"An order requiring the performance of a military duty or act may be inferred to be lawful and it is

disobeyed at the peril of the subordinate." MCM 2008 Ed, 14.c.(2)(a)(i), p. IV-19.

Lawful Orders - Manual of Courts-Martial

And the case of Lt. Col. Terrence Lakin
by nolu chan
April 14, 2010
Appended at end complete paragraphs 14-16 of Manual of Courts-Martial, 2008 Edition, pp.
IV-18 thru IV-25; covering:

UCMJ Article 90 Assaulting or willfully disobeying superior commissioned officer

UCMJ Article 91 Insubordinate conduct toward warrant officer, noncommissioned
officer, or petty officer
UCMJ Article 92 Failure to obey order or regulation

There is wild speculation around the blogosphere that a court-martial of Lt. Col. Lakin will
potentially involve purported evidence calling into question the eligibility of Barack Obama to
serve as President or Commander-in-Chief of the armed forces. The eligibility of President
Obama is irrelevant to the prospective military charges and proceedings.
The Manual of Courts-Martial, 2008 Edition (MCM), states at paragraph 14.c(2)(a)(i), "An order
requiring the performance of a military duty or act may be inferred to be lawful and it is
disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order,
such as one that directs the commission of a crime." The order to deploy will be inferred to be
lawful.
MCM paragraph 14 also clearly sets forth that "[t]he lawfulness of an order is a question of law
to be determined by the military judge." The military judge will determine the lawfulness of the
order, not the eligibility of Barack Obama to be President or Commander in Chief of the armed
forces.
MCM paragraph 14 clearly sets forth that "[t]he commissioned officer issuing the order must
have authority to give such an order. Authorization may be based on law, regulation, or custom
of the service." The commissioned officer issuing the order is not President Barack Obama.
Barack Obama is a civilian.
MCM paragraph 14.c(2)(a)(v) states, "[t]he order must not conflict with the statutory or
constitutional rights of the person receiving the order." There is no statutory or constitutional

provision giving Lt. Col. Lakin some personal right to demand that his superior officers provide
him with a copy of any documentation regarding President Barack Obama.
None of the factors to be considered regarding a charge of disobedience of an order, or regarding
the lawfulness of such order, relates to the eligibility of President Barack Obama.
Manual of Courts-Martial, 2008 Edition, page IV-24, MCM Paragraph 16
16. Article 92 Failure to obey order or regulation
[...]
(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). [nc - provided below]
[...]
(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).
(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
Manual of Courts-Martial, 2008 Edition, page IV-19-20, MCM Paragraph 14
14. Article 90 Assaulting or willfully disobeying superior commissioned officer

(2) Disobeying superior commissioned officer.

(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty
or act may be inferred to be lawful and it is disobeyed at the peril of the
subordinate. This inference does not apply to a patently illegal order, such as one
that directs the commission of a crime.
(ii) Determination of lawfulness. The lawfulness of an order is a question of law
to be determined by the military judge.
(iii) Authority of issuing officer. The commissioned officer issuing the order must
have authority to give such an order. Authorization may be based on law,
regulation, or custom of the service.
(iv) Relationship to military duty. 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. The order may not, without such a valid military purpose, interfere with
private rights or personal affairs. However, the dictates of a persons conscience,
religion, or personal philosophy cannot justify or excuse the disobedience of an
otherwise lawful order. Disobedience of an order which has for its sole object the
attainment of some private end, or which is given for the sole purpose of
increasing the penalty for an offense which it is expected the accused may
commit, is not punishable under this article.
(v) Relationship to statutory or constitutional rights. The order must not conflict
with the statutory or constitutional rights of the person receiving the order.
(b) Personal nature of the order. The order must be directed specifically to the
subordinate. Violations of regulations, standing orders or directives, or failure to
perform previously established duties are not punishable under this article, but
may violate Article 92.
(c) Form and transmission of the order. As long as the order is understandable,
the form of the order is immaterial, as is the method by which it is transmitted to
the accused.
(d) Specificity of the order. The order must be a specific mandate to do or not to
do a specific act. An exhortation to obey the law or to perform ones military
duty does not constitute an order under this article.

