Military Lawyers

In a military sexual assault prosecution, the investigation usually focuses on one person early. Once that focus sets in, leads pointing to a different perpetrator can go unexamined. When the defense later argues that someone else committed the offense, the strength of that argument often depends on whether investigators pursued or ignored evidence of an alternate suspect. Whether a failure to investigate alternate suspects rises to a due process violation depends on a careful distinction between what the government suppressed and what it simply never collected.

The constitutional baseline

The Due Process Clause guarantees an accused a fair trial, and a central component of that guarantee is the prosecution’s duty to disclose favorable evidence. Under Brady v. Maryland, 373 U.S. 83 (1963), the government must turn over evidence favorable to the accused that is material to guilt or punishment, including evidence that points toward a different suspect. Courts have recognized that evidence of an alternate suspect can be powerful Brady material, because in the hands of the defense it can support an alternative theory of the crime and can be used to discredit the thoroughness of the investigation.

These principles apply in courts-martial. The military discovery rules, including Rule for Courts-Martial 701, reinforce the constitutional duty by requiring trial counsel to disclose evidence favorable to the defense. So if investigators developed information about another possible perpetrator and the government withheld it, that is a classic due process problem, and the materiality standard governs the remedy: relief is warranted where there is a reasonable probability that disclosure would have changed the result.

Suppression versus failure to develop

The harder question is what happens when the alternate-suspect evidence was never gathered at all. There is an important difference between suppressing favorable evidence that exists in the government’s files and failing to investigate a lead that might have produced such evidence. The Brady duty attaches to evidence the government possesses or controls. It does not, by its own terms, require the police or investigators to chase down every conceivable lead.

This means a bare failure to investigate alternate suspects is not automatically a Brady violation. The constitutional violation is most clearly established when the government had favorable information about another suspect and did not disclose it. When investigators simply declined to pursue a lead, the defense must usually frame the problem differently.

How the defense uses an inadequate investigation

Even where a failure …

Senior enlisted advisors, such as a command sergeant major, a command master chief, or a senior enlisted leader at any echelon, occupy positions of enormous influence. They advise the commander on the health, discipline, and welfare of the enlisted force, and their recommendations carry real weight. That influence sometimes prompts a basic question about authority: can a senior enlisted advisor initiate formal adverse action against a service member on his own, independent of the commanding officer? As a matter of military law, the answer is no for the disciplinary tools that actually impose consequences. Those authorities are vested in the commander by statute and regulation, not in the senior enlisted advisor, however senior or trusted that advisor may be.

The difference between influence and legal authority

It helps to separate two ideas that are easy to blur. A senior enlisted advisor has substantial practical influence: he can identify problems, counsel subordinates, recommend a course of action, and shape how the command responds to misconduct. That is not the same as legal authority to take adverse action. Adverse action in the formal sense, meaning measures that carry legal or career consequences, is governed by the Uniform Code of Military Justice (UCMJ) and service regulations that assign specific powers to specific officeholders. Those instruments place the consequential decisions with commanders, not with enlisted advisors.

Nonjudicial punishment is a commander’s power

Consider nonjudicial punishment under Article 15 of the UCMJ, codified at 10 U.S.C. section 815. By its terms, Article 15 confers the power to impose nonjudicial punishment on a commanding officer. In the Navy and Marine Corps, a designated officer in charge may also exercise it, and a senior commander may in some circumstances delegate the authority to a principal assistant who is a commissioned officer, where service regulations permit. What the statute does not do is give that power to a noncommissioned officer or to a senior enlisted advisor acting on his own. A command sergeant major cannot convene an Article 15 proceeding or impose its punishments in his own name. He may recommend that the commander do so, and he may be present and influential, but the decision and the authority are the commander’s.

Preferral of court-martial charges and other formal actions

The same pattern holds across the disciplinary system. Court-martial charges are preferred and then referred through a chain of authority that culminates in commanders who hold court-martial convening …

When a unit assembles for a command urinalysis, the event is usually framed as a routine inspection rather than an interrogation. Yet service members often talk during these events. Some explain why their test might come back positive, some admit to recent drug use, and some make offhand comments to a noncommissioned officer running the collection. Whether any of those statements can later be used against the speaker at a court-martial depends on a set of distinct legal rules that operate independently of the urine sample itself.

The physical sample and the spoken word are treated differently

The first thing to understand is that the law separates the act of producing urine from anything a service member says. Article 31 of the Uniform Code of Military Justice protects against compelled self-incrimination, but courts have long held that the article protects testimonial or communicative evidence, not the physical production of a body fluid. Ordering a member to provide a urine sample does not, by itself, trigger Article 31 warnings, because giving urine is not a statement.

