Military Lawyers

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice is meant to be a swift, low level tool for addressing minor misconduct without the machinery of a court-martial. But because it is quick and informal, the procedures that protect the service member are easy to shortcut. When those procedures break down and the flawed Article 15 then feeds an administrative separation, the consequences can follow a person for years. Several avenues of recourse exist, and they work best when pursued in the right order and as early as possible.

The Procedural Rights That Can Be Violated

Although nonjudicial punishment is not a criminal trial, it carries defined safeguards. A service member is generally entitled to be notified of the alleged offense, to review the evidence the commander intends to rely on, to have a reasonable time to prepare, to present matters in defense, extenuation, and mitigation, to request witnesses who are reasonably available, and to appeal the punishment. In most situations away from a vessel, the member also has the right to refuse the Article 15 and demand trial by court-martial instead.

When one of these steps is skipped, the proceeding may be defective. Common problems include denying the member a meaningful chance to respond, failing to advise of the right to demand court-martial, refusing reasonable witness requests, or imposing the punishment based on evidence the member was never allowed to see. A defect in delivery becomes especially serious when the resulting Article 15 is later cited as the basis for separating the member from service.

The First Avenue: Appeal the Punishment

The most immediate remedy is the appeal built into Article 15 itself. A service member who believes the punishment is unjust or disproportionate may appeal to the next superior authority, typically within a short window of a few days after the punishment is imposed. An appeal asserting that the proceeding was unjust can squarely raise procedural defects, not just the severity of the sanction. For more significant punishments, the reviewing authority must obtain a legal review by a judge advocate before acting, which provides an independent check on whether the proceeding was conducted properly.

Setting Aside the Punishment

Separate from appeal, Article 15 authorizes the imposing commander or a successor in command to set aside the punishment in whole or in part, restoring rights, privileges, and property affected by it. A set aside is the …

In military cases that involve movement, of a person, a vehicle, or government property, the route or endpoint a service member actually took can become a focal point. A member authorized to drive a government vehicle to one location instead takes it somewhere else; a member who was required to move with a unit ends up at a different place; a member entrusted with property to deliver it to a designated point diverts it. In each scenario, prosecutors and defense counsel ask whether the change in destination matters. The answer is that a change in destination is rarely an offense in itself, but it is frequently relevant circumstantial evidence of the mental state that determines criminal responsibility. What the change proves depends entirely on the offense charged and the intent that offense requires.

Most military offenses turn on a mental state, not a location

Criminal responsibility in the military, as elsewhere, usually requires more than a physical act. Many offenses demand a specific intent or a culpable state of mind, and that mental element is where a change in destination earns its relevance. A destination by itself is a neutral fact. It becomes meaningful when it supports an inference about what the member intended or knew. So the proper question is never simply whether the member went somewhere different, but whether the deviation tends to prove the particular intent the charge requires.

Wrongful appropriation and larceny: deviation as evidence of intent

Consider property offenses under Article 121. Larceny requires an intent to permanently deprive the owner of property, while wrongful appropriation requires only an intent to temporarily deprive the owner of its use and benefit or to appropriate it to the use of someone other than the owner. The line between the two is the intended duration of the deprivation. A change in destination can be strong circumstantial evidence on exactly that point.

Suppose a member is authorized to use a government vehicle for an official trip to one location and instead drives it elsewhere for a personal purpose. The deviation from the authorized destination tends to show that the use exceeded the authorization, which is the unauthorized-use feature of wrongful appropriation. How far the member went, how long the vehicle was kept, and whether the member was heading back or heading away can all bear on whether the intent was merely to borrow temporarily, which is wrongful appropriation, or …

Defense counsel in a court-martial often need to bring witnesses to the trial, and producing those witnesses frequently requires government-funded travel. When the government refuses to fund a defense witness’s travel, the defense may be deprived of testimony it considers essential. The question of whether such a denial can amount to reversible error turns on the rules governing witness production, the standard of review applied on appeal, and the role of harmless error analysis.

The Right to Produce Witnesses

Rule for Courts-Martial 703 governs the production of witnesses in courts-martial. Under RCM 703, a party is entitled to the production of any witness whose testimony on a matter in issue on the merits would be relevant and necessary. This entitlement extends to the defense, and it carries with it the corresponding obligation of the government to make relevant and necessary witnesses available, which often means funding travel.

The right is not unlimited. A defense request must do more than gesture at the possibility of useful testimony. The defense is required to set forth a synopsis of the expected testimony sufficient to show its relevance and necessity. A request that rests on a suppositional “could have” or “might be” justification will not satisfy the standard. The defense must explain what the witness will say and why that testimony is both relevant to an issue at trial and necessary, meaning not merely cumulative of other available evidence.

