Military Lawyers

Article 99 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 899, punishes misbehavior before the enemy. Its harsh penalties make a precise reading essential. The short answer is that Article 99 is built around an actual enemy, not a subjective belief that danger exists. Several of its forms require that the accused be acting before, in the presence of, or in proximity to a real enemy, and the government must prove that relationship as an element. Yet “actual enemy presence” does not mean the enemy must be visible or within arm’s reach, and a few of the article’s specific offenses do turn on the accused’s perception. Sorting out which is which is the heart of the question.

What “the enemy” means under Article 99

Article 99 lists a set of distinct offenses, including running away, shamefully abandoning or surrendering a command or position, casting away arms or ammunition, cowardly conduct, quitting one’s place of duty to plunder or pillage, causing a false alarm, willfully failing to do one’s utmost to engage the enemy, and failing to afford relief to friendly forces engaged in battle. Many of these require that the conduct occur “before or in the presence of the enemy.”

The “enemy” in this context refers to organized opposing forces, including hostile bodies the United States is opposing in armed conflict, and it can include other hostile actors in the operational sense. The point is that there must be a genuine adversary in the picture. The article is about misconduct in the face of a real military threat, not misconduct in response to an imagined one.

“Before or in the presence of the enemy” describes a tactical relationship, not a distance

The phrase “before or in the presence of the enemy” is understood in tactical, not purely geographic, terms. It describes the accused’s relationship to the enemy rather than a fixed number of yards. A service member can be “before the enemy” when the unit is in a position of exposure to enemy action or when hostile contact is reasonably imminent, even if no enemy soldier is in sight at the moment. Conversely, distance alone does not place someone before the enemy if there is no operational connection to enemy forces.

This is why the requirement is best described as proof of an actual enemy in a tactical relationship to the accused, rather than proof that …

Disobedience offenses in the military depend on the existence of a real, lawful order and, in many situations, on the accused’s awareness of it. When a servicemember is unsure whether something said to them was an actual order or merely advice, a suggestion, or casual talk, that uncertainty can matter a great deal. The question is whether genuine confusion about whether an order was official can be argued as a defense to a charge of disobedience. The answer depends on which type of order is involved and on what the government must prove about the accused’s knowledge.

Orders come in different forms, and the knowledge requirement varies

Military disobedience charges arise primarily under Article 90, which addresses willful disobedience of a superior commissioned officer, and Article 92, which addresses failure to obey lawful orders and regulations. These offenses do not all carry the same mental-state requirement, and that difference is the key to whether confusion can help an accused.

Violations of lawful general orders or regulations are typically treated as strict-liability offenses, meaning the accused’s knowledge of the order is presumed and need not be separately proven. For these, arguing that one did not realize the general order was official is a hard road, because knowledge is not an element the government must establish. By contrast, failure to obey other lawful orders, meaning orders that are not general orders or regulations, generally requires proof that the accused knew of the order. Willful disobedience under Article 90 likewise requires a knowing and intentional refusal to comply with a known order from a superior officer.

So whether confusion about an order’s official status is a viable argument depends heavily on the type of order the accused is charged with disobeying.

Where confusion about official status can matter

For orders that require knowledge, the accused’s understanding is squarely in play. If the communication was ambiguous, informal, or phrased as a suggestion rather than a command, the accused may genuinely have failed to perceive it as an order. Because willful disobedience requires an intentional defiance of a known order, an accused who did not understand that an order had been given, or who reasonably believed the speaker was offering guidance rather than issuing a directive, lacks the mental state the offense requires.

This connects to the broader principle that mistake of fact, miscommunication, or misunderstanding can serve as a defense to disobedience charges that …

Delay in notifying an accused that charges have been preferred can be grounds for relief, and in some cases dismissal, but only when the accused shows that the delay caused real harm to the ability to prepare a defense. Notification delay by itself is rarely enough. The accused generally must connect the delay to concrete prejudice.

What Preferral and Notification Mean

Preferral is the formal step by which charges are sworn against an accused under Article 30 of the Uniform Code of Military Justice. After charges are preferred, Rule for Courts-Martial 308 requires that the accused be informed of the charges and of the identity of the accuser as soon as practicable. This notification matters because it tells the accused what conduct is at issue and starts the clock running on defense preparation.

When that notification is delayed, the accused may have less time, or a worse position from which, to investigate the allegations, locate witnesses, and preserve evidence. The legal question is whether that delay rises to the level that justifies a remedy.

The Speedy Trial Protections That May Apply

Several overlapping protections can come into play when there is delay surrounding charges.

The most demanding is Article 10 of the Uniform Code of Military Justice, which applies when the accused is in pretrial confinement or arrest. Article 10 requires that immediate steps be taken to inform the accused of the charges and to bring the accused to trial or release. Courts measure Article 10 by whether the government proceeded with reasonable diligence, and mere compliance with a fixed day count does not by itself satisfy it.

Rule for Courts-Martial 707 sets a processing standard requiring that an accused be brought to trial within 120 days, measured from preferral or the imposition of restraint, whichever is earlier. This rule addresses the overall timeline rather than the notification step specifically, but excessive pretrial delay can implicate it.

