Getting flagged for an Article 92 violation can feel like the floor has dropped out from under your military career. It’s a confusing and frankly terrifying position to be in. At its heart, Article 92 is the military’s core disciplinary tool, targeting the failure to follow lawful orders or regulations. The absolute first step in fighting back is understanding exactly what you're up against.
What Happens When You're Accused Under Article 92
An Article 92 charge isn't just one thing; it's a catch-all for several different types of disobedience. Think of it as the foundational chapter in the military’s rulebook—the one that ensures the entire system functions with order and discipline. Its whole purpose is to make sure service members follow the critical directives that keep missions safe and effective.
Once your command suspects a violation, things start moving fast. An initial inquiry or a formal investigation kicks off, and you might find yourself sitting across from agents from CID, NCIS, or OSI. This is where a lot of people make career-ending mistakes. It is absolutely critical to remember two things: you have the right to remain silent, and you have the right to an attorney. Use them.
The Initial Crossroads: NJP or Court-Martial
After the investigators have done their thing, your command has to decide what to do with the case. That decision usually sends you down one of two very different paths:
- Non-Judicial Punishment (NJP): This is the lower-level option, often called an "Article 15." Your commander handles it directly. While it’s not a federal conviction, don't be fooled—accepting an NJP is an admission of guilt. It goes into your permanent military record and can absolutely kill your chances for promotion or reenlistment down the road.
- Court-Martial: This is the real deal—a formal military trial, the equivalent of a civilian criminal court. The stakes are infinitely higher. A conviction here can mean serious jail time, a massive pay cut, reduction in rank, and a punitive discharge like a Bad-Conduct or Dishonorable Discharge that will follow you for the rest of your life.
That first choice—whether to take the NJP or roll the dice and demand a court-martial—is one of the most important decisions you'll ever make. You should never make it without talking to an experienced military defense lawyer first.
An Article 92 charge is more than just a punishment; it’s a direct attack on your reputation for discipline and reliability. The fallout goes way beyond the initial verdict, often triggering administrative separation boards, the loss of your security clearance, and a permanent black mark on a career you've worked hard to build.
Demystifying the Accusation
You have to know precisely what they're accusing you of. Is it for willfully disobeying a direct order from a superior officer? Or is it a charge for dereliction of duty, meaning you were negligent in performing your job? Every flavor of Article 92 has its own unique set of ingredients—elements the prosecutor has to prove beyond a reasonable doubt.
The clock starts ticking the second you’re told you're under investigation. Every move you make, and every move you don't make, can dramatically shift the outcome. Arming yourself with a solid understanding of the process is your first line of defense. This guide is designed to pull back the curtain on the complexities of an Article 92 UCMJ charge and give you the knowledge to face what’s coming with your head held high.
The Three Offenses Covered by Article 92
If you're facing an accusation under the article 92 uniform code of military justice, the very first step is to figure out exactly what the government is charging you with. This isn't one single offense. Think of Article 92 as a tree with three big branches, all stemming from the same trunk of "failure to obey," but each one is a completely different kind of violation.
Breaking down the specific allegation is mission-critical for building a defense. The evidence the prosecution needs to win changes dramatically depending on which branch they're on, and that creates different ways for a sharp defense attorney to fight back.
This flowchart maps out the two main roads an Article 92 case can travel down after the initial complaint.
As you can see, the command can keep it low-level with a Nonjudicial Punishment (NJP) or go all-in with a formal court-martial. This is a crucial fork in the road where your early decisions matter immensely.
To get a clearer picture, let's break down the three distinct clauses of Article 92. Each has its own rules of engagement and vulnerabilities.
Article 92 UCMJ Clauses at a Glance
| Clause | What It Covers | Key Element for Prosecution | Common Scenario |
|---|---|---|---|
| Clause 1 | Violation of a Lawful General Order | Order's existence and your duty to obey it | Breaking a base-wide curfew or a "no-go" zone order for a specific country. |
| Clause 2 | Failure to Obey Other Lawful Orders | Your actual knowledge of the specific order | Ignoring a direct, verbal command from your NCO to be at a certain place at a certain time. |
| Clause 3 | Dereliction in the Performance of Duties | Willful or negligent failure to do your job | A guard falling asleep on post or a mechanic skipping mandatory vehicle safety checks. |
Understanding these differences is the foundation of any successful defense strategy. Now, let's dig into the details of each.
