Where is the term "lawful order" defined? Or, what are your opinions on when it should be used?

SFC(P) Private RallyPoint Member — Sat, 02 Jun 2018 10:47:51 -0400

Response by SFC Steven Borders made Jun 2 at 2018 11:04 AM

SFC Steven Borders — Sat, 02 Jun 2018 11:04:28 -0400

This is what I could find on Article 92
There are several variations of the charge of Article 92, violation of the UCMJ. These changes require slightly different elements of each charge to prove and are discussed as follows:

a) Violating general order or regulation

Elements:

That a lawful general of order or regulation existed.
That the accused was duty bound to obey this regulation or order.
That the accused disobeyed or violated this order/ regulation by an act, behavior or alleged intent.
Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment.

b) Violating other written regulation or order

Elements:

That a lawful regulation or order existed
That the accused was fully aware of this order/ regulation
That the accused was bound by duty to obey the regulation/ order
That the accused disobeyed this order/ regulation
Maximum Punishment: The accused faces bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment.

c) Failure to obey lawful order

Elements

That a specific lawful order was issued by a member of the United States armed forces.
That the accused was fully aware of the order.
That the accused was duty bound to obey the order.
That he failed to do so.
Maximum Punishment: The accused could get a bad conduct discharge, forfeiture of all allowances and pay and up to 6 months confinement if found guilty of this offense.

d) Dereliction of duty

Elements

That certain duties were assigned to the accused.
In case of willful dereliction, the prosecution must prove that the accused had knowledge of the duties assigned to him.
In case of negligence/ inefficiency leading to dereliction of duty, the prosecution must prove that there are reasonable grounds to show the accused should have known about his assigned duties and that he failed to carry them out.
Maximum Punishment: For deliberate dereliction of duty, the accused shall receive bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment. For dereliction of duty through inefficiency or neglect, the maximum punishment is 2/3rd of a month's pay for 3 months and three months confinement.

To learn more about this punitive article refer to the Manual for Courts Martial.

Points to Note about Article 92

Willful dereliction of duty attracts a more serious punishment than negligence leading to dereliction.
Circumstantial evidence can be used to show that the accused had knowledge of his duty and, in cases of willful dereliction, circumstantial evidence can be used to show the accused intended to avoid duty.
The serviceman is not guilty of violating this article if the duty is self- imposed.
The lawfulness of the order is an important aspect to consider in these cases.
When the order carries exceptions, the prosecution has to prove that the accused is not subject to the terms of the exception.

Response by CSM Darieus ZaGara made Jun 2 at 2018 12:46 PM

CSM Darieus ZaGara — Sat, 02 Jun 2018 12:46:14 -0400

It is in the Manuals of Courts Martial. It gives NCOs their authority. It needs to be stated when a Sokdier fails to comply. Thank you for your service.

Response by PO3 Phyllis Maynard made Jun 2 at 2018 4:54 PM

PO3 Phyllis Maynard — Sat, 02 Jun 2018 16:54:10 -0400

Lawful order is any order of court which is not erroneous; any order which may not be reversed on appeal for error. Contempt is defined to be the disobedience or resistance of a lawful order of a court or judge and every erroneous order or judgment of a Court is unlawful. [In re Cohen, 5 Cal. 494, 495 (Cal. 1855)].

I googled the definition if this helps. It seems to be talking about the correctness or proper application of a judge's ruling. SFC(P) Private RallyPoint Member I hope this applies to the UCMJ.

Response by CWO3 Private RallyPoint Member made Jun 2 at 2018 5:44 PM

CWO3 Private RallyPoint Member — Sat, 02 Jun 2018 17:44:21 -0400

It's probably in doctrine (Joint Pub, ( JP 1) or UCMJ Art. 92), but an Enlisted Marine's promotion warrant outlines it well - "I do strictly require that all personnel of lesser grade render obedience to orders as may be given from time to time acting in accordance with the UCMJ...." or paraphrase. Warrants may have changed but they used to read like this. I think an unlawful order may be harder to define for a young AD serviceman. The method of delivery depends on the leader. It ranges from "I need you to...", or "I need your help with, and you're in charge...", all the way to "I'm giving you a direct and lawful order to...".

Response by Lt Col Jim Coe made Jun 2 at 2018 6:39 PM

Lt Col Jim Coe — Sat, 02 Jun 2018 18:39:07 -0400

My opinion.

