MCM on art.92 Disobeying Order

Article 92 -- Failure to obey order or regulation 2005 MCM Article 92-16 a. Text. "Any person subject to this chapter who -(1) violates or fails to obey any lawful general order or regulation; (2) 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; *** " b. Elements. (1) Violation of or failure to obey a lawful general order or regulation. (a) That there was in effect a certain lawful general order or regulation; (b) That the accused had a duty to obey it; and (c) That the accused violated or failed to obey the order or regulation. (2) Failure to obey other lawful order. (a) That a member of the armed forces issued a certain lawful order; (b) That the accused had knowledge of the order; (c) That the accused had a duty to obey the order; and (d) That the accused failed to obey the order. *** c. Explanation. (1) Violation of or failure to obey a lawful general order or regulation. (a) Authority to issue general orders and regulations. General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by: (i) an officer having general court-martial jurisdiction; (ii) a general or flag officer in command; or (iii) a commander superior to (i) or (ii). (b) Effect of change of command on validity of order. A general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed by another officer who is not a general or flag officer. (c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a). (d) Knowledge. Knowledge of a general order or regulation need not be alleged or proved, as knowledge is not an element of this offense and a lack of knowledge does not constitute a defense. (e) Enforceability. Not all provisions in general orders or regulations can be enforced under Article 92(1). Regulations which only supply general guidelines or advice for conducting military functions may not be enforceable under Article 92(1). (2) Violation of or failure to obey other lawful order. (a) Scope. Article 92(2) includes all other lawful orders which may be issued by a member of the armed forces, violations of which are not chargeable under Article 90, 91, or 92(1). It includes the violation of written regulations which are not general regulations. See also subparagraph (1)(e) above as applicable. (b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the order or regulation. Knowledge of the order may be proved by circumstantial evidence. (c) Duty to obey order. (i) From a superior. A member of one armed force who is senior in rank to a member of another armed force is the superior of that member with authority to issue orders which that member has a duty to obey under the same circumstances as a commissioned officer of one armed force is the superior commissioned officer of a member of another armed force for the purposes of Articles 89 and 90. See paragraph 13c(1). 2 (ii) From one not a superior. Failure to obey the lawful order of one not a superior is an offense under Article 92(2), provided the accused had a duty to obey the order, such as one issued by a sentinel or a member of the armed forces police. See paragraph 15b(2) if the order was issued by a warrant, noncommissioned, or petty officer in the execution of office. *** d. Lesser included offense. Article 80 -- attempts e. Maximum punishment. (1) Violation or failure to obey lawful general order or regulation. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Violation of failure to obey other lawful order. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. [Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed elsewhere for that particular offense.] *** f. Sample specifications. (1) Violation or failure to obey lawful general order or regulation. In that (personal jurisdiction data), did, (at/on board -- location) (subject-matter jurisdiction data, if required), on or about 20 , (violate) (fail to obey) a lawful general (order) (regulation), to wit: (paragraph , (Army) (Air Force) Regulation , dated 20 ) (Article , U.S. Navy Regulations, dated 20 ) (General Order No , U.S. Navy, dated 20 ) ( ), by (wrongfully) (2) Violation or failure to obey other lawful written order. In that (personal jurisdiction data), having knowledge of a lawful order issued by , to wit: (paragraph ,( the Combat Group Regulation No. ) (U S S , 3 Regulationtion ), dated ) ( ), an order which it was his/her duty to obey, did, (at/on board -- location) (subjectmatter jurisdiction data, if required), on or about 20 , fail to obey the same by (wrongfully) . (3) Failure to obey other lawful order. In that , (personal jurisdiction data) having knowledge of a lawful order issued by (to submit to certain medical treatment) (to ) (not to ) ( ), an order which it was his/her duty to obey, did (at/on board -- location) (subject-matter jurisdiction data, if required), on or about 20 , fail to obey the same (by (wrongfully) ). *** 4