Military regulations are usually thought of as a source of duties, the rules a service member must follow. But for a defense attorney, those same regulations are a toolbox. The rules that create obligations also create defenses, and knowing how to turn a regulation into an argument is a core skill in defending a charge of failing to obey one.
The charge, and its built-in weak points
Many regulation-based cases are charged under Article 92, failure to obey a lawful order or regulation. The article’s own requirements are where the defense lives, because each element the government must prove is a point the defense can contest.
Two defenses flow directly from the article’s text:
- Lack of knowledge. For the relevant offenses, a conviction requires that the accused had actual knowledge of the order or regulation. A member who genuinely did not know of it, or did not understand it, can raise that as a defense.
- Unlawful or unreasonable order or regulation. Only a lawful order or regulation must be obeyed. The defense can argue that the order or regulation was unlawful or unreasonable, and therefore not enforceable.
What makes an order or regulation “lawful”
That second defense turns on a standard worth knowing. An order or regulation is lawful when it is issued by a person with the authority to issue it, is reasonable, and is not contrary to law or a higher regulation. Each prong is a potential attack: Did the issuer have authority? Was the rule reasonable? Does it conflict with a higher source of law? A “no” to any of these can defeat the charge.
Regulations as a shield against the government
There is a second way regulations serve the defense: by holding the government to its own rules. Procedures for investigations, nonjudicial punishment, and administrative actions are often set out in regulation, and when the government fails to follow its own required procedures, that failure can be raised. The defense reads the applicable regulation not only for what the accused had to do, but for what the command had to do, and whether it did.
Imagine a member charged with violating an order they were never actually told about: the attorney uses the regulation’s own terms and the knowledge requirement to argue the government cannot prove an element.
The essential takeaway is that a defense attorney treats regulations as two-directional. They define the duty the accused allegedly breached, and they supply the elements, the lawfulness standard, the knowledge requirement, and the procedural obligations, that a defense can use to contest the charge. Mining the regulation carefully is often where a viable defense is found.
Frequently Asked Questions
Can I be convicted of violating a regulation I did not know about?
For the relevant offenses, conviction requires actual knowledge of the order or regulation, so a genuine lack of knowledge can be a defense.
Can an order or regulation be challenged as unlawful?
Yes. A defense can argue the order or regulation was unlawful or unreasonable, because only a lawful one must be obeyed.
What makes an order or regulation lawful?
It must be issued by someone with the authority to issue it, be reasonable, and not be contrary to law or a higher regulation.
This article is general information about defenses to regulation-based charges. It is not legal advice and does not create an attorney-client relationship. Charges and defenses depend on the specific facts and can change. A service member facing such a charge should consult defense counsel.
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