(e) Knowledge. The accused must have actual knowledge of the order and of the
fact that the person issuing the order was the accuseds superior commissioned
officer. Actual knowledge may be proved by circumstantial evidence.
(f) Nature of the disobedience. Willful disobedience is an intentional defiance
of authority. Failure to comply with an order through heedlessness, remissness, or
forgetfulness is not a violation of this article but may violate Article 92.
(g) Time for compliance. When an order requires immediate compliance, an
accuseds declared intent not to obey and the failure to make any move to comply
constitutes disobedience. If an order does not indicate the time within which it is
to be complied with, either expressly or by implication, then a reasonable delay in
compliance does not violate this article. If an order requires performance in the
future, an accuseds present statement of intention to disobey the order does not
constitute disobedience of that order, although carrying out that intention may.
(3) Civilians and discharged prisoners. A discharged prisoner or other civilian
subject to military law (see Article 2) and under the command of a commissioned
officer is subject to the provisions of this article.

Manual of Courts-Martial, 2008 Edition

13.c.(1)(b)

prevented. The victim is not a superior commissioned officer of the accused merely because the
victim is superior in grade to the accused.
(c) Execution of office. It is not necessary that
the superior commissioned officer be in the execution of office at the time of the disrespectful
behavior.
(2) Knowledge. If the accused did not know that
the person against whom the acts or words were
directed was the accuseds superior commissioned
officer, the accused may not be convicted of a violation of this article. Knowledge may be proved by
circumstantial evidence.
(3) Disrespect. Disrespectful behavior is that
which detracts from the respect due the authority
and person of a superior commissioned officer. It
may consist of acts or language, however expressed,
and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive
epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute, or showing a
marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the
presence of the superior officer.
(4) Presence. It is not essential that the disrespectful behavior be in the presence of the superior,
but ordinarily one should not be held accountable
under this article for what was said or done in a
purely private conversation.
(5) Special defenseunprotected victim. A superior commissioned officer whose conduct in relation
to the accused under all the circumstances departs
substantially from the required standards appropriate
to that officers rank or position under similar circumstances loses the protection of this article. That
accused may not be convicted of being disrespectful
to the officer who has so lost the entitlement to
respect protected by Article 89.
d. Lesser included offenses.
(1) Article 117provoking speeches or gestures
(2) Article 80attempts
e. Maximum punishment. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement for 1 year.
f. Sample specification.
In that
(personal jurisdiction data),
did, (at/on boardlocation), on or
IV-18

about
20
, behave himself/
herself with disrespect toward
, his/
her superior commissioned officer, then known by
to be his/her superior commisthe said
sioned officer, by (saying to him/her
,
or words to that effect) (contemptuously turning
from and leaving him/her while he/she, the
said
, was talking to him/her, the
said
) (
).
14. Article 90Assaulting or willfully
disobeying superior commissioned officer
a. Text of statute.
Any person subject to this
chapter who
(1) strikes his superior commissioned officer or
draws or lifts up any weapon or offers any violence against him while he is in the execution of
his office; or
(2) willfully disobeys a lawful command of his
superior commissioned officer;
shall be punished, if the offense is committed in
time of war, by death or such other punishment
as a court-martial may direct, and if the offense
is committed at any other time, by such punishment, other than death, as a court-martial may
direct.
b. Elements.
(1) Striking or assaulting superior commissioned
officer.
(a) That the accused struck, drew, or lifted up a
weapon against, or offered violence against, a certain commissioned officer;
(b) That the officer was the superior commissioned officer of the accused;
(c) That the accused then knew that the officer
was the accuseds superior commissioned officer;
and
(d) That the superior commissioned officer was
then in the execution of office.
(2) Disobeying superior commissioned officer.
(a) That the accused received a lawful command from a certain commissioned officer;
(b) That this officer was the superior commissioned officer of the accused;
(c) That the accused then knew that this officer
was the accuseds superior commissioned officer;
and

Manual of Courts-Martial, 2008 Edition

14.c.(2)(b)