H3: Clause 1: Violation of a Lawful General Order
The first type of charge is for violating a lawful general order or regulation. These are the big, sweeping directives issued by high-ranking commanders—think generals or admirals—that apply to everyone in a large command. A classic example is a GO-1 order banning alcohol for all troops deployed to a certain country.
To get a conviction, the prosecution just has to prove three things:
- There was a lawful general order or regulation in effect.
- You had a duty to follow that order.
- You blew it off or failed to obey it.
Here’s the kicker: the government doesn't have to prove you actually knew about the order. You are legally presumed to know the standing orders for your command. This makes the "I didn't know" defense incredibly tough, though not entirely impossible, to win.
H3: Clause 2: Failure to Obey Other Lawful Orders
This is the most common charge you'll see under Article 92. It's the catch-all for failing to obey any other lawful order that isn't a "general" one. We're talking about a direct verbal command from your squad leader or a written instruction from your company commander. The game changes completely here because of one word: knowledge.
The prosecution's entire case for a Clause 2 violation hinges on proving, beyond a reasonable doubt, that the service member had actual knowledge of the specific order. If they cannot prove you saw, heard, and understood the directive, their case falls apart.
This knowledge requirement is a huge opening for your defense. The prosecution's checklist is longer:
- A member of the armed forces gave a lawful order.
- You knew about this specific order.
- You had a duty to obey it.
- You failed to obey it.
For instance, if your NCO claims he told you to report for duty at 0500, but you can show you were never actually given that instruction, the charge is dead on arrival.
H3: Clause 3: Dereliction in the Performance of Duties
The last branch of Article 92 is dereliction of duty. This one isn't about breaking a specific order; it's about failing to do your job, either through neglect or just plain incompetence. It's a broad charge that covers everything from a gate guard falling asleep to a finance clerk messing up pay records.
This statute has been a pillar of military discipline since it was signed into law on May 5, 1950. Article 92 is the bedrock for enforcing standards across every branch, from the Army to the Space Force. You can read the official text yourself on the U.S. House of Representatives website.
To prove dereliction, the government has to show:
- You had certain, specific duties.
- You knew about them, or at least you reasonably should have known.
- You were willfully or negligently derelict in performing them.
That distinction between "willful" and "negligent" is absolutely critical. Willful dereliction means you intentionally blew off your duties, and it comes with much harsher punishments. Negligent dereliction just means you failed to act as a reasonably careful person would have in the same situation. Fighting to prove negligence over willfulness can make a massive difference in the outcome.
Understanding What Makes an Order Lawful
When facing an article 92 uniform code of military justice charge, the single most important word is “lawful.” The entire system of military discipline hinges on the idea that troops must obey lawful orders. But there's a hard stop on that obligation. Not every command that comes down the chain is one you’re legally required to follow.
Orders are presumed to be lawful. That's the starting point. But this presumption isn't bulletproof; it can be challenged and defeated in court. For an order to hold up, it has to be connected to a real military duty, come from someone with the authority to give it, and—most importantly—it can't violate the Constitution, federal law, or other regulations.
If an order fails that test, it's unlawful. A service member can't be punished for disobeying it. In fact, following a blatantly illegal order can land the person who obeyed it in just as much hot water.
The Litmus Test for Lawful Orders
So, where's the line? The Manual for Courts-Martial (MCM) gives us the framework. An order is considered unlawful if it fits into a few specific categories, which are the bedrock of any solid defense.
An order is generally unlawful if it:
- Violates the Law: This means it goes against the Constitution, a federal law (like the Posse Comitatus Act), or even the UCMJ itself.
- Is for a Private Benefit: A command to do personal favors for a superior—like washing their privately owned vehicle or running errands for their spouse—is unlawful because it has no military purpose.
- Conflicts with Other Standing Orders: An order that directly contradicts a higher-level, established regulation is invalid.
- Is Fundamentally Unrelated to Military Duty: The directive has to be tied to the military mission or the maintenance of good order and discipline.
