They didn’t choose to avoid Article 90 because they’d have difficulty proving his willful intent; he’s warned them all along of his intent.
They chose to avoid Article 90 because they didn’t want to have to address all 4 items that determine lawfulness of the order - specifically item b, the one which says the issuing officer has to be authorized by law, regulation, or custom of the military to give that specific order.
They know that law (SJ Res 23), regulations, and customs ALL say that a brigade commander cannot deploy combat forces without the authorization of a valid CINC.
The trouble with their plan is that Article 92(2) can’t be used in a case where violations are chargeable under Article 90 - according to the actual Scope of Article 92(2), which I’ve posted from page 300 of http://usmilitary.about.com/library/pdf/mcm2000.pdf .
What’s interesting is that Lind referred to only ONE of the 4 criteria for lawfulness under Article 90. She knows that all 4 of those criteria have to be met in order for the order to be lawful.
She also knows that Article 90 is the real charge that should be made against Lakin - that Article 92(2) is not allowable for these charges against Lakin.