(d) That the accused willfully disobeyed the

lawful command.
c. Explanation.
(1) Striking or assaulting superior commissioned
officer.
(a) Definitions.
(i) Superior commissioned officer. The definitions in paragraph 13c(1)(a) and( b) apply here
and in subparagraph c(2).
(ii) Strikes. Strikes means an intentional
blow, and includes any offensive touching of the
person of an officer, however slight.
(iii) Draws or lifts up any weapon against.
The phrase draws or lifts up any weapon against
covers any simple assault committed in the manner
stated. The drawing of any weapon in an aggressive
manner or the raising or brandishing of the same in
a threatening manner in the presence of and at the
superior is the sort of act proscribed. The raising in
a threatening manner of a firearm, whether or not
loaded, of a club, or of anything by which a serious
blow or injury could be given is included in lifts
up.
(iv) Offers any violence against. The phrase
offers any violence against includes any form of
battery or of mere assault not embraced in the preceding more specific terms strikes and draws or
lifts up. If not executed, the violence must be physically attempted or menaced. A mere threatening in
words is not an offering of violence in the sense of
this article.
(b) Execution of office. An officer is in the
execution of office when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a superior, or military usage. In
general, any striking or use of violence against any
superior officer by a person over whom it is the duty
of that officer to maintain discipline at the time,
would be striking or using violence against the officer in the execution of office. The commanding officer on board a ship or the commanding officer of a
unit in the field is generally considered to be on
duty at all times.
(c) Knowledge. If the accused did not know the
officer was the accuseds superior commissioned officer, the accused may not be convicted of this offense. Knowledge may be proved by circumstantial
evidence.
(d) Defenses. In a prosecution for striking or

assaulting a superior commissioned officer in violation of this article, it is a defense that the accused
acted in the proper discharge of some duty, or that
the victim behaved in a manner toward the accused
such as to lose the protection of this article ( see
paragraph 13c(5)). For example, if the victim initiated an unlawful attack on the accused, this would
deprive the victim of the protection of this article,
and, in addition, could excuse any lesser included
offense of assault as done in self-defense, depending
on the circumstances ( see paragraph 54c; R.C.M.
916(e)).
(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty or act may be
inferred to be lawful and it is disobeyed at the peril
of the subordinate. This inference does not apply to
a patently illegal order, such as one that directs the
commission of a crime.
(ii) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.
(iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be
based on law, regulation, or custom of the service.
(iv) Relationship to military duty. 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. The order may not, without such
a valid military purpose, interfere with private rights
or personal affairs. However, the dictates of a persons conscience, religion, or personal philosophy
cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which
has for its sole object the attainment of some private
end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable
under this article.
(v) Relationship to statutory or constitutional rights. The order must not conflict with the
statutory or constitutional rights of the person receiving the order.
(b) Personal nature of the order. The order
IV-19

Manual of Courts-Martial, 2008 Edition

14.c.(2)(b)

must be directed specifically to the subordinate. Violations of regulations, standing orders or directives,
or failure to perform previously established duties
are not punishable under this article, but may violate
Article 92.
(c) Form and transmission of the order. As
long as the order is understandable, the form of the
order is immaterial, as is the method by which it is
transmitted to the accused.
(d) Specificity of the order. The order must be
a specific mandate to do or not to do a specific act.
An exhortation to obey the law or to perform
ones military duty does not constitute an order
under this article.
(e) Knowledge. The accused must have actual
knowledge of the order and of the fact that the
person issuing the order was the accuseds superior
commissioned officer. Actual knowledge may be
proved by circumstantial evidence.
(f) Nature of the disobedience. Willful disobedience is an intentional defiance of authority. Failure to comply with an order through heedlessness,
remissness, or forgetfulness is not a violation of this
article but may violate Article 92.
(g) Time for compliance. When an order requires immediate compliance, an accuseds declared
intent not to obey and the failure to make any move
to comply constitutes disobedience. If an order does
not indicate the time within which it is to be complied with, either expressly or by implication, then a
reasonable delay in compliance does not violate this
article. If an order requires performance in the future, an accuseds present statement of intention to
disobey the order does not constitute disobedience of
that order, although carrying out that intention may.
(3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military
law (see Article 2) and under the command of a
commissioned officer is subject to the provisions of
this article.
d. Lesser included offenses.
(1) Striking superior commissioned officer in execution of office.
(a) Article 90drawing or lifting up a weapon
or offering violence to superior commissioned officer in execution of office
(b) Article 128assault; assault consummated
by a battery; assault with a dangerous weapon
IV-20