When a Funding Denial Becomes Improper

A denial of travel funding is improper when it withholds a witness who meets the relevance and necessity standard of RCM 703. If the defense has made an adequate showing and the witness’s testimony is relevant and necessary, refusing to fund the witness’s appearance can deprive the accused of evidence to which the accused is entitled. The improper denial is not the mere refusal to pay travel costs in the abstract. It is the resulting failure to produce a witness whom the rules required the government to make available.

It is worth distinguishing this from a separate concern. The denial of a request to travel at government expense does not by itself constitute unlawful command influence. The proper framework for analyzing a funding denial is the witness production rule, not a presumption that any refusal reflects improper interference with the proceedings.

The Standard of Review on Appeal

A military judge’s ruling on a request for a witness is reviewed …

When a court-martial involves something a service member posted, shared, or had removed online, the records held by the social media company can become important evidence. Those records may include the account content itself, metadata about when and where a post was made, and increasingly the platform’s own moderation records showing why a post was flagged, restricted, or taken down. Whether a military court can reach that material through a subpoena depends on what kind of record is sought and on a body of federal law that treats stored electronic communications differently from ordinary documents.

The Tools Available in a Court-Martial

Production of evidence in courts-martial is governed primarily by Rule for Courts-Martial 703, which gives both the prosecution and the defense the means to obtain evidence and witnesses that are relevant and necessary. Rule for Courts-Martial 703 includes the authority to issue subpoenas for the production of documents and other evidence from people and entities outside the military. A separate provision, Rule for Courts-Martial 703A, addresses electronic communications and the special process required to obtain certain stored electronic data. The existence of two distinct rules signals an important point: not all social media records can be obtained the same way.

Why the Stored Communications Act Matters

The central obstacle is the Stored Communications Act, a federal statute that governs how the government may compel providers of electronic communication services to disclose customer information. The Act distinguishes between basic subscriber information, certain transactional records, and the actual content of communications, and it imposes progressively stronger process requirements as the data becomes more sensitive. For the content of stored communications held by a provider, a simple subpoena is generally not enough. The provider is barred from voluntarily disclosing content except in defined circumstances, and the government must use a court order or a warrant rather than a subpoena to compel it.

How This Shapes Military Practice

In the military system, this means that a trial counsel cannot rely on an ordinary subpoena to force a social media company to turn over the substantive content of communications protected by the Stored Communications Act. Instead, the appropriate route is a court order or warrant issued through the process associated with Rule for Courts-Martial 703A, which was developed precisely so that military prosecutors can obtain the same stored electronic evidence a federal prosecutor could obtain, but through the order or warrant the statute requires …

Article 91 of the Uniform Code of Military Justice, codified at 10 U.S.C. 891, makes it an offense for an enlisted member or a warrant officer to treat with contempt or to be disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that person is in the execution of office. The phrase “disrespectful language” sounds self-explanatory, but courts-martial do not read it as covering every rude or impolite remark. They interpret it through specific elements and definitions, applying an objective, context-sensitive standard that asks whether the words actually detracted from the respect owed to a protected superior who was performing official duties. Understanding that interpretation is essential because the same words can be punishable in one setting and unremarkable in another.

The statutory frame and the protected relationship

Article 91 protects warrant officers, noncommissioned officers, and petty officers, not commissioned officers; disrespect toward a superior commissioned officer falls under Article 89. The article reaches insubordinate conduct in several forms, including striking or assaulting such a person, willfully disobeying that person’s lawful order, and treating that person with contempt or being disrespectful in language or deportment. The disrespectful-language theory is the verbal branch of that last category.

Two threshold facts limit the reach of the article. First, the words must be directed toward a person the accused knew to be a warrant officer, noncommissioned officer, or petty officer. Knowledge of the victim’s status is an element; a member who genuinely did not know the listener’s position cannot be convicted of disrespect toward that protected status. Second, the protected person must have been in the execution of office at the time. The article guards the performance of military duties, so language uttered when the superior was not acting in an official capacity may fall outside it, although context can blur that boundary.

What “disrespectful” means as courts apply it

Courts-martial interpret disrespectful language using a settled definition: disrespectful behavior is behavior that detracts from the respect due the authority and person of the superior, and it may consist of language, however expressed. Contempt, the companion concept, is defined as insulting, rude, and disdainful conduct, or conduct that otherwise disrespectfully attributes to another qualities of meanness, disreputableness, or worthlessness.

