Q. Can a service member be punished for improperly performing certain duties because of poor training?
A. Training can take only so much credit or blame for good or bad outcomes in the military. An important component of training is making sure service members know what they are supposed to do, how do to it and when. It only follows that when the training is faulty, performance of the trained duty will likewise be faulty, and military law takes this causality into consideration.
When service members fail to effectively perform their duties, they may be charged with dereliction of duty in violation of Article 92 of the Uniform Code of Military Justice. To commit this offense, a service member must willfully or negligently fail to perform or ineffectually perform his or her duty that has been established through treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service. The service member must also have knowledge of this duty, according to the Manual for Courts-Martial.
The case, U.S. v. Robert E. Taylor (2005), illustrates the impacts of incomplete training and how even the government can be confused over a service member’s duties. Taylor involved a Coast Guard yeoman who pleaded guilty to, among other things, dereliction of duty by willfully failing to use his government travel card for only official government business travel. When applying for this card, the yeoman had been told by an instructing petty officer that it should be used only for official purposes and he would be disciplined if he used it without orders. The yeoman never read or was given a chance to read Command Instruction 4600.14A, which governs the travel card program. Consequently, he believed he could use the card when under temporary additional duty or permanent change of station.
The yeoman used his card while executing PCS orders that sent him to Port Angeles in Washington state, but along the way he went out of his way to visit friends in Canada. After reporting to his unit in Washington, he continued to use the card despite not being under travel orders. He was later placed in TAD status, during which time he used the card. During these three periods, the yeoman used the card for normal travel expenses, such as car rental, gasoline, meals, and lodging. However, the government said the yeoman misused the card because he did not take a direct route while executing his PCS and because he incurred charges while on no-cost TAD.
The U.S. Coast Guard Court of Criminal Appeals found that the yeoman was not derelict in his duties when he used the card while executing PCS and TAD orders, but he did violate Article 92 by using the card after reporting to his unit and while not on travel orders. The court noted that, according to the yeoman’s uncontested testimony, his command provided “incomplete and misleading” travel card duty training. He “was entitled to rely on his command for an accurate description of his travel card duties. His duty, therefore, was to restrict all travel card use to travel-related expenses during periods under TAD or PCS orders. He cannot be held to the higher standard unless there is evidence he knew or should have known of the applicable regulation,” the court said. Further, the court noted COMDTINST 1400.14A did not prohibit card usage while on no-cost TAD orders or mandate the most direct PCS travel.
Service members charged with dereliction of duty should immediately contact a military law attorney. Depending on the circumstances, an attorney can show a service member was never informed of his duty or it was not his or her duty to perform.
Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. Email questions to askthelawyer@fedattorney.com. The information in this column is not intended as legal advice.