(c) Article 128assault or assault consummated by a battery upon commissioned officer not in
the execution of office
(d) Article 80attempts
(2) Drawing or lifting up a weapon or offering
violence to superior commissioned officer in execution of office.
(a) Article 128assault, assault with dangerous weapon
(b) Article 128assault upon a commissioned
officer not in the execution of office
(c) Article 80attempts
(3) Willfully disobeying lawful order of superior
commissioned officer.
(a) Article 92failure to obey lawful order
(b) Article 89disrespect to superior commissioned officer
(c) Article 80attempts
e. Maximum punishment.
(1) Striking, drawing, or lifting up any weapon or
offering any violence to superior commissioned officer in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
(2) Willfully disobeying a lawful order of superior commissioned officer. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 5 years.
(3) In time of war. Death or such other punishment as a court-martial may direct.
f. Sample specifications.
(1) Striking superior commissioned officer.
(personal jurisdiction data),
In that
did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or
about
20
, (a time of war)
strike
, his/her superior commissioned
officer, then known by the said
to be
his/her superior commissioned officer, who was then
in the execution of his/her office, (in) (on)
the
with (a) (his/her)
.
(2) Drawing or lifting up a weapon against superior commissioned officer.
In that
(personal jurisdiction data),
did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or
about
20
, (a time of war) (draw)
lift up) a weapon, to wit: a
,

Manual of Courts-Martial, 2008 Edition

15.b.(3)(f)

against
, his/her superior commissioned
officer, then known by the said
to be
his/her superior commissioned officer, who was then
in the execution of his/her office.
(3) Offering violence to superior commissioned
officer.
In that
(personal jurisdiction data),
did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or
about
20
, (a time of war) offer
violence against
, his/her superior commissioned officer, then known by the saidto be his/her superior commissioned
officer, who was then in the execution of his/her
office, by
.
(4) Willful disobedience of superior commissioned officer.
In that
(personal jurisdiction data),
having received a lawful command
from
, his/her superior commissioned
officer, then known by the said
to be
his/her superior commissioned officer,
to
, or words to that effect, did, (at/on
b o a r d l o c a t i o n ) , o n o r
about
20
, willfully disobey
the same.
15. Article 91Insubordinate conduct
toward warrant officer, noncommissioned
officer, or petty officer
a. Text of statute.
Any warrant officer or enlisted member who
(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that
officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty
officer; or
(3) treats with contempt or is disrespectful in
language or deportment toward a warrant officer, noncommissioned officer, or petty officer
while that officer is in the execution of his office;
shall be punished as a court-martial may direct.
b. Elements.
(1) Striking or assaulting warrant, noncommissioned, or petty officer.
(a) That the accused was a warrant officer or
enlisted member;

(b) That the accused struck or assaulted a certain warrant, noncommissioned, or petty officer;
(c) That the striking or assault was committed
while the victim was in the execution of office; and
(d) That the accused then knew that the person
struck or assaulted was a warrant, noncommissioned,
or petty officer.
[Note: If the victim was the superior noncommissioned or petty officer of the accused, add the following elements]
(e) That the victim was the superior noncommissioned, or petty officer of the accused; and
(f) That the accused then knew that the person
struck or assaulted was the accuseds superior noncommissioned, or petty officer.
(2) Disobeying a warrant, noncommissioned, or
petty officer.
(a) That the accused was a warrant officer or
enlisted member;
(b) That the accused received a certain lawful
order from a certain warrant, noncommissioned, or
petty officer;
(c) That the accused then knew that the person
giving the order was a warrant, noncommissioned,
or petty officer;
(d) That the accused had a duty to obey the
order; and
(e) That the accused willfully disobeyed the
order.
(3) Treating with contempt or being disrespectful
in language or deportment toward a warrant, noncommissioned, or petty officer.
(a) That the accused was a warrant officer or
enlisted member;
(b) That the accused did or omitted certain
acts, or used certain language;
(c) That such behavior or language was used
toward and within sight or hearing of a certain warrant, noncommissioned, or petty officer;
(d) That the accused then knew that the person
toward whom the behavior or language was directed
was a warrant, noncommissioned, or petty officer;
(e) That the victim was then in the execution
of office; and
(f) That under the circumstances the accused,
by such behavior or language, treated with contempt
IV-21

Manual of Courts-Martial, 2008 Edition

15.b.(3)(f)

or was disrespectful to said warrant, noncommissioned, or petty officer.