Several interpretive principles follow. The assessment is objective. The question is not whether the particular noncommissioned or petty officer felt insulted, but whether the language, under the circumstances, …

Defense contractors who hold or seek a security clearance often confront a difficult question after they discover a problem with foreign financial accounts. Perhaps a foreign bank account was never reported on a Report of Foreign Bank and Financial Accounts, commonly called the FBAR, or was omitted from a security questionnaire. The instinct to correct the record is sound, but contractors worry that disclosure will itself trigger a denial or revocation. The short answer is that voluntary, well documented disclosure usually helps rather than hurts, although it does not guarantee a favorable outcome.

Two Separate Systems Are in Play

It helps to separate the issues. The FBAR is a Treasury reporting requirement administered through the Financial Crimes Enforcement Network. A failure to file an FBAR is a tax and financial reporting matter with its own correction procedures and potential penalties. The security clearance question is governed by a different framework entirely: the National Security Adjudicative Guidelines that federal agencies apply to determine eligibility for access to classified information.

A foreign account error can implicate two of those guidelines. Guideline F addresses financial considerations, including a history of not meeting financial obligations and certain financial reporting failures. Guideline B addresses foreign influence, which can arise when a person maintains financial interests abroad. An omission on a security questionnaire can also raise Guideline E, personal conduct, which covers questionable judgment, lack of candor, and the deliberate failure to provide accurate information.

Why Concealment Is the Real Danger

Adjudicators repeatedly emphasize that candor is central to clearance eligibility. Access to classified information turns on whether the government can trust an individual to be reliable, honest, and forthcoming. That is why a deliberate omission frequently does more damage than the underlying financial issue. A late or unreported foreign account, standing alone, is often a manageable Guideline F or Guideline B concern. The same account, concealed and later discovered during investigation, can escalate into a Guideline E personal conduct concern that is far harder to overcome.

This dynamic is precisely why voluntary disclosure matters. A correction made on one’s own initiative, before any inquiry or confrontation, tends to strengthen credibility. A correction offered only after an investigator surfaces the issue tends to weaken it. The timing and the spirit of the disclosure are themselves evidence the government weighs.

How Mitigation Works Under the Guidelines

The adjudicative guidelines do not treat disqualifying conditions as automatic disqualifiers. …

Obstruction charges often arise after the fact. A service member who is the subject of an investigation, or who is connected to one, may be accused of trying to interfere with it by talking to a witness, deleting a message, or shaping how events are described. In the military justice system, this conduct is prosecuted under Article 131b of the Uniform Code of Military Justice, obstructing justice. Because the offense hinges on specific intent and on the existence of proceedings, the available defenses focus tightly on those elements.

What the government must prove

Article 131b punishes a person subject to the UCMJ who engages in conduct in the case of a certain person against whom the accused had reason to believe there were or would be criminal or disciplinary proceedings pending, and who does so with the intent to influence, impede, or otherwise obstruct the due administration of justice. Criminal and disciplinary proceedings for this purpose include courts-martial and nonjudicial punishment, and the conduct can occur before, during, or after a formal investigation.

Two features of the offense are critical to the defense. First, the accused must have acted with the specific intent to obstruct justice. Second, actual obstruction is not required. The government does not have to prove that the investigation was in fact derailed, only that the accused acted with the prohibited intent in connection with a person facing proceedings. Because intent and the existence of contemplated proceedings carry the offense, the defense usually attacks one or both.

The intent defense

The most important defense is the absence of the specific intent to obstruct justice. Many actions that look suspicious to an investigator are entirely innocent. A service member who tells a friend “they are asking questions, just be honest” is not obstructing justice. A member who deletes ordinary messages in the routine course of cleaning out a phone, without any purpose of impeding an inquiry, lacks the required intent. A member who declines to cooperate, or who exercises the right to remain silent, is not obstructing justice, because invoking one’s own rights is not an attempt to corrupt the administration of justice.

The defense develops this theme by offering an innocent explanation for the conduct and by showing the absence of any purpose to influence the proceeding. The line between protecting oneself and obstructing justice matters here. A member is entitled to defend against an investigation, to …

Once charges are referred to a court-martial, the charge sheet is no longer a working draft. It is the formal accusatory document that frames the trial. Yet errors and imperfections surface all the time after referral: a misspelled name, a wrong date that everyone understood, an obvious typographical slip, or an awkwardly worded specification. The practical question is whether the government can clean these up without starting the preferral and referral process over again. The answer is yes for genuinely administrative or minor corrections, but no for changes that are substantive, because the governing rule draws a hard line between minor changes, which are permitted post-referral, and major changes, which are not allowed over the accused’s objection unless the affected charge is preferred anew.

The controlling rule: RCM 603

The framework comes from Rule for Courts-Martial (RCM) 603, which addresses changes to charges and specifications. RCM 603 sorts every proposed change into one of two categories, and the category determines what process is required.