Spoken or written statements are a different matter. If a member tells a collection official “I smoked over the weekend,” that is communicative evidence, and its admissibility turns on whether the protections of Article 31(b) and Military Rule of Evidence 305 were satisfied.

When Article 31(b) warnings are required

Article 31(b) requires a rights advisement before questioning when several conditions are met. The questioner must be a person subject to the UCMJ, the questioner must interrogate or request a statement, the person questioned must be a suspect or accused, and the questioning must concern the suspected offense. The Court of Appeals for the Armed Forces has explained that the warning requirement attaches when the questioner is acting, or could reasonably be perceived as acting, in an official law enforcement or disciplinary capacity. This framework was confirmed in United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014).

The key word in the briefing context is questioning. A standard urinalysis briefing that simply explains the collection procedure, the chain of custody, and the consequences of refusal is generally not interrogation. No one is being asked an incriminating question, so the warning requirement is not triggered, and a member who blurts out an admission during such a briefing has usually made a spontaneous, unwarned statement that is not the product of questioning.

When the briefing turns into an

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Consent sits at the center of most sexual misconduct prosecutions under the Uniform Code of Military Justice. Article 120 of the UCMJ, codified at 10 U.S.C. 920, supplies a statutory definition that controls how military judges and panels evaluate whether an alleged sexual act or sexual contact was lawful. Understanding that definition is essential because the presence or absence of consent often determines whether conduct is criminal at all.

The Statutory Definition of Consent

Article 120 defines consent as a freely given agreement to the conduct at issue by a competent person. The phrase carries weight in each of its parts. The agreement must be freely given, meaning it cannot be the product of force, threat, or fear. It must be an agreement to the specific conduct at issue rather than a general willingness to be in someone’s company. And it must come from a competent person, meaning someone with the present capacity to understand and agree to what is happening.

This definition is deliberately framed around the conduct in question. A person who agrees to one act has not necessarily agreed to another, and agreement at one moment does not lock a person into agreement that continues indefinitely.

What the Statute Says Does Not Establish Consent

Much of the practical content of Article 120 lies in the circumstances the statute expressly excludes from the meaning of consent. The law states that an expression of lack of consent through words or conduct means there is no consent. It also makes clear that a lack of verbal or physical resistance does not by itself constitute consent. This rejects the older intuition that a person must fight back or say no in a particular way for the encounter to be non-consensual.

The statute further provides that submission resulting from the use of force, threat of force, or placing a person in fear does not amount to consent. Yielding under pressure is not agreement. Article 120 also specifies that a current or previous dating, social, or sexual relationship, standing alone, does not constitute consent, and neither does the manner of a person’s dress. These provisions remove from the courtroom several arguments that historically clouded sexual misconduct cases.

Capacity and the Limits of Consent

Article 120 ties consent to competence. A sleeping, unconscious, or otherwise incompetent person cannot consent. The statute also recognizes that a person cannot consent to force likely to cause death …

Military separation does not always grow out of a crime or an act of misconduct. The armed forces maintain a parallel track that lets a command remove a service member whose work simply does not meet the standard the service requires, even when nothing the member did would support a criminal charge or a punitive action. This kind of separation rests on a distinct legal threshold, and understanding where that line sits matters to anyone facing a board built on performance rather than wrongdoing.

Two Separate Tracks

Administrative separation in the United States military is governed for enlisted members by Department of Defense Instruction 1332.14 and for commissioned officers by Department of Defense Instruction 1332.30, each implemented through service-specific regulations. Within those frameworks, the law draws a clear distinction between separation for misconduct and separation for unsatisfactory or substandard performance. Misconduct cases turn on what a member did wrong, such as a drug offense, a pattern of disciplinary problems, or a serious incident. Performance cases turn on a different question entirely: whether the member is able and willing to meet the duties of the grade and the demands of continued service. Because no wrongdoing is alleged, the analysis is forward looking, focused on fitness for retention rather than blame for a past act.

What “Substandard Performance” Means

Substandard or unsatisfactory performance is generally understood as a demonstrated failure to perform assigned duties at the level expected of the member’s grade, experience, and position. It can show up as repeated failure to meet job standards, an inability to adapt to military life, failure to maintain qualifications required for the rating or specialty, or a documented pattern of poor evaluations. For officers, the show-cause framework also reaches substandard performance of duty as a recognized basis for requiring an officer to justify continued service. The defining feature is that the case is about capability and results, not about a deliberate violation of a rule.

