CORE CRIMINAL LAW SUBJECTS: Crimes: Article 92 - Failure to Obey Order or Regulation


2011 (September Term)

United States v. Hayes, 71 M.J. 112 (the elements of Article 92(3), UCMJ, dereliction of duty, are as follows: (1) that the accused had certain duties, (2) that the accused knew or reasonably should have known of the duties, and (3) that the accused was willfully, or through neglect or culpable inefficiency, derelict in the performance of those duties).

(Article 92(3), UCMJ, dereliction of duty, requires the existence of a duty; the MCM states that the duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service; all of the examples of duties listed in the MCM constitute military-specific duties; CAAF has never affirmed a conviction for dereliction of duty imposed by state law alone). 

(Article 92(3), UCMJ, dereliction of duty, requires proof of certain military duties; it does not assume such duties).  

(evidence that appellant consumed alcohol in a hotel room and the hotel’s casino while under the age of 21 was legally insufficient for a conviction under Article 92(3), UCMJ, dereliction of duty, where the government failed to establish through competent evidence that there was a specific military duty under Article 92(3), UCMJ, to either obey state laws in general, or, more specifically, the Nevada state law prohibiting consumption of alcohol by persons under the age of 21 in any saloon, resort, or place where alcohol is sold; although it was uncontested that consuming alcohol in any saloon, resort, or place where alcohol is sold while under the age of 21 was a violation of Nevada state law, when the evidence in the record was viewed in the light most favorable to the prosecution, it was insufficient for any rational trier of fact to conclude that appellant was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law, or in the alternative, all state laws in Nevada - an obligation imposed on all citizens within the state generally). 

United States v. Goodman, 70 M.J. 396 (because the violation of a general regulation is a general-intent offense, mistake of fact is not a defense unless the mistake is both honest and reasonable; the honest belief prong is subjective, while the reasonableness prong is objective).

2009 (September Term)


United States v. Serianne, 69 M.J. 8 (the self-reporting requirement imposed on sailors by a Chief of Naval Operations instruction to notify their commanding officer of an arrest by civil authorities for an alcohol-related offense did not provide those sailors with the rights afforded by a superior competent authority in a self-reporting exclusion in Article 1137 of the US Navy Regulations, an exclusion that eliminates the reporting requirement in instances where a person is already criminally involved in offenses he would otherwise be required to report; as such, the instruction did not provide a legal basis for finding the accused derelict in the performance of a required duty when he failed to report an arrest for driving under the influence of alcohol, and the military judge did not err in dismissing the charge).  


United States v. Harmon, 68 M.J. 325 (willful dereliction of duty requires:  (1) that the accused had certain duties; (2) that the accused knew or reasonably should have known of the duties; and (3) that the accused was willfully derelict in the performance of those duties). 


(appellant’s conduct was legally sufficient to support her conviction of dereliction of duty for failing to perform her duty to protect Iraqi detainees from abuse, cruelty, and maltreatment while she was serving as a guard in an Iraqi prison, where her participation went beyond mere acquiescence or negligent dereliction of duty; she actively and willingly participated in attaching wires to a detainee, writing “rapeist” on a detainee’s naked thigh, taking photos, and encouraging others’ abuse; although appellant had received training in the care, custody, and control of detainees as well as in the basic requirements of the Geneva Conventions regarding their treatment, she did not require specialized training to know that her actions were wrong, as evidenced by her own admissions as well as her colleagues’ decisions to report the abuses). 

 

2007 (September Term)

 

United States v. Ranney, 67 M.J. 297 (although the evidence was legally insufficient to support a finding of guilty of willfully disobeying a superior commissioned officer’s order revoking appellant’s driving privileges where base security forces issued the order in a form letter under the signature, and with the authority of the base traffic review officer, but without his personal involvement or knowledge, the evidence was legally sufficient to affirm a finding of guilty to the lesser included offense of failure to obey an order, in violation of Article 92, UCMJ). 

 

2006


United States v. Kisala, 64 M.J. 50 (fundamental to an effective armed force is the obligation of obedience to lawful orders; reflecting the authority of this principle, an order is presumed to be lawful, and a subordinate disobeys an order at his own peril; however, a servicemember may challenge the lawfulness of an order at the time it is given or in later disciplinary proceedings).

