## Facts

- Jeremy H. Green, a West Point cadet and cadet company first sergeant, was found possessing items associated with illegal drug use, including a device used to snort ketamine.
- He faced charges that included possessing drugs, possessing drug-abuse paraphernalia, and dereliction of duty.
- One specification alleged disobedience of a “lawful general order” under Article 92, UCMJ, based on Department of Defense Directive (DoDD) 1010.4, which stated a policy prohibiting possession, sale, and use of drug-abuse paraphernalia.
- DoDD 1010.4 addressed alcohol and drug-abuse policy and implementation responsibilities but did not specify criminal sanctions for violations.
- At a general court-martial, Green pleaded guilty to violating a lawful general order by possessing drug-abuse paraphernalia and to other offenses; the military judge accepted the plea and imposed a sentence that included dismissal.
- The case was reviewed by the United States Army Court of Criminal Appeals under Article 66, UCMJ.

## Issues

1. Whether DoDD 1010.4 constituted a punitive “lawful general order” enforceable under Article 92, UCMJ.
2. Whether Green’s guilty plea to violating a lawful general order was provident in light of the directive’s character and the plea inquiry record.
3. If the lawful-general-order specification failed, whether the record supported affirmance of dereliction of duty as a lesser-included offense and what effect, if any, the change had on the approved sentence.

## Decision

- The Army Court of Criminal Appeals held that DoDD 1010.4 was nonpunitive and could not support a conviction for violating a lawful general order under Article 92.
- The court set aside the finding based on Green’s guilty plea to the lawful-general-order specification as improvident, citing the directive’s nonpunitive nature and an error reflected in the description of pretrial conditions during the plea inquiry.
- The court affirmed dereliction of duty as a lesser-included offense arising from the same misconduct.
- The court affirmed the remaining drug-related findings and approved the sentence, including dismissal.

## Legal Principles

- A regulation or directive supports an Article 92 “lawful general order” offense only if it clearly regulates individual conduct and contains unequivocal punitive language indicating violations are punishable under the UCMJ.
- Policy directives that assign responsibilities and announce prohibitions without clear punitive language are nonpunitive and are not, by themselves, enforceable as “lawful general orders” under Article 92(1).
- A guilty plea must be provident; if the accused’s plea rests on a legally incorrect premise about an essential element (such as the punitive status of the purported order) or a materially flawed plea inquiry, the plea and resulting finding must be set aside.
- When an Article 92(1) general-order offense fails, an appellate court may affirm a lesser-included offense, such as dereliction of duty, if the record establishes the elements based on the accused’s conduct and duties.

## Conclusion

The court ruled that DoDD 1010.4 was a nonpunitive policy directive and therefore could not sustain an Article 92 conviction for violating a lawful general order, rendering Green’s guilty plea to that specification improvident; it nonetheless affirmed dereliction of duty as a lesser-included offense and approved the dismissal based on the remaining valid findings.


United States v. Green, 58 M.J. 855 (A. Ct. Crim. App. 2003)