An order is lawful:
if issued by competent authority, meaning the person issuing the order occupied a position of authority over the person receiving the order and that person was authorized to issue an order and the person issuing the order was neither under duress nor mentally incompetent at the time the order was issued;
if the order requires action that is legal, that is not against US law, UCMJ, rules of engagement, or orders issued by higher authority;
if the order is clearly communicated to a subordinate and received by the subordinate.

Just because an order is lawful, does not mean the required action is a good idea. Good subordinates, recognizing an order that might lead to unnecessary hazardous behavior, loss of equipment or resources, or loss of life, are obligated to question the order. However, if the order is subsequently confirmed, the subordinates are required to carry out the order or suffer the consequences of not doing so. See SFC Steven Borders discussion of Article 92, UCMJ. However, in combat or in extremis situations, time to question an order may not be available and doing so may result in loss of life, equipment, or resources, so immediate action is required.

Response by LTC John Wilson made Jun 2 at 2018 8:53 PM

LTC John Wilson — Sat, 02 Jun 2018 20:53:21 -0400

A "Lawful" order is any order that is not UNLAWFUL. An UNLAWFUL order is any order that violates the US Constitution, Constitutional Federal Law, International Law, and/or transcendent Natural Law (as recognized in our Foundational Charters).

That last distinction is important. During the Nuremberg trials, German defendants stated that nothing they did violated German law. But the American prosecutor, Justice Robert H. Jackson, pointed out that German laws did not absolve them of their obligations to the higher, Natural law.

Response by CAPT Kevin B. made Jun 2 at 2018 8:53 PM

CAPT Kevin B. — Sat, 02 Jun 2018 20:53:46 -0400

Everyone gets wrapped around the axle. Simplest for me was every order is lawful, except if it's illegal, i.e. violates the law. Avoided a lot of trouble that way. Just wish there was less of the Delta Alpha stuff we had to do vs. learning something that would keep us alive.

Response by LTC Jason Mackay made Jun 2 at 2018 9:31 PM

LTC Jason Mackay — Sat, 02 Jun 2018 21:31:48 -0400

Article 92 in the MCM defines Lawfulness: (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).

....when it should be used...not so sure what you are asking.

Response by SCPO Private RallyPoint Member made Jun 2 at 2018 9:56 PM

SCPO Private RallyPoint Member — Sat, 02 Jun 2018 21:56:49 -0400

It all depends upon the context in which it is used.

Response by Barry Davidson made Jun 3 at 2018 7:20 AM

Barry Davidson — Sun, 03 Jun 2018 07:20:44 -0400

How can it be defined without first clearly defining "illegal order"? A so-called conscientious objector can still have their ass booted in one command, while practically being hailed as a hero in another.

Civilians, for the most part, think of the military in civilian terms - they can't understand, or as most likely the case, won't. I see it all the time on social media, and even in the regular media. To them Bradley Manning was a hero.

"They shouldn't follow those orders if they know they're wrong," is something I've seen. I've seen it thousands of times since the millennium started. They think you get to pick and choose if you want to take that hill. They think you can choose not to shoot back when when other members of your unit are under fire. Trying to explain, even in language they can understand, is like getting Nancy Pelosi to shut up.

Defining illegal orders can be equally nebulous.

Response by 1LT Otis R. made Jun 3 at 2018 7:25 AM

1LT Otis R. — Sun, 03 Jun 2018 07:25:29 -0400

I sense there is a deeper question here. IMO the intent to obey all lawful orders is to maintain order and discipline, ensure combat effectiveness and adherence to the laws of war. Particularly in combat there is a need for lawful orders to be clear. Also, we expect American soldiers to discern unlawful orders from lawful ones i.e. being ordered to act in violation of a clear law.

Response by SGT Robert Wager made Jun 4 at 2018 8:29 AM

SGT Robert Wager — Mon, 04 Jun 2018 08:29:32 -0400

Any order given by an NCO or Officer is inferred as a lawful order. The old PLDC definition of a good, lawful order is the squad leader telling his soldier to "Go now, to the motor pool"

Too often leaders today seem to believe that they have to "announce" an order as "this is a lwaful order..." This, in my opinion, dilutes any other order that is given. If you are wearing stripes or shiny objects on your collar, then your orders must be assumed to be lawful by your subordinates without having to announce them as such. If a soldier disobeys them then, in your counseling of them on paper, you can then reference that they failed to follow a lawful order. I don't think you should ever verbalize that you are giving a soldier a lawful order.

Others have commented on what is a lawful order by definition in the MCM so I won't add to that, but your soldiers must assume that all of your orders are lawful unless they violate the UCMJ or constitutional law.