[Note: If the victim was the superior noncommissioned, or petty officer of the accused, add the
following elements]
(g) That the victim was the superior noncommissioned, or petty officer of the accused; and
(h) That the accused then knew that the person
toward whom the behavior or language was directed
was the accuseds superior noncommissioned, or
petty officer.
c. Explanation.
(1) In general. Article 91 has the same general
objects with respect to warrant, noncommissioned,
and petty officers as Articles 89 and 90 have with
respect to commissioned officers, namely, to ensure
obedience to their lawful orders, and to protect them
from violence, insult, or disrespect. Unlike Articles
89 and 90, however, this article does not require a
superior-subordinate relationship as an element of
any of the offenses denounced. This article does not
protect an acting noncommissioned officer or acting
petty officer, nor does it protect military police or
members of the shore patrol who are not warrant,
noncommissioned, or petty officers.
(2) Knowledge. All of the offenses prohibited by
Article 91 require that the accused have actual
knowledge that the victim was a warrant, noncommissioned, or petty officer. Actual knowledge may
be proved by circumstantial evidence.
(3) Striking or assaulting a warrant, noncommissioned, or petty officer. For a discussion of strikes
and in the execution of office, see paragraph 14c.
For a discussion of assault, see paragraph 54c. An
assault by a prisoner who has been discharged from
the service, or by any other civilian subject to military law, upon a warrant, noncommissioned, or petty
officer should be charged under Article 128 or 134.
(4) Disobeying a warrant, noncommissioned, or
petty officer. See paragraph 14c(2) for a discussion
of lawfulness, personal nature, form, transmission,
and specificity of the order, nature of the disobedience, and time for compliance with the order.
(5) Treating with contempt or being disrespectful
in language or deportment toward a warrant, noncommissioned, or petty officer. Toward requires
that the behavior and language be within the sight or
hearing of the warrant, noncommissioned, or petty
officer concerned. For a discussion of in the execuIV-22

tion of his office, see paragraph 14c. For a discussion of disrespect, see paragraph 13c.
d. Lesser included offenses.
(1) Striking or assaulting warrant, noncommissioned, or petty officer in the execution of office.
(a) Article 128assault; assault consummated
by a battery; assault with a dangerous weapon
(b) Article 128assault upon warrant, noncommissioned, or petty officer not in the execution
of office
(c) Article 80attempts
(2) Disobeying a warrant, noncommissioned, or
petty officer.
(a) Article 92failure to obey a lawful order
(b) Article 80attempts
(3) Treating with contempt or being disrespectful
in language or deportment toward warrant, noncommissioned, or petty officer in the execution of office.
(a) Article 117using provoking or reproachful speech
(b) Article 80attempts
e. Maximum punishment.
(1) Striking or assaulting warrant officer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(2) Striking or assaulting superior noncommissioned or petty officer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement
for 3 years.
(3) Striking or assaulting other noncommissioned
or petty officer. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 1 year.
(4) Willfully disobeying the lawful order of a
warrant officer. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 2
years.
(5) Willfully disobeying the lawful order of a noncommissioned or petty officer. Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(6) Contempt or disrespect to warrant officer.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 9 months.
(7) Contempt or disrespect to superior noncommissioned or petty officer. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement for 6 months.

Manual of Courts-Martial, 2008 Edition

16.c.(1)(b)

(8) Contempt or disrespect to other noncommissioned or petty officer. Forfeiture of two-thirds pay
per month for 3 months, and confinement for 3
months.
f. Sample specifications.
(1) Striking or assaulting warrant, noncommissioned, or petty officer.
In that
(personal jurisdiction data),
did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or
about
20
, (strike) (as, a
officer, then
sault)
to be a (superknown to the said
ior)
officer who was then in the
e x e c u t i o n o f h i s / h e r o f f i c e ,
by
him/her (in) (on)
(the
) with (a)
(his/
her)
.
(2) Willful disobedience of warrant, noncommissioned, or petty officer.
In that
(personal jurisdiction data),
having received a lawful order from
,
a
officer, then known by the saidto be a
officer,
to
, an order which it was his/her duty
to obey, did (at/on board location), on or
about
20
, willfully disobey the
same.
(3) Contempt or disrespect toward warrant, noncommissioned, or petty officer.
In that
(personal jurisdiction data)
(at/on boardlocation), on or
about
20
, [did treat
with contempt] [was disrespectful in (language) (de,
portment) toward]
a
officer, then known by the saidto be a (superior) officer, who was then in the execution
of his/her office, by (saying to him/her,