 

(the essential attributes of a lawful order that sustain the presumption of lawfulness include:  (1) issuance by competent authority – a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty; in light of the presumption of lawfulness, long-standing principles of military justice place the burden of rebutting this presumption on the accused).    


(there is a presumption that orders are lawful; under this presumption, the servicemember challenging the order bears the burden of demonstrating the illegality).

 

(appellant, charged with disobeying an order to receive an anthrax vaccination, failed to rebut the presumption that the order to receive the vaccination was lawful; the National Institute of Health licensed the vaccine for use against anthrax, and the Food and Drug Administration has not actively decided to suspend or revoke the license; the vaccine’s license has never been suspended or revoked; and appellant has not shown that the license was erroneously granted).  

 

(because appellant failed to establish that the anthrax vaccine is an investigational new drug or a drug unapproved for its applied use, the notice requirements of 10 U.S.C. § 1107 that require the Secretary of Defense to give servicemembers notice that such a new or unapproved drug will be administered were not implicated by the order to receive the vaccine; additionally, Exec. Order 13,139, directing that DoD obtain informed consent from each individual to whom an investigational new drug is to be administered unless the Secretary of Defense can justify a need for a waiver of informed consent from the President, was not implicated by the order to receive the vaccine). 

 

(the anthrax vaccine is not an investigational drug that would implicate 10 U.S.C. § 1107 or Exec. Order 13,139). 

 

United States v. Pope, 63 M.J. 68 (the elements of an Article 92, UCMJ, violation for failure to obey a lawful general order or regulation are:  (a) a certain lawful general order or regulation was in effect; (b) the accused had a duty to obey that order or regulation; and (c) the accused violated or failed to obey the order or regulation).

 

(viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that appellant violated an Air Force recruiting regulation by engaging in verbal conduct of a sexual nature that created an intimidating, hostile, or offensive environment; comments need not be expressly or explicitly sexual to be of a sexual nature; sexual innuendo, or a recruiter’s implied invitation to an applicant that latently suggests sexual activity, may be sexual in nature). 

 

(to withstand a challenge on vagueness grounds, a regulation must provide sufficient notice so that a servicemember can reasonably understand that his conduct is proscribed; possible sources of fair notice include:  federal law, state law, military case law, military custom and usage, and military regulations; training, pamphlets, and other materials may also serve as sources of notice because they may give context to regulations and explain the differences between permissible and impermissible behavior). 

 

(an Air Force recruiting regulation prohibiting sexual harassment of recruits was not unconstitutionally vague on the ground that it did not give fair notice that such conduct could be subject to criminal sanction; the regulation expressly stated that failure to observe its prohibitions may result in punishment under Article 92, UCMJ, and that compliance was mandatory; in addition, recruiter school placed appellant on notice that his conduct was subject to criminal sanction by instructing him on proper comportment with applicants and informing him of rules prohibiting sexual misconduct). 

 

(an Air Force recruiting regulation prohibiting sexual harassment of recruits was not unconstitutionally vague as applied to conduct of appellant in placing his hand on an applicant’s knee while riding alone with her in a car, inviting an applicant to his apartment at night to take pictures, or telling an applicant that her appearance was driving him crazy and was so sexy; the regulation was clear that sexual conduct by recruiters with applicants was prohibited and that recruiters must be totally professional in their relationships with applicants; it was not necessary for the regulation to identify every possible nook and cranny in the line of conduct, for the line is straight and narrow; given the evolving and innumerable ways in which sexually offensive conduct may occur in the recruiting context, the Air Force was not required, as a matter of law, to expressly set forth all conceivable instances of impermissible conduct; the language of the regulation provided ample discussion of the types of behavior that were prohibited and a reasonable person would have been on notice that misconduct of the sort engaged in by appellant was subject to criminal sanction). 



2005


United States v. Deisher
, 61 M.J. 313 (when a servicemember is charged with violation of a lawful order, the legality of the order is an issue of law that must be decided by the military judge, not the court-martial panel). 


(an order is presumed to be lawful, and the accused bears the burden of rebutting the presumption).


(the essential attributes of a lawful order include:  (1) issuance by competent authority -- a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty). 


(an accused may challenge an order on the grounds that it would require the recipient to perform an illegal act or that it conflicts with that person’s statutory or constitutional rights).


