Military Lawyers

Yes, but the challenge is rarely a direct attack on the complaint itself. An informal complaint, meaning a verbal report, an email, an anonymous tip, or a routine command observation, is just a trigger for inquiry. It is not evidence of guilt, and it is not what a court-martial tries. The meaningful challenges target the steps that come after the complaint: whether the command followed the required disposition process, whether the charges rest on probable cause and admissible evidence, and whether the way the case was handled introduced unlawful influence or bias. To see where the leverage is, it helps to map how a complaint becomes a referred charge.

How an informal complaint fits into the process

Nothing in military justice requires that a case begin with a formal, sworn document. Under Rule for Courts-Martial (RCM) 303, when a commander receives information that a member may have committed an offense, the commander must make or cause a preliminary inquiry into the matter. That information can be entirely informal. The inquiry is meant to gather facts so the command can decide what to do.

What follows is a sequence of distinct, regulated decisions. Charges are formally preferred under RCM 307, which requires a charge sheet signed under oath by an accuser before a commissioned officer authorized to administer oaths. Disposition decisions are governed by RCM 306 and the related rules, which give commanders discretion over whether and how to proceed. For a general court-martial, an Article 32 preliminary hearing ordinarily must occur after preferral, and under Article 34 the convening authority must receive legal advice from the staff judge advocate before referral. Referral itself, under RCM 601, is the convening authority’s order that specified charges be tried by a specified court-martial.

The informal complaint sits only at the very front of that chain. Everything that gives the case legal weight happens in the steps that follow.

Why “the complaint was informal” is not, by itself, a winning argument

Because the complaint is merely a trigger, the fact that it was informal is generally not a basis to dismiss. The system expressly contemplates that inquiries begin from informal information. A member who argues simply that the case should be thrown out because it started with an unsworn or anonymous report will usually lose, since the law does not require a formal origin for an investigation or for the eventual sworn preferral.

The …

A service member who urges another person to commit a crime and then changes course before anything happens often assumes the change of heart erases the offense. Under the law governing solicitation in the military, that assumption is usually wrong. Solicitation is treated as a completed offense the moment the request or encouragement is communicated. Pulling back afterward can matter for sentencing, but it does not undo a crime that the law considers already finished.

What solicitation requires

Solicitation in the armed forces is addressed by Article 82 of the Uniform Code of Military Justice, codified at 10 U.S. Code 882. The 2016 amendments that took effect on January 1, 2019 rewrote the article and broadened it. The current statute is no longer limited to a short list of offenses. Subsection (a) reaches solicitation or advice to commit any offense under the Code other than the specific offenses set out in subsection (b). Subsection (b) addresses solicitation of desertion, mutiny, and misbehavior before the enemy, and it ties the punishment to whether the solicited offense was attempted or committed.

The core conduct is the act of soliciting or advising another person to commit an offense, done with the intent that the offense actually be committed. The communication itself, paired with the criminal intent, is what the government must prove. Because the focus is on the accused’s words and intent rather than on the conduct of the person solicited, the offense does not depend on the other person agreeing, trying, or succeeding.

Why the offense is complete on communication

This is the central reason withdrawal does not function as a defense. Solicitation is complete when the solicitation is communicated with the required intent. At that instant, every element exists. The crime does not wait for the solicited person to act. It does not require the solicited person to even respond. The wrong that the law targets is the act of trying to set criminal conduct in motion by enlisting someone else.

Once a crime is complete, later events cannot retroactively make it not have happened. A person who solicits an offense and then reconsiders before any action occurs has still committed the completed offense of solicitation. The reconsideration occurs after the elements have already come together. That timing is what defeats the idea of withdrawal as a true bar to prosecution.

Withdrawal compared to abandonment of an attempt

The confusion often …

This question mixes two different ideas that are easy to blur: whether a court-martial has power over the person, and whether it has power over the particular act. The general rule is that court-martial jurisdiction reaches conduct committed while a person is subject to military law, not conduct committed as a civilian before any military status existed. Concealment of the earlier conduct does not, by itself, convert a civilian-era act into a military offense. What concealment can do is create a separate, in-service offense, and it can affect the enlistment that is the source of jurisdiction. The distinctions matter, so it helps to take them in order.

Court-martial jurisdiction depends on military status

The foundational rule for personal jurisdiction in military justice is status. In Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court held that court-martial jurisdiction over an accused depends solely on the accused’s status as a member of the armed forces, and not on whether the charged offense is connected to military service. Article 2 of the Uniform Code of Military Justice (UCMJ) defines who has that status, principally members on active duty and others lawfully brought within the code.