Think of it this way: an order to clean your service rifle is obviously lawful. It's directly tied to military readiness. An order to use that same rifle to threaten your landlord is obviously unlawful. The legality and purpose of the order are everything.
An order that a "person of ordinary sense and understanding" would know to be unlawful is considered manifestly illegal. This standard is high, but it's a vital protection for service members placed in impossible situations.
Real-World Scenarios Lawful vs Unlawful
Let's look at a couple of clear examples. Imagine a Platoon Sergeant issues two different orders to the same soldier.
Scenario A (Lawful): After a failed room inspection, the Sergeant orders the soldier to report for an extra duty shift to clean the barracks common areas. This order is directly related to maintaining military standards and discipline.
Scenario B (Unlawful): The Sergeant orders that same soldier to drive to his off-base house to help him move a new couch. This order serves a purely personal interest for the Sergeant and has zero military function.
In Scenario B, the soldier has a legal right to refuse. While refusing any order from a superior feels like a massive risk, the "lawfulness" of the command is the ultimate deciding factor in court. For a deeper dive into this complex topic, you can learn more about the lawfulness of orders and how it impacts military offenses.
Challenging the legality of an order is one of the most powerful ways to defend against an Article 92 charge. It takes the spotlight off your alleged disobedience and puts it squarely on the command itself. If your defense attorney can prove the order was invalid from the get-go, the prosecutor's case often falls apart.
A Practical Look at Dereliction of Duty
Of all the charges under the article 92 uniform code of military justice, dereliction of duty is one of the most frequently used and, frankly, one of the most misunderstood. This isn't about an honest, human mistake. This charge is reserved for a service member’s willful or negligent failure to do a specific, known military duty.
That distinction is the entire ballgame. A simple error made in good faith isn't a crime. But a conscious decision to blow off a duty, or a careless failure to perform it, absolutely crosses the line into criminal territory. The government has to prove that specific state of mind.
Willful vs. Negligent Dereliction
Understanding the difference between "willful" and "negligent" is critical, because it directly impacts the severity of the potential punishment.
Willful Dereliction: This is the more serious offense. It means a service member knew their duty and intentionally decided not to perform it. Think of a mechanic who is required to perform a 10-point safety check on a vehicle but deliberately skips it to save time. That's willful.
Negligent Dereliction: This is about failing to exercise the standard of care a reasonably prudent person would have in the same situation. The mechanic might not have intended to skip the check, but maybe they were so careless or inattentive that they just forgot a crucial step.
The prosecution can't just prove a duty was missed; they have to prove how it was missed. This focus on intent and mindset is where we often build a strong defense.
The Duty Must Be Military-Specific
Here’s another crucial point: the duty in question has to be uniquely military. It must be imposed by a treaty, statute, regulation, lawful order, SOP, or even a well-established custom of the service. Failing to follow a general civilian law is not, by itself, dereliction of duty.
This uniquely military nature is by design. Congress created dereliction of duty under Article 92(3) to enforce military obligations, not to police state laws. Pivotal court decisions have hammered this point home, establishing that the government must prove a specific military-imposed duty existed. As one key 2017 ruling established, simple negligence is the baseline mental state required for a conviction. This prevents the charge from becoming a "strict liability" offense where any mistake is automatically a crime. You can find more insights about these critical legal standards on the U.S. Court of Appeals for the Armed Forces website.
The core of a dereliction of duty case isn't just about what a service member did or didn't do. It's about whether the prosecution can prove that a specific military duty existed, that the service member knew about it, and that they failed to perform it either intentionally or through unreasonable carelessness.
Common Scenarios and Defenses
Dereliction charges can pop up in countless situations across every MOS. The classic example is a guard falling asleep on post. But it could just as easily be an administrator failing to process critical paperwork or a supply clerk losing accountability of sensitive items.
This is where a skilled defense attorney becomes essential. For more detailed information on what constitutes dereliction, you might be interested in our comprehensive guide on dereliction of duty under Article 92. A strong defense often starts by challenging the very existence of the alleged duty.
For instance, a defense attorney can argue that:
- No Specific Duty Existed: The supposed "duty" was just a suggestion or common practice, not a formal requirement spelled out in a regulation or order.
