e.g., acknowledged counseling, read/initialed policy, mass-email receipt). “Posted somewhere on SharePoint” is not enough.
• Specificity: Ambiguous “no fraternization” memos that don’t define prohibited conduct or relationships invite reasonable doubt.
• Necessity/impossibility: Conflicting orders, medical emergencies, or mission-impossible scenarios can defeat “willful disobedience.”
• Selective enforcement: If many violated the same policy but only you were charged, argue arbitrary enforcement to undercut credibility and proportionality.
• Mens rea (state of mind): Prove no willfulness for specific orders; show good-faith misunderstanding or compliance efforts for close calls.

Common Fact Patterns (and How We Attack Them)

• No-contact orders: Challenge service/command authority, notice, scope (work vs. off-duty), and alleged “contact” (accidental, one-way, or third-party).
• Fraternization/relationship policies: Demand exact policy text, effective dates, training records, and proof of knowing violation; highlight consenting adults and lack of chain impact.
• Alcohol/safety rules: Attack signage, publication, and actual knowledge. Use witness logs, duty rosters, and receipts to prove compliance.
• Phone/device bans: Show mission necessity, lack of secure alternatives, or unclear worksite boundaries.
• COVID-era orders: Vague or shifting guidance = fertile ground for knowledge/lawfulness challenges.

Evidence That Wins Article 92 Cases

• Order provenance: The signed policy/order, distribution list, effective dates, and authority chain.
• Notice trail: Counseling forms, acknowledgments, emails, training rosters—or the lack thereof.
• Digital records: Messages, access logs, geolocation, duty schedules, surveillance video.
• Witnesses: Supervisors/peers on what was actually briefed, how rules were enforced, and common practice.
• Comparators: Evidence others violated the order without consequence (selective enforcement).

NJP vs. Court-Martial vs. Separation Board

• NJP/Article 15: Lower standard (preponderance). Consider refusing if the evidence is weak and your risk tolerance supports trial.
• Court-martial: Proof beyond a reasonable doubt. Litigate lawfulness, authority, and knowledge early via motions.
• Separation boards/BOIs: Even after an NJP (or acquittal), commands may seek separation on preponderance. Build a retention case (evaluations, awards, mission value) and demolish the 92 foundation (vague policy, no notice, selective enforcement).

Motion Practice That Changes the Battlefield

• Motion to dismiss specs (unlawful/overbroad order, no authority, void-for-vagueness).
• Limine to exclude unduly prejudicial “pattern” proof under MRE 404(b) or command-climate rhetoric.
• Compel discovery of policy drafts, distribution, training rosters, comparator cases, and emails showing inconsistent enforcement.

Sentencing & Mitigation (If Needed)

• Service record stack: Evaluations, deployments, awards, quals, and letters from leadership.
• Mission impact: Explain lost capability if reduced/discharged.
• Rehabilitation: Training completions, counseling, compliance improvements.

Common Defense Mistakes (Avoid These)

• Accepting “it’s a lawful order because the command says so” without testing authority and scope.
• Ignoring the notice problem—government must prove knowledge.
• Letting vague policy language slide—push for precise definitions and jury instructions.
• Failing to gather comparator evidence of selective enforcement.
• Going into a separation board unprepared after NJP—treat boards like trials.

Pro Tips

• Ask for the original signed order and distribution logs—don’t accept summaries.
• Subpoena training rosters and email receipts to combat “you knew the policy.”
• Build a timeline exhibit showing what was ordered, when it changed, and what you were actually told.
• At boards, frame 92 as a policy/communication failure, not a character failure.

Video: Defending Article 92 – Orders, Knowledge & Notice

Charged with Article 92? Fight the Order—Protect the Career

We litigate lawfulness, authority, knowledge, and notice—and we win by exposing vague policy, bad publication, and selective enforcement. Whether it’s NJP, court-martial, or a separation board/BOI, we build evidence-dense defenses that protect rank, benefits, and reputation.

Gonzalez & Waddington — ucmjdefense.com — 1-800-921-8607

FAQs: Article 92 UCMJ (Failure to Obey)