, or words to that effect) (spitting at his/her feet) (

)
16. Article 92Failure to obey order or
regulation
a. Text of statute.
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 or-

der issued by a member of the armed forces,

which it is his duty to obey, fails to obey the
order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
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.
(3) Dereliction in the performance of duties.
(a) That the accused had certain duties;
(b) That the accused knew or reasonably
should have known of the duties; and
(c) That the accused was (willfully) (through
neglect or culpable inefficiency) derelict in the performance of those duties.
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 Homeland Security,
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) reIV-23

Manual of Courts-Martial, 2008 Edition

16.c.(1)(b)

tains 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).
(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
IV-24

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.
(3) Dereliction in the performance of duties.
(a) Duty. A duty may be imposed by treaty,
statute, regulation, lawful order, standard operating
procedure, or custom of the service.
(b) Knowledge. Actual knowledge of duties
may be proved by circumstantial evidence. Actual
knowledge need not be shown if the individual reasonably should have known of the duties. This may
be demonstrated by regulations, training or operating
manuals, customs of the service, academic literature
or testimony, testimony of persons who have held
similar or superior positions, or similar evidence.
(c) Derelict. A person is derelict in the performance of duties when that person willfully or
negligently fails to perform that persons duties or
when that person performs them in a culpably inefficient manner. Willfully means intentionally. It
refers to the doing of an act knowingly and purposely, specifically intending the natural and probable
consequences of the act. Negligently means an act
or omission of a person who is under a duty to use
due care which exhibits a lack of that degree of care
which a reasonably prudent person would have exercised under the same or similar circumstances. Culpable inefficiency is inefficiency for which there is
no reasonable or just excuse.
(d) Ineptitude. A person is not derelict in the
performance of duties if the failure to perform those
duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency, and may
not be charged under this article, or otherwise punished. For example, a recruit who has tried earnestly
during rifle training and throughout record firing is
not derelict in the performance of duties if the recruit fails to qualify with the weapon.
d. Lesser included offense. Article 80attempts
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

Manual of Courts-Martial, 2008 Edition

17.c.(2)

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.]
(3) Dereliction in the performance of duties.
(A) Through neglect or culpable inefficiency.
Forfeiture of two-thirds pay per month for 3 months
and confinement for 3 months.
(B) Willful. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 6
months.
f. Sample specifications.
(1) Violation or failure to obey lawful general
order or regulation.
(personal jurisdiction data),
In that
did, (at/on boardlocation) (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 Ord e r N o .
, U . S . N a v y ,
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.
) (USS
,
Regulationtion
), dated
)
(
), an order which it was his/her duty to
obey, did, (at/on boardlocation) (subject-matter 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 treat-

ment) (to
) (not to
)
), an order which it was his/her duty to
(
obey, did (at/on boardlocation) (subject-matter jurisdiction data, if required), on or
about
20
, fail to obey the
same (by (wrongfully)
.)
(4) Dereliction in the performance of duties.
, (personal jurisdiction daIn that
ta), who (knew) (should have known) of his/her duties (at/on boardlocation) (subject-matter
jurisdiction data, if required), (on or
about
20
) (from
about
20
to
about
20
), was derelict in the
performance of those duties in that he/she
(negligently) (willfully) (by culpable inefficiency)
failed
, as it was his/her duty to do.
17. Article 93Cruelty and maltreatment
a. Text of statute.
Any person subject to this chapter who is
guilty of cruelty toward, or oppression or
maltreatment of, any person subject to his orders
shall be punished as a court-martial may direct.
b. Elements.
(1) That a certain person was subject to the orders of the accused; and
(2) That the accused was cruel toward, or oppressed, or maltreated that person.
c. Explanation.
(1) Nature of victim. Any person subject to his
orders means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who
by reason of some duty are required to obey the
lawful orders of the accused, regardless whether the
accused is in the direct chain of command over the
person.
(2) Nature of act. The cruelty, oppression, or
maltreatment, although not necessarily physical,
must be measured by an objective standard. Assault,
improper punishment, and sexual harassment may
constitute this offense. Sexual harassment includes
influencing, offering to influence, or threatening the
career, pay, or job of another person in exchange for
sexual favors, and deliberate or repeated offensive
comments or gestures of a sexual nature. The imposition of necessary or proper duties and the exaction
of their performance does not constitute this offense
IV-25