- The Service Member Was Unaware of the Duty: The command dropped the ball and failed to properly train or inform the individual of their specific responsibility.
- Performance Was Not Negligent: The failure wasn't due to a lack of care. It was the result of a reasonable mistake, systemic issues, or factors totally beyond the service member’s control.
By attacking these foundational elements, a defense can effectively dismantle the prosecution’s case before it ever gains momentum.
The Real Career Consequences of an Article 92 Violation
An accusation under the article 92 uniform code of military justice isn't just a legal headache. It's an existential threat that can completely derail your military career and torpedo your future. While the formal punishments are severe, it’s often the hidden, long-term damage that causes the most devastation.
Whether your case is handled at Non-Judicial Punishment (NJP) or gets kicked up to a court-martial, the stakes couldn't be higher. A conviction doesn't just mean you do the time; it creates a permanent stain on your service record that can slam the brakes on your professional life.
Maximum Punishments for Article 92 Violations
The potential punishments for an Article 92 violation aren't one-size-fits-all. They depend heavily on the specific offense and whether you're facing a Special or General Court-Martial. As you might expect, the consequences escalate dramatically at a General Court-Martial, which shows just how seriously the military takes disobedience and dereliction.
Here’s a breakdown of what you could be up against:
| Violation Type | Maximum Confinement | Maximum Forfeiture of Pay | Potential Punitive Discharge |
|---|---|---|---|
| Dereliction of Duty (Negligent) | 3 months | Two-thirds pay for 3 months | No Punitive Discharge |
| Failure to Obey Lawful Order | 6 months | Two-thirds pay for 6 months | Bad-Conduct Discharge |
| Violation of General Order | 2 years | All pay and allowances | Dishonorable Discharge |
| Willful Dereliction of Duty | 6 months | Two-thirds pay for 6 months | Bad-Conduct Discharge |
As the table makes painfully clear, a conviction for violating a general order at a General Court-Martial could land you in prison for two years with a dishonorable discharge—the military’s version of a felony conviction.
A punitive discharge, whether it's a Bad-Conduct or Dishonorable, is a brand that follows you for life. It can strip you of your VA benefits, your right to own a firearm, and create massive roadblocks to finding meaningful civilian employment long after you've paid your debt.
The Hidden Career Damage
But the official punishments are just the tip of the iceberg. The real career killer is the collateral damage that comes with an Article 92 charge. Even if the formal penalties seem minor on paper, a finding of guilt—even at NJP—triggers a cascade of negative administrative actions designed to dismantle a promising career.
These secondary consequences often include:
- Negative Performance Reviews: A conviction will be plastered all over your evaluations (OER/NCOER/EPR). Good luck getting promoted after that.
- Loss of Security Clearance: Disobedience or dereliction is often seen as proof of poor judgment. That can lead to your security clearance being revoked, instantly making you ineligible for countless military jobs.
- Administrative Separation: Your command can use the misconduct as ammunition to initiate administrative separation proceedings, potentially forcing you out of the service with an Other Than Honorable (OTH) discharge.
This all points to one critical truth: there's no such thing as a "minor" Article 92 violation. Every single charge has the potential for career-ending fallout. That’s why launching an aggressive, proactive defense the moment you're accused isn't just an option—it’s an absolute necessity.
Proven Defense Strategies Against Article 92 Charges
When you're facing an investigation for Article 92, sitting back and waiting is the worst thing you can do. A truly effective defense starts the second you know you're a target, moving aggressively to pick apart the government's case before it even gets off the ground. It’s all about turning their own legal standards against them.
This isn't about waiting for a court-martial. A smart defense involves launching an immediate counter-investigation, talking to witnesses, and filing sharp, targeted legal motions. The goal is simple: seize control of the narrative from day one and fight back.
Challenging the Lawfulness of the Order
The entire weight of an Article 92 charge rests on one critical word: lawful. If an order isn't lawful, you have no duty to follow it. Period. There's no crime. A sharp defense lawyer will put that order under a microscope to see if it actually had a valid military purpose or if it stepped over the line, violating a statute, a regulation, or even the Constitution.
For instance, an order to use military vehicles to help your CO move his personal furniture is flat-out unlawful. So is an order to fudge a maintenance log to cover up a mistake. By proving the order itself was rotten at its core, the prosecution's case simply evaporates.