The Threshold of Proof

The threshold for a performance-based separation is meaningfully lower than the standard for a court-martial. A court-martial conviction requires proof beyond a reasonable doubt. An administrative separation board, by contrast, decides whether the alleged basis is supported by a preponderance of the evidence, meaning it is more likely than not that the facts are as alleged and that those facts establish the stated basis for separation. The board must find both that the underlying basis …

Under the federal Stolen Valor Act of 2013, simply lying about military service or decorations is not a crime. What transforms a false claim into a prosecutable offense is the purpose behind it: the law reaches a person who lies in order to obtain something of real, concrete value. The shorthand “personal gain” captures this idea, but the statute is more precise. It targets fraudulent claims made with the intent to obtain money, property, or another tangible benefit. Understanding exactly what counts, and what does not, requires looking at why the law was written this way and how courts have read the key phrase.

Why the statute focuses on tangible benefit

The current law exists because the original Stolen Valor Act was struck down. In United States v. Alvarez, decided in 2012, the Supreme Court held that a statute criminalizing false claims about receiving military decorations, standing alone, violated the First Amendment. The Court reasoned that even false speech generally enjoys constitutional protection and that the government could not punish a bare lie about medals without something more.

Congress responded with the Stolen Valor Act of 2013, codified within 18 U.S.C. 704. The drafters narrowed the offense to fit within the constitutional line the Court had drawn. The 2013 statute does not punish the lie itself; it punishes a fraudulent claim made with the intent to obtain money, property, or other tangible benefit. By tying the crime to fraud aimed at a concrete payoff, Congress moved the conduct out of the realm of protected speech and into the realm of fraud, which the government may regulate.

The statutory standard

The operative provision makes it an offense for a person, with intent to obtain money, property, or other tangible benefit, to fraudulently hold himself out to be a recipient of a covered military decoration or medal. Three components do the work. There must be a false claim to having received a qualifying decoration. The claim must be made fraudulently. And it must be made with the intent to obtain money, property, or another tangible benefit.

The phrase “money, property, or other tangible benefit” is the definition of personal gain that the statute uses. Money and property are self-explanatory. The harder and more litigated category is “other tangible benefit,” which the statute does not define in a list. Courts and the legislative background fill in the meaning.

What qualifies as a tangible

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Walking into a commander’s office without permission can look like a textbook trespass, and Article 134 of the Uniform Code of Military Justice has historically included an unlawful entry offense that resembles civilian trespass. Whether that conduct is properly charged under Article 134 today, however, depends on a structural change to the code and on the doctrine that prevents the government from using the general article when a specific article already covers the behavior.

The Article 134 Unlawful Entry Offense

Article 134 is the general article. It criminalizes conduct to the prejudice of good order and discipline and conduct of a nature to bring discredit upon the armed forces, and it has long included an enumerated offense of unlawful entry. The elements of that offense are that the accused entered the real property of another, or certain personal property of another amounting to a structure usually used for habitation or storage; that the entry was unlawful; and that, under the circumstances, the conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces.

On its face, this offense fits an unauthorized entry into a commander’s office. An office is real property of another, in the sense of a building or room belonging to or controlled by the command. The entry is unlawful when it is made without the consent of a person authorized to give consent and without authorization from other lawful authority. Notably, the offense does not require breaking in, entry at night, or any intent to commit a crime once inside. A simple unauthorized entry is enough, and even the intrusion of a part of the body satisfies the entry element.

The Effect of the 2019 Restructuring

The analysis changed with the restructuring of the punitive articles. Effective in 2019, the unlawful entry offense was codified as an enumerated statutory provision within the burglary and unlawful entry framework of Article 129. Unlawful entry now exists as a specific punitive article rather than only as a creature of the general article. The elements track the familiar formulation: an unlawful entry into the real property of another, or into personal property amounting to a structure usually used for habitation or storage.

This matters because of how military law allocates offenses between the specific articles and the general article. When Congress places conduct within a specific punitive article, that article, …

Preferral of charges is the first formal step in the court-martial process, and it is often a commander who takes it. A frequent point of confusion is whether a commander must obtain a lawyer’s review before preferring charges, or whether charges can be preferred on the commander’s own judgment. The guidelines that govern this are found in the Rules for Courts-Martial, and they draw a clear line between what is legally required to prefer charges and what is expected to happen before charges advance further.

What preferral actually is

Under Rule for Courts-Martial 307, preferral is the act of formally drafting and swearing to charges and specifications against an accused on a charge sheet. The person who prefers the charges is the accuser. To prefer charges, the accuser signs the charge sheet under oath before a commissioned officer authorized to administer oaths, affirming that the accuser has personal knowledge of, or has investigated, the matters set forth and that they are true to the best of the accuser’s knowledge and belief.