A minor change is any change that does not add a party, does not add an offense, does not allege a more serious or essentially different offense, and does not otherwise allege matter that was not fairly included in the charges as preferred. Put differently, a change is minor when it does not charge an additional or different offense and does not prejudice the substantial rights of the accused. Corrections to spelling, formatting, obvious clerical errors, and dates or places that do not change the identity or substance of the offense typically fall here.

A major change is everything else: a change that adds a party or an offense, that alleges a more serious or essentially different offense, or that otherwise introduces matter not fairly embraced by the original charges, or that is likely to mislead the accused about what he must defend against.

Minor changes after referral

Minor changes may be made after referral. RCM 603 allows them to be made before, during, or after trial, and they may be made over the objection of the accused, precisely because by definition they neither add nor alter the offense and do not prejudice the accused’s substantial rights. This is the category that answers the question for ordinary administrative corrections. A clerical fix to the charge sheet, such as correcting a transposed digit in a service number or a misspelled location, can be accomplished without re-preferring and …

Command climate assessments, including instruments like the Defense Organizational Climate Survey, are designed as management tools. They give commanders aggregated information about morale, perceptions of fairness, and risk factors within a unit so that leadership can act on problems. They were never designed to function as courtroom evidence. When a party tries to introduce such an assessment at a court-martial, the defense has several well established evidentiary grounds to challenge it, and the process for raising those challenges follows the ordinary structure of a motion practice under the Military Rules of Evidence and the Rules for Courts-Martial.

Understanding What the Assessment Is

A command climate assessment typically consists of survey responses gathered from members of a unit, often anonymously, and then aggregated into reports about unit perceptions and trends. The data is statistical and impressionistic rather than a record of specific events. That character is the starting point for any admissibility challenge, because most of the objections flow from the gap between what the survey measures and what a court-martial must decide.

Raising the Challenge Procedurally

The mechanism for contesting such evidence is a motion. Under the Rules for Courts-Martial, a party may move to suppress or to exclude evidence, and objections to admissibility are ordinarily litigated before the members hear the evidence. The defense files a motion in limine asking the military judge to exclude the assessment, supported by the specific evidentiary rules at issue. The military judge resolves the question outside the presence of the members, often after an Article 39(a) session, and may hold a hearing where the proponent must lay the foundation for the evidence. The burden of establishing admissibility rests with the party offering the evidence, and the judge serves as the gatekeeper.

Relevance Under Military Rule of Evidence 401 and 402

The first line of attack is relevance. Military Rule of Evidence 401 defines relevant evidence as evidence that has any tendency to make a fact of consequence more or less probable, and Rule 402 excludes evidence that is not relevant. A unit wide climate assessment usually says little about whether a specific accused committed a specific offense on a specific occasion. General perceptions of command climate are several steps removed from the elements the government must prove or any defense actually raised. If the assessment cannot be tied to a fact genuinely in dispute, it is inadmissible at the threshold.

Unfair Prejudice Under

…

Absence without leave is one of the most common offenses in the military justice system, and it is charged under Article 86 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 886. A frequent real-world scenario is the service member who fully intended to come back on time but was prevented by a genuine medical crisis, either his own illness or a family emergency. Whether that circumstance excuses the absence depends on a distinction that often surprises people: the difference between an excuse that defeats the charge entirely and a circumstance that merely reduces the punishment. Illness can do either, but only the right kind of illness, in the right posture, eliminates guilt.

What Article 86 actually requires

Article 86 covers several forms of unauthorized absence, including failing to go to an appointed place of duty, leaving that place, and absenting oneself from a unit, organization, or place of duty. The most serious common variant is absence terminated by apprehension or a prolonged absence. The core elements are that the accused was absent from a place where he was required to be, that the absence was without authority, and, depending on the specification, that it began or ended at a certain time.

What Article 86 generally does not require is a specific intent to be absent. For most AWOL specifications, the offense is one of general intent: the government need not prove the member meant to break the rules, only that the member was in fact absent without authority. This is why a sincere intention to return is, by itself, not a defense. The framing question becomes whether the medical event made the absence involuntary or whether it merely explains why a voluntary failure to return occurred.

The genuine defense: inability to return without fault

There is a recognized circumstance that defeats the charge rather than merely softening it. A service member who is on authorized leave or otherwise properly absent, and who, through no fault of his own, becomes physically unable to return when the leave expires, has not committed the offense of being absent without leave. The classic illustrations are hospitalization for a sudden serious illness or an injury that physically prevents travel. In that situation the absence is not “without authority” in the culpable sense, because the member did not voluntarily prolong it and could not have returned.

Two conditions are central. First, …