Status, however, operates from the moment it attaches forward. A person who was a civilian when an act occurred was not subject to the UCMJ at that time. The UCMJ generally does not reach back to punish purely civilian conduct that predates a person’s entry into the service, even if that conduct would have been an offense had the person been a service member when it happened.

Why concealment does not retroactively create military jurisdiction over the old act

Concealing a prior civilian act does not change when that act occurred or the legal status of the person who committed it. The earlier conduct remains a civilian-era event, and the military’s authority over the person began only at enlistment. Treating concealment as a way to court-martial someone for pre-service conduct would effectively impose military law retroactively on a civilian, which the status-based framework does not allow. So the pre-enlistment act itself ordinarily cannot be charged as a UCMJ offense simply because the service member later hid it.

What concealment can be charged as: a separate, in-service offense

The concealment is a different matter, because it can occur at or after enlistment, when the person is or is becoming subject to military law. The UCMJ addresses …

The short answer is that Article 82 is the wrong fit for most conduct described as soliciting a minor, and prosecutors typically rely on other provisions instead. To see why, it helps to look closely at what Article 82 actually covers after recent statutory changes, and at the articles the military more commonly uses for offenses involving children.

What Article 82 covers today

Article 82 of the Uniform Code of Military Justice, codified at 10 U.S.C. 882 and titled “Soliciting commission of offenses,” was rewritten as part of the reforms that took effect on January 1, 2019. Under the current text, subsection (a) makes it an offense for a person subject to the Code to solicit or advise another to commit an offense under the Code, other than the offenses singled out in subsection (b). Subsection (b) addresses solicitation of four especially serious military offenses: desertion, mutiny, misbehavior before the enemy, and sedition, with enhanced exposure when the solicited conduct is actually attempted or committed.

Two features of this structure matter for the question. First, Article 82 is about soliciting another person to commit a military offense. The crime is complete when the accused communicates the solicitation or advice with the intent that the other person carry out the offense; the person solicited need not agree or act. Second, the statute reaches solicitation of “an offense under this chapter,” meaning an offense defined elsewhere in the UCMJ.

Why “solicitation of a minor” usually does not fit Article 82

When people describe soliciting a minor, they typically mean an adult communicating with a child, or someone believed to be a child, to entice or persuade that child to engage in sexual activity. That conduct is directed at the minor as the intended participant; it is not advising a third party to go commit a separate military crime. Article 82 punishes asking someone else to break the law, not the act of trying to lure a child oneself. For that reason, charging the luring of a minor as an Article 82 solicitation is generally a mismatch between the conduct and the elements.

There is a narrow theoretical scenario in which Article 82 could apply: if a service member urged another service member to commit a UCMJ offense involving a child, the solicitation of that other service member could be charged under Article 82. But that is solicitation of the co-actor, not solicitation …

Grants of immunity are a familiar tool in the military justice system. When the government needs the testimony of a person who would otherwise invoke the privilege against self-incrimination, a general court-martial convening authority can grant immunity to compel that testimony. A natural question arises when the immunized witness then gives testimony the government dislikes, perhaps testimony that is inconsistent with an earlier statement: can the convening authority simply revoke the immunity as a consequence? The short answer is that the protection already conferred by a valid grant cannot be stripped away after the fact in retaliation for unfavorable testimony, although the witness may face other exposure depending on what kind of immunity was granted and how the witness behaves. This article explains why.

Two kinds of immunity, with different reach

Military law, under Rule for Courts-Martial (RCM) 704, recognizes two forms of immunity, and the distinction is central to the question. Transactional immunity exempts the person from trial by court-martial for one or more specified offenses. It is the broader form, because it bars prosecution for the underlying conduct entirely. Testimonial immunity, often called use and derivative-use immunity, is narrower: it protects the person against the use of the compelled testimony or statements, and against any information directly or indirectly derived from them, in a later court-martial. Testimonial immunity does not bar prosecution of the witness; it only forbids the government from using the immunized testimony and its fruits against that person. Only testimonial immunity is constitutionally required to overcome the privilege against self-incrimination under the Fifth Amendment and Article 31 of the Uniform Code of Military Justice (UCMJ).

This framework matters because the consequences of inconsistent testimony differ sharply depending on which immunity was granted. A witness with transactional immunity for an offense cannot be prosecuted for that offense regardless of how the testimony comes out. A witness with testimonial immunity can still be prosecuted, just not with the immunized words or anything derived from them.