(the lawfulness of an order, like other issues of law, may involve questions of fact that must be addressed by the military judge for the limited purpose of resolving the issue of law; the consideration of such factual matters by the military judge in the course of addressing an issue of law is distinct from, and does not preempt, the responsibility of a court-martial panel to address factual matters pertinent to the elements of an offense in the course of returning findings on the issue of guilt or innocence). 


(when the defense moves to dismiss a charge on the grounds that the alleged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful; in the course of acting on such a motion, if the military judge rules that a specific set of words would constitute a lawful order under a specific set of circumstances, that is a preliminary ruling; the military judge’s ruling does not relieve the prosecution of the responsibility during its case-in-chief of proving beyond a reasonable doubt the facts necessary to establish the elements of the offense).  


(the lawfulness of an order is not an element, but is an issue of law to be resolved by the military judge, not members; in this case, the military judge committed prejudicial error in ruling on the motion to dismiss by treating both the issue of lawfulness and the predicate factual aspects of the lawfulness issue as matters to be resolved by the members and by submitting the issue of lawfulness to the members). 


2003

United States v. Moore, 58 MJ 466 (a superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril; nevertheless, to sustain this presumption, the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service; moreover, the order may not conflict with the statutory or constitutional rights of the person receiving the order and must be a specific mandate to do or not to do a specific act; in sum, an order is presumed lawful, provided it has a valid military purpose and is a clear, specific, narrowly drawn mandate).

(since United States v. Wysong, 9 C.M.A. 249, 26 C.M.R. 29 (1958), this Court has refined its approach to orders, focusing more directly on the specific conduct at issue in the context of the purposes and language of the order; for example, in United States v. Womack, 29 M.J. 88 (C.M.A. 1989), the Court held that a safe-sex order that arguably applied to civilians having no connection with the military was constitutional given appellant’s specific conduct, which did not violate the order in this way; given the Court’s new direction, in analyzing the no-contact order’s breadth in this case, we decline to follow Wysong and, instead, employ the contextual approach favored in Womack).

(the Supreme Court has long recognized the principle that the military is, by necessity, a specialized society; the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it; given this distinction, the weighing of First Amendment considerations within the military is such that the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our Country; thus, military authorities may curtail a servicemember’s communication and association with other individuals -- and thus burden the servicemember’s freedom of speech and association -- provided the authorities act with a valid military purpose and issue a clear, specific, narrowly drawn mandate).

(in this case where appellant was issued a no-contact order directing him not to converse in any way with any civilian employees of the galley, appellant’s contact with the civilian employee involved the type of unlawful, service-discrediting conduct that may be prohibited by military orders; given the specific context in which the no-contact order was issued and the manner in which it was violated, the Court finds that the order was not unconstitutionally overbroad in violation of the First Amendment).

(under the Due Process Clause of the Fifth Amendment, no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes; all are entitled to be informed as to what the State commands or forbids; here, the central question of this "void for vagueness" doctrine is whether appellant had actual knowledge of the order’s nature and terms, and whether he was on fair notice as to the particular conduct which was prohibited; void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his or her contemplated conduct is proscribed; in evaluating the sufficiency of notice, the Court examines the order in light of the conduct with which appellant was charged).

(in this case, the order directed appellant not to converse in any way with any civilian employees of the galley; the order was sufficiently clear and certain to have informed appellant that to speak with any civilian employee of the galley was to violate the order; because the order’s language was sufficiently clear, specific, and narrowly drawn under the circumstances of this case, the Court finds that the order was not unconstitutionally vague and indefinite in violation of the Fifth Amendment).

2002

United States v. Humpherys, 57 MJ 83 (evidence was legally sufficient to uphold appellant’s conviction for violating a regulatory prohibition against soliciting non-professional relationships on a theory that appellant made inappropriate comments as a way of testing the reactions of trainees to determine if he could pursue a relationship with a particular trainee; that evidence included: (1) corroborated testimony that appellant made the remark; (2) the testimony of three female soldiers as evidence that the remark was made with a non-innocent intent, a predicate to initiating a prohibited relationship; (3) testimony of two female soldiers that appellant made inappropriate comments to them prior to adulterous affairs; and (4) testimony that appellant, on another occasion, improperly "caressed" a female trainee’s head under the guise of checking for a fever).

United States v. Jeffers, 57 MJ 13 (in considering challenges to the breadth of an order, Court will examine the specific conduct at issue rather than the theoretical limits of the order).