Preferral is therefore an accusatory step, not an adjudicative one. It starts the process and frames the allegations. It does not, by itself, send the case to a court-martial. That later movement of the case, through forwarding and referral, is where additional safeguards and legal involvement come into play.

Who may prefer charges and the standard that applies

Rule for Courts-Martial 307 provides that any person subject to the Code may prefer charges, although in practice it is commonly a commander or another servicemember with knowledge of the offense. The accuser must believe the charges are true in fact to the best of his or her knowledge and belief and that the offenses are within the jurisdiction of the armed forces. The oath ties the accuser personally to the truthfulness of the allegations.

What the rule does not impose as a precondition to preferral is a mandatory legal review of the charges by a judge advocate. The act of preferral is keyed to the accuser’s sworn belief in the truth of the charges, not to a lawyer’s prior sign-off. In that sense, a commander may prefer charges based on a good-faith belief in their truth without a formal legal review having first occurred.

Where legal review enters the process

The absence of a strict legal-review requirement at preferral does not mean lawyers are absent from the system. Legal review …

A commander’s public comments about discipline, including posts on social media, can create serious legal problems for a pending court-martial. The military justice system treats command influence over the disposition and outcome of cases as a fundamental threat to fairness, and a commander who broadcasts views about a pending case or about discipline generally may trigger that concern. The governing principle is unlawful command influence, addressed by Article 37 of the Uniform Code of Military Justice, codified at 10 U.S.C. 837.

What Article 37 prohibits

Article 37 forbids any person subject to the UCMJ from attempting to coerce or, by unauthorized means, influence the action of a court-martial or the members of a court, or the action of any convening, approving, or reviewing authority, with respect to their judicial acts. The concern is acute when the person involved is a commander, because commanders hold sway over the careers of court members, witnesses, and counsel. A public statement signaling how the commander expects a case to come out, or how members of the command should view a particular kind of misconduct, can be the kind of unauthorized influence the statute targets. A social media post is simply a modern channel for that influence and is not exempt from scrutiny.

Actual influence and the appearance of influence

Military courts have long recognized two strands of the problem. Actual unlawful command influence occurs when the improper pressure in fact affects the proceedings, for example by chilling witnesses, shaping members’ views, or steering a convening authority’s decisions. The appearance of unlawful command influence is a distinct concern focused on public confidence in the fairness of the system. The harm in an appearance case is not necessarily prejudice to the particular accused; it is the damage done to the perception that military justice is fair. This dual framework is why a commander’s words can matter even when no concrete effect on the trial is proven, although the standards governing how these claims are raised and resolved have been refined over time, including through statutory amendments to Article 37.

How a social media post can do damage

A post about discipline can undermine fairness in several concrete ways. If it references the pending case or the accused, it may function as pretrial publicity that taints the pool of potential members or pressures witnesses. If it expresses the commander’s view that a certain offense deserves harsh punishment, …

A military judge is expected to be neutral, and an accused has a recognized path to challenge a judge whose impartiality is genuinely in doubt. A natural question arises when a service member learns that the judge assigned to the case once made pointed remarks in a different matter. Can comments a judge made in an unrelated proceeding be the basis for asking that judge to step aside? The answer is yes, an accused may raise the issue, but whether disqualification follows depends on an objective test that does not treat every prior comment as disqualifying.

The right to seek disqualification

The Rules for Courts-Martial provide that a military judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. This is a self-executing duty on the judge, but it is also a right the accused can invoke. The defense may challenge the military judge and ask for recusal, and the judge must rule on that challenge on the record. If the judge declines to step aside, that ruling can later be reviewed on appeal.

The disqualification standard is broader than actual bias. A judge can be disqualified even without any proof that the judge is in fact prejudiced, because the rule reaches situations where the appearance of partiality undermines confidence in the proceeding. At the same time, the rule is not meant to let parties remove judges they simply dislike. The guidance accompanying the rules directs military judges to construe grounds for challenge broadly but also cautions them not to step down from a case unnecessarily.

The objective standard

The test for disqualification is objective, not based on the judge’s own subjective view of whether the judge can be fair. The question is whether a reasonable person, knowing all the relevant circumstances, would conclude that the judge’s impartiality might reasonably be questioned. Because the standard is framed around the perception of a reasonable, fully informed observer, the analysis focuses on facts and context rather than on the accused’s personal feelings or the judge’s personal assurances.

This objective framing matters for comments made in other cases. The mere fact that a judge spoke about legal issues, or even spoke critically, in a separate matter does not by itself meet the standard. Judges routinely rule, comment, and express conclusions in the cases before them, and doing so is part of the job. The dispositive …