Who grants immunity and what the grant does

Within the armed forces, only an officer authorized to act as a general court-martial convening authority may grant immunity, and the grant is made pursuant to RCM 704. A grant of immunity is a unilateral act of the convening authority that removes the witness’s right to refuse to testify on self-incrimination grounds. Once that protection attaches and the witness testifies in reliance on it, …

Military culture runs on direction, and a comment from a superior officer can feel like a command even when it was phrased as a casual remark. That ambiguity matters in a prosecution under Article 90 of the Uniform Code of Military Justice, which punishes willful disobedience of a superior commissioned officer. Because Article 90 requires a genuine, lawful order directed specifically to the accused, the line between an informal suggestion and an actual order can become the central issue. An informal suggestion can be mistakenly treated as an order, and the defense exists precisely to test whether what the government calls an order really was one.

What Article 90 requires

Article 90 punishes a service member who willfully disobeys a lawful command of their superior commissioned officer. The elements require that the accused received a lawful command from a certain commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew the officer held that status, and that the accused willfully disobeyed the lawful command. Each element must be proven beyond a reasonable doubt.

Two features of these elements deserve emphasis. The command must be a genuine command, and the disobedience must be willful. Both features create space for a defense when the communication was really a suggestion rather than a directive. If the words did not amount to a command, the first element fails. If the accused did not understand the words as a command, the willfulness element is undermined.

A personal, specific command, not a general expectation

Article 90 is reserved for personally directed commands. The order must be directed specifically to the subordinate. Violations of general regulations, standing orders, or directives, or failures to perform previously established duties, are not punishable under Article 90, although they may be charged under Article 92. This distinction is well settled and reflects the seriousness of Article 90, which carries heavy potential punishment and is aimed at the deliberate defiance of a direct, personal command.

The requirement of a specific, personal command is what makes the informal-suggestion problem real. A superior who muses aloud that something ought to be done, who expresses a preference, or who offers advice has not necessarily issued a command directed to a particular subordinate with the expectation of immediate obedience. The government must show that the communication crossed from suggestion into command.

How a suggestion can be misread as an order

Several …

When a service member has filed an equal opportunity complaint that is still pending, and the same member faces administrative separation for misconduct that has nothing to do with that complaint, a sensitive question arises. Can the command refer to the unresolved complaint as part of the discharge case. The answer is shaped less by a single prohibition than by the law against reprisal and by the basic fairness requirements of the separation process.

Two Separate Tracks That Should Stay Separate

An equal opportunity complaint and an administrative separation for misconduct travel on different tracks. The EO complaint is a protected process for raising allegations of discrimination or harassment. The separation is a personnel action based on the member’s own conduct. In principle, the misconduct can be addressed on its own merits regardless of whether the member has a pending complaint, and the complaint should be resolved through the EO process regardless of the separation.

The problem appears when the two tracks are merged, because pulling an unrelated, unresolved EO complaint into a discharge case can suggest that the member is being separated, at least in part, for having complained. That is the precise concern the reprisal protections are designed to prevent.

The Reprisal Problem

Filing an EO complaint is a protected activity. Taking an unfavorable personnel action against a member because of that protected activity is reprisal, and reprisal is prohibited. Reprisal is generally defined as taking or threatening an unfavorable action, or withholding or threatening to withhold a favorable action, against a person because that person engaged in protected activity related to equal opportunity. An involuntary separation is plainly an unfavorable action.

If a commander cites the unresolved EO complaint during discharge proceedings, the citation can become evidence that the protected activity was a motivating factor in the separation. Even when the underlying misconduct is genuine and unrelated, injecting the complaint into the proceeding invites the inference that the member is being punished for complaining. This exposes the action to a reprisal challenge and can taint the separation.

For members who communicated wrongdoing through protected channels, the Military Whistleblower Protection Act, codified at 10 U.S.C. 1034, prohibits taking or threatening unfavorable personnel actions as reprisal for a protected communication, and it provides an investigative and remedial framework. Allegations of reprisal connected to the EO process can also be raised within the equal opportunity system itself, either by amending …

A security clearance revocation can sometimes be overcome through the appeal process, and that process often includes an in-person proceeding. The phrase “personal appearance” has a specific meaning in this context, and it is possible to go through it without an attorney. Whether doing so is wise is a different question. Understanding the structure of the process makes clear why the personal appearance can lead to reinstatement and why the decision to proceed without counsel carries real risk.

How a clearance reaches the point of revocation

For most Department of Defense personnel, the adjudication of a security clearance is handled by the Defense Counterintelligence and Security Agency adjudication function, with hearings and appeals administered through the Defense Office of Hearings and Appeals, commonly called DOHA. When concerns arise, the individual receives a Statement of Reasons, which identifies the specific adjudicative guidelines at issue and describes the conduct or circumstances that triggered the action. The Statement of Reasons is the roadmap for everything that follows, because the individual must respond to each allegation and present mitigating evidence tied to it.