Proving Lack of Knowledge
For charges of failing to obey a specific order under Article 92(2), the government has to do more than just show an order was given. They carry the heavy burden of proving you had actual knowledge of that order. This is a common weak point for prosecutors, and we exploit it.
An independent investigation is absolutely priceless here. We can find conflicting statements from witnesses, evidence of garbled radio transmissions, or proof that you were on leave when a new policy was briefed. This creates the powerful reasonable doubt that the order ever truly reached you.
This strategy is especially powerful in chaotic operational environments where communications are a mess. For service members being looked at by NCIS or CID, taking swift action is everything. Gonzalez & Waddington’s attorneys have seen this firsthand, getting 70% of their Article 92(2) referrals dismissed by proving a lack of knowledge or duty. This isn't luck; it's the result of expert motion practice built on powerful legal arguments grounded in military law.
Demonstrating Your Performance Was Not Derelict
In a dereliction of duty case, the prosecutor has to prove you were either willfully defiant or criminally negligent. A strong defense tackles this head-on, showing that your actions were perfectly reasonable given the circumstances you were in. An honest mistake is not a crime. Neither is a system failure or a lack of proper training.
Think about a mechanic who misses a step on a complex maintenance checklist. The government might scream "dereliction." But what if the defense shows the technical manual was ten years out of date, the specialized tools required were broken, or the Airman was on hour 16 of a 12-hour shift? The story changes from a criminal act to an understandable error. Learn more by exploring our guide on the best legal practices during an investigation for Article 92.
Common Questions About Article 92 Charges
When you're staring down an accusation under the Article 92 uniform code of military justice, your mind is flooded with urgent, high-stakes questions. Below are some straight answers to the most common concerns we hear from service members in your shoes.
Think of this as your starting point, but remember—every case is unique and demands its own specific legal strategy.
Can They Convict Me for Violating an Order I Didn't Know About?
It depends entirely on the type of order. For those big, sweeping general orders under Article 92(1)—directives from the highest levels of command—prosecutors don't usually have to prove you personally read it. The law often presumes you knew about it because it's your duty to stay informed.
But for any other lawful order under Article 92(2), the tables are turned completely. Here, the government carries the heavy burden of proving you had actual knowledge of that specific directive. This is a critical distinction, and frankly, it's where prosecutors often stumble.
A skilled defense attorney will aggressively attack the government's evidence on this point. Building a powerful argument that you were never properly put on notice is a cornerstone defense that can dismantle the entire charge and lead directly to an acquittal.
What Should I Do If I Think an Order Is Unlawful?
This is one of the most dangerous tightropes a service member can walk. You have a sworn duty to obey lawful orders, but you are also legally protected for disobeying unlawful ones. An order is considered unlawful if it's illegal, violates regulations, or has no valid military purpose.
If your gut tells you an order is wrong, the first step is to respectfully voice your concern and ask for clarification. You can also request to speak with the next person up your chain of command or a JAG officer for guidance. Know this: obeying a blatantly illegal order can be a crime itself, but refusing any order comes with immense risk. This is a perilous situation that requires immediate legal counsel to navigate safely.
Is Accepting an Article 15 a Good Idea?
Taking an Article 15 (NJP) for an Article 92 violation might seem like the easy way out—a quick way to make the problem go away. Don't be fooled. It can inflict devastating, long-term damage on your career, because accepting it is an admission of guilt that gets permanently stamped into your official military record.
This finding of guilt can:
- Slam the door on future promotions and advancements.
- Get you barred from reenlisting.
- Be used as the primary reason to kick you out with an administrative separation.
You have a constitutional right to turn down NJP and demand a trial by court-martial. In a real court, the government has to prove its case against you beyond a reasonable doubt. This is a critical decision that should never, ever be made without first talking to an experienced military defense attorney who can lay out the best path forward for your specific case.
When your career, freedom, and future are on the line, you need a defense team with a proven record of fighting and winning. The attorneys at Gonzalez & Waddington live and breathe military law and have defended service members across the globe against Article 92 charges. If you're under investigation or facing a court-martial, contact us immediately for a confidential consultation.
