Disobey a superior officer: What are the defenses UCMJ Article 90 and UCMJ Article 92? What are lawful orders?

UCMJ Article 90 and UCMJ Article 92

UCMJ Article 90 and UCMJ Article 92 applies when a service member acts to disobey a superior officer or intentionally fails to obey a lawful command given by a superior commissioned officer. Obedience to UCMJ Article 90 is critical to the military because it establishes command authority. A violation of UCMJ Article 90 includes when ”a  service member who strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against the officer while the officer is in the execution of his or her office.” Command Authority ensures that orders from superior officers are respected and followed. Not following orders would harm operational effectiveness. Article 90 reflects the critical need for strict adherence to military hierarchy and chain of command, ensuring that the armed forces operate efficiently and cohesively. Violations undermine authority and discipline, which can jeopardize mission success and the safety of personnel. UCMJ Article 90 also provides legal protection for officers who are responsible for leading and managing service members.

Article 92 is like UCMJ Article 90 in that both establish strict obligations for military personnel to comply with lawful orders and regulations and there are recognized exceptions or defenses that can apply in specific circumstances when someone tries to disobey a superior officer .   Military personnel are only required to obey lawful orders.

Unlawful orders and defenses to Article 92 and Article 90

According to UCMJ Law Article 92 An order is unlawful if it violates the Constitution, U.S. laws, or military regulations and it directs a service member to commit a crime or unethical act.

Service members and their leaders must not disobey a superior officer if the orders they are given are lawful. Service members and their leaders might refuse to follow orders that are unlawful. One exception to Article 90 says a service member is not required to obey an order that violates the law. Every service member takes an oath that includes obeying lawful orders. Service members and leaders take this oath seriously.

Specific to UCMJ Article 92 the ambiguity of the issued order can contribute to the defense of someone accused of violating it. If the order or regulation was unclear or could reasonably be interpreted in multiple ways, the accused might not be guilty of attempting to disobey a superior officer . The burden falls on the prosecution to prove that the order was clear, and the accused willfully violated it.

What are unlawful orders?

An unlawful order is a directive issued by someone in a position of authority that violates the law, a person’s rights, or ethical principles. Following such orders can have legal consequences for both the person giving the order and the one executing it. Here are some examples of unlawful orders:

A superior orders a soldier to engage in war crimes, such as:

• Targeting civilians intentionally.
• Torturing prisoners of war.
• Looting or pillaging property.
• A commanding officer orders personnel to suppress lawful protests in violation of First Amendment rights.
• Violations of International Laws.

Some other examples may be an Abuse of Authority:

• Misuse of resources: A public official orders employees to use government funds or equipment for personal gain.
• Harassment or retaliation: A superior orders someone to engage in workplace bullying or to retaliate against a whistleblower.

Penalties for violating UCMJ Article 90 and UCMJ Article 92

Penalties for violating UCMJ Article 90 and UCMJ Article 92, or the willful disobedience of a lawful order, are up to 5 years of confinement, a dishonorable discharge, forfeiture of all pay and allowances.

Pete Kageleiry, Jr. is a retired Army JAG Officer and has been in practice for more than 25 years. If you are accused of violating UCMJ Article 90 and UCMJ Article 92, contact us or call 757-504-2815.