The personal appearance and how it fits the process

After the individual responds to the Statement of Reasons, the matter may proceed to a proceeding before a DOHA administrative judge. For applicants and contractor personnel, this is frequently the stage where a hearing or personal appearance occurs. The individual can present documents, offer testimony, explain the circumstances behind the security concerns, and address the government’s evidence. The administrative judge then issues a written decision applying the whole-person standard and the relevant adjudicative guidelines. If the judge finds that the individual has sufficiently mitigated the concerns, that can result in a favorable decision and continuation or reinstatement of eligibility.

So yes, a personal appearance can be the vehicle through which a previously unfavorable posture is reversed and eligibility is restored. The personal appearance is the individual’s opportunity to put a human face on the paperwork, supply context, and demonstrate rehabilitation, reliability, or that the underlying concern has been resolved.

Doing it without counsel is permitted

There is no rule requiring an attorney at a personal appearance. Individuals are allowed to represent themselves, and many proceed pro se. The judge does not provide legal advice, but the proceeding is administrative rather than criminal, and the individual is entitled to participate, present evidence, and respond. In that narrow sense, a revoked clearance can be …

Service members sometimes feel they were singled out, that others did the same thing without consequence while they alone face a court-martial. The legal name for that grievance is selective prosecution. The question is whether an accused can raise selective prosecution in a court-martial and what it actually requires. The answer is that selective prosecution can be raised, but it is best understood as a constitutional challenge to the prosecution itself, raised by motion to dismiss, rather than as an affirmative defense to the elements of the offense. And it is a difficult claim to win, demanding a demanding showing of both discriminatory effect and discriminatory purpose.

Selective prosecution is a challenge to the charging decision, not the conduct

It is important to be precise about the nature of the claim. An affirmative defense, in the usual sense, admits or addresses the conduct but provides a legal justification or excuse, such as self-defense or duress, that defeats criminal liability even if the act occurred. Selective prosecution is different. It does not say the accused did not commit the offense, and it does not justify the conduct. Instead, it argues that the decision to prosecute this particular person was made for an unconstitutional reason, so the prosecution should not proceed at all.

For that reason, selective prosecution is litigated as a motion to dismiss directed at the propriety of the charges rather than as a defense submitted to the panel on the merits. In a court-martial, motions raising defects in the preferral or referral of charges, and motions to dismiss on constitutional grounds, are presented to the military judge before findings. The military judge, not the members, decides the claim. This matters because it shapes how and when the issue must be raised and who bears the burden.

The constitutional standard

Selective prosecution doctrine comes from the constitutional guarantee of equal protection, which applies to the federal government, including the military, through the Due Process Clause of the Fifth Amendment. The governing standard is strict. A prosecutor’s broad discretion to decide whom to charge is presumed to be exercised in good faith, and a defendant challenging it must overcome that presumption with clear evidence.

To prevail, the accused must show two things. First, discriminatory effect: that others who were similarly situated and engaged in the same conduct were not prosecuted. Second, discriminatory purpose: that the decision to prosecute this accused was …

Generally no. Performance data from weapons qualification records, such as marksmanship scores or range proficiency ratings, is not admissible as character evidence in an assault trial because it does not speak to a pertinent character trait and is not a permitted method of proving character. The Military Rules of Evidence allow only specific kinds of character evidence, proved in specific ways, and skill with a weapon is neither a relevant trait for an assault charge nor something that may be shown through performance records. There are narrow situations where such records could be relevant for a different, non-character purpose, but using them to suggest the accused is or is not the type of person who would commit assault will not pass muster. This article explains why.

Character evidence rules in an assault case

In an assault prosecution, the character traits that matter are limited. Under Military Rule of Evidence 404(a), character evidence is generally inadmissible to prove that a person acted in conformity with that character. The accused may, however, offer evidence of a pertinent trait. For a violent offense such as assault, the recognized pertinent trait is peacefulness. An accused may present evidence that he or she is a peaceful person to make it less likely that the accused committed the violent act charged. Once the accused does so, the government may rebut with evidence of the same trait.

The key word is pertinent. A trait is pertinent only if it bears a logical relationship to the offense. Marksmanship skill, range scores, and weapons qualification ratings measure technical proficiency, not disposition toward violence or peacefulness. Just as military courts have held that being a good duty performer or a good service member is not pertinent to whether a person committed a particular offense, proficiency on a weapons range is not a character trait that makes assault more or less likely. A high or low qualification score says nothing about whether a person tends to resolve disputes peacefully.

How character must be proved: reputation and opinion

Even if a party could identify a pertinent trait, Military Rule of Evidence 405 limits the method of proof to reputation and opinion testimony in the ordinary case. Performance data from qualification records is neither. It is documentary evidence of specific instances of measured performance. Specific instances may be used substantively only when a character trait is an essential element of a charge, claim, …