Article 92 of the Uniform Code of Military Justice (UCMJ) is "Failure to Obey an Order or Regulation" (written or stated). The U.S. military considers it a dereliction of duty when soldiers are unable or unwilling to perform the job assigned to military personnel.
Examples include sleeping while on duty, watch, or sentry; drunken or self-injury to the point of unable to perform his or her duties; and shooting oneself to get out of required duties, deployments, or other elements of the job. The military also considers it a dereliction of duty to perform a job so poorly that innocent non-combatants or one's own troops get injured or killed.
Elements of Article 92
There are several key elements to Article 92 that must be considered:
- Violation of a lawful general order or regulation: The individual must have violated a general order or regulation that they had a duty to obey.
- Failure to obey other lawful order: The individual must have known about the order, had a duty to obey it, and then failed to do so.
- Dereliction in the performance of duties: The accused must have had certain duties that he or she, through neglect or culpable inefficiency, simply failed to perform.
In all cases, these elements involve orders that were issued lawfully. All orders or regulations are lawful unless they violate the Constitution, the laws of the United States, or lawful superior orders. An order may be unlawful if the officer who gave the order did not have the authority to give it.
Ignorance of the order is not always an excuse, but sometimes a lack of knowledge of an order or regulation can protect a service member from prosecution. However, prosecutors can prove knowledge of the order with circumstantial evidence.
Article 92 is one of the punitive articles of the UCMJ, which means that someone accused of violating the article can be tried by court martial.
Not all general orders or regulations can be enforced: some of them only issue guidelines or advice, and therefore do not fall under Article 92.
In some cases, it can be a violation of Article 92 to not follow an order from someone who is not a superior officer, provided that the accused had a duty to obey the order, such as one issued by a sentinel or a member of the armed forces police.
Dereliction of Duty Additional Considerations
Dereliction in the performance of duties is a special circumstance with many nuances. Someone is derelict when they intentionally fail to perform duties, or perform them in such an inefficient manner that they have no excuse. Individuals can escape punishment under Article 92 if they are determined to be simply inept at their duties.
A duty can be established by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.
To be convicted, the accused must be shown to have knowledge of duties, and only circumstantial evidence is needed to prove this. Prosecution may also only need to show that even if the accused didn't have direct knowledge of the duties, the individual reasonably should have known about them. This can be shown through training manuals, customs of the service, or testimony, for example.