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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 32806
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am being charged with article 92 for waking up my driver

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I am being charged with article 92 for waking up my driver in the field and interrupting his 6 hours of uninterrupted sleep. We also got a safety brief on multiple subjects one being that of drivers needing 6 hours of uninterrupted sleep (the class was given by a ssgt). My command says that I disobeyed a lawful order given by the company commander even though no where in the mco or division order does it states how much hour of sleep a driver requires. Should I accept njp or should I fight it?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Not sure I understand...why did you wake the driver?

And was there an order to not wake the driver?
Customer: replied 3 years ago.
I woke the driver up so that he would've been staged next to the other ammunition truck on the other side of the pos, so that when he woke up in the morning we were ready to go on the road. I don't remember what time I woke him up but out of the 5 statements written, one says 2300 and another says 0100. The order isn't in the marine corp order or a division order, the motor t chief(ssgt), gave a class/brief on multiple subjects relating to safe driving, one being that of driver's getting 6 hours of uninterrupted sleep but also at the time I went to my truck I just got done with a task assigned to me and the howitzer next to my truck was making quite a bit of noise that time so wouldn't that count as interrupting driver's 6 hours sleep. They're saying it was an order given by the company commanding officer even he wasn't the one to give the class.
Thank you

What you describe is not a crime. That is, if you had a legitimate reason for waking up the driver that was related to your duties? That is not a crime. sounds like they are setting you up for a "dereliction of duty" charge. If they can prove you took this action (waking up the driver) for no good reason? That could be a violation of "dereliction of duty" under Art 92, UCMJ.

But to prove this crime, they have to prove that you knew that you had a particular duty and you choose not to abide by that duty.

Again, what you describe, the way you describe it, you had a legitimate basis for waking the driver. That is not a crime and you can refuse and take this to court (if they even bothered to try and bring it to court)

Customer: replied 3 years ago.
Thanks for input, its been really useful!, the problem is that there pushing for summary court martial with out a lawyer(I have refused njp) is there anyway when this situation presents itself, that I can request special court martial? I've tried explaining my situation with the sgt major aswell but he's telling me that even though I had good intention I still messed up by waking up the driver(also for waking him up, he slept in til 0730 instead of waking up at 0530).
You can refuse summary. Just like NJP, you can refuse it. I would...based on what you describe. You can refuse summary (again, you have the absolute right) and make them put this to a real court with a real judge and all the protections of the rules of evidence.

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