(an order to have no social contact with a given individual was definite, specific, and importantly, uncontested by defense counsel at trial; there was absolutely no restriction on appellant’s ability to communicate with that individual, the company clerk, on official business).

(order to have no social contact with a named person did not inhibit appellant’s ability to prepare his defense; nothing in the order could have been interpreted as restricting appellant’s access to that person, a potential witness against him, so long as the meeting with that individual was official business, and there were no facts developed at trial, either through motions, objections or testimony, that showed the order interfered with an attorney-client relationship, or impaired defense counsel’s trial preparation).

(evidence that appellant violated an order to have no social contact with a given person was legally sufficient; the length of time that person remained in appellant’s room, coupled with the fact that the contact between appellant and the named person ended only after a noncommissioned officer discovered that person in appellant’s room and removed her, are consistent with the specification’s allegation that appellant’s contact with the individual was social, in violation of the commander’s order).

(questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law; the legality of an act is normally a question of law – "lawfulness" is a question of law).

2001

United States v. Pacheco, 56 MJ 1 (under the standard for legal sufficiency of evidence, appellant’s knowledge of his duty to safeguard a weapon from unlawful appropriation or retention – including appropriation or retention by unit members to obtain and keep weapons as trophies – and his willful dereliction of this duty are established by the evidence that after he was informed that the taking of weapons as trophies was not permitted, appellant failed either to return the weapon or to inform the authorities of its taking).

United States v. New, 55 MJ 95 (lawfulness of an order is not a discrete element of an offense under Article 92, and the military judge properly decided the issue of lawfulness as a question of law in this case; in a prosecution for violation of an order or regulation, the Constitution does not require that the validity of the order or regulation be decided by a jury).

(when Congress inserted the word "lawful" in the statutes governing disobedience, it was addressing the judicial role of the court-martial panel rather than creating an element for consideration by a factfinder; the inclusion of the word "lawful" did not add a separate element to the offense of violating a regulation or order; the word "lawful" reflects a question of law – the validity of the regulation or order with respect to a superior source of law – that is inherent in the terms "order" and "regulation" under Article 92).

(because lawfulness of an order is a question of law, the military judge did not err by resolving it himself without submission to the members).

(an order to wear United Nations patches and cap was lawful in that it was properly authorized, related to a military duty, and violated no applicable service uniform regulations).

(the question of whether the military judge correctly determined that an order was lawful is reviewed on a de novo basis).

(the test for assessing the lawfulness of an order includes that the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service).

(orders are clothed with an inference of lawfulness).

(an appellant has the burden to establish that an order is not lawful).

(arguments that wearing United Nations insignia violates Army uniform regulation by transferring allegiance to the United Nations and that orders stem from an illegal deployment of the Armed Forces fail because they unacceptably substitute appellant’s personal judgment of the legality of an order for that of his superiors and the Federal Government).

(uniform requirements relate to a military duty, and consequently order to comply with uniform requirements meets the "military duty" test for lawfulness of an order, where that requirement promotes the basic Former Yugoslavian Republic of Macedonia United Nations Preventative Deployment Force military mission or safeguards discipline and morale of deployed troops).

(it is not a defense to a charge of disobeying an order in violation of Article 92 for appellant to claim that the order is illegal based on his interpretation of applicable law; there is no constitutional right or statutory provision that gave appellant authority for a self-help remedy of disobedience).

(the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard).

(military judge properly declined to rule on the constitutionality of the President’s decision to deploy the Armed Forces in Former Yugoslavian Republic of Macedonia as a nonjusticiable political question; courts have consistently refused to consider the issue of the President’s use of the Armed Forces).

1999

United States v. McDaniels, 50 MJ 407 (orders requiring the performance of military duties are presumed to be lawful when issued by superiors, but that order must relate to a military duty.  See para. 14c(2)(a)(i) and (iii), Part IV, Manual for Courts-Martial, United States (1995 ed.)).

(an order which interferes with private rights is permissible where there is a valid military purpose; driving on base was a matter well within the scope of military authority, which includes protecting civilians from injury at the hands of military personnel).

(where appellant was diagnosed as suffering from narcolepsy, an order not to drive a POV had a valid military purpose and was neither overly broad nor an impermissible burden on appellant’s personal rights).

United States v. Hargrove, 51 MJ 408 (minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors; see paragraph 16e(2)(Note), Part IV, Manual for Courts-Martial, United States (1998 ed.).


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