The Sixth Amendment right to a speedy trial also applies in courts-martial and is evaluated using the familiar balancing analysis the Supreme Court set out in Barker v. Wingo, which weighs the length of the delay, the reason for it, whether the accused asserted the right, and the prejudice to the accused. Impairment of the defense is recognized as the most serious form of prejudice in that analysis.

Why Prejudice Is Usually Required

For a defect or delay relating to notification of preferral, …

Court-martial jurisdiction over a service member’s off-base, civilian-context misconduct is determined primarily by the member’s military status, not by where the offense happened or whether it touched military interests. Since 1987, the controlling rule has been that a court-martial may try a service member for any offense under the Uniform Code of Military Justice as long as the accused was a member of the armed forces when the offense was committed. The old requirement of a “service connection” to the offense was overruled. That said, status jurisdiction is one of several jurisdictional elements, and overlapping civilian authority and discretionary deferral still shape whether the military actually prosecutes. This article explains how the analysis works.

Status is the touchstone: Solorio v. United States

The foundational case is Solorio v. United States, decided by the Supreme Court in 1987. In Solorio, a Coast Guard member was charged with sexually abusing children in his private off-base home in Alaska during a prior tour of duty. He argued the court-martial lacked jurisdiction because the offenses had no connection to his military service, relying on the earlier decision in O’Callahan v. Parker, which had required a service connection for court-martial jurisdiction.

The Supreme Court overruled O’Callahan. It held that the jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces, not on the service connection of the offense charged. After Solorio, the fact that misconduct occurred off base, in a private setting, and looked like an ordinary civilian crime does not defeat court-martial jurisdiction. If the accused was a service member subject to the UCMJ at the time, the offense is triable by court-martial regardless of where it happened or how civilian it appears.

The jurisdictional elements that still must be satisfied

Solorio simplified the offense-side inquiry, but several jurisdictional prerequisites remain. A valid court-martial requires that the accused be a person subject to the UCMJ under Article 2, that the charged conduct be an offense under the UCMJ, that the court-martial be properly convened by a competent convening authority, and that the court be composed in accordance with the law. Personal jurisdiction over the accused depends on a proper status relationship with the armed forces, which is ordinarily established by valid entry into the service and continues until that status is terminated.

For off-base civilian misconduct, the practical questions are usually whether the person was on active …

When a court-martial ends in a conviction, the accused does not simply walk away wondering what comes next. Military law builds in a sequence of advisements about the right to appeal. A common question is whether the military judge personally must deliver a detailed lecture on those rights from the bench, or whether the obligation rests elsewhere. The answer turns on how the system divides responsibility between defense counsel and the judge.

Who carries the primary duty to explain appellate rights

The first and most important advisor on appellate rights is the accused’s own defense counsel, not the judge. Defense counsel is required to explain to the accused the avenues of appellate review that apply in the particular case and to advise the accused about how to exercise or waive those rights. This duty exists because the lawyer knows the case, the sentence, and the realistic options, and can give individualized advice that a generic courtroom statement cannot.

Because counsel carries this burden, the military judge is generally not required to recite a full, detailed explanation of appellate rights to every convicted servicemember as a matter of routine. The judge presides over the trial and the announcement of findings and sentence, but the detailed counseling on appeal ordinarily happens between the accused and the defense attorney, both before and after trial.

When the military judge does speak to appellate rights

There is an important exception. The accused has the right to ask the military judge to explain all or any portion of the appellate rights in open court before the court-martial adjourns. If the accused makes that request, the judge addresses it on the record. This puts a backstop in place: if the accused feels the counsel’s explanation was unclear or wants the matter formalized in the transcript, the judge can supply that explanation directly.

In practice, courts also use standardized post-trial and appellate rights forms. These written advisements describe the levels of review, the deadlines, and the right to appellate counsel. The accused typically reviews and acknowledges such a form with counsel present. The combination of counsel’s advice, the written form, and the availability of an on-request explanation by the judge is what satisfies the system’s overall obligation to inform the accused.

What the appellate rights actually cover

The advisement is meaningful only if the accused understands what is being explained. Depending on the sentence and the type of …

Yes, returning late from weekend liberty can be charged under Article 86 of the Uniform Code of Military Justice. The offense most people associate with Article 86 is being “AWOL,” but the article actually covers several distinct ways a member can be unlawfully absent, and one of them is failing to return to a place of duty at the time set by proper authority. A pass that expires Sunday night and a member who shows up Monday morning can, in theory, fall within the statute. Whether such a case is actually prosecuted, and whether it survives the defenses available, is a separate question.

What Article 86 actually prohibits

Article 86, codified at 10 U.S.C. 886, is titled “Absence without leave.” It is broader than the slang term AWOL suggests. The article reaches a member who, without authority, fails to go to an appointed place of duty at the prescribed time, goes from that place, or absents himself or remains absent from his unit, organization, or place of duty. Returning late from liberty is a classic example of the third theory: the member’s authorized absence ended at a fixed time, and the member remained absent past that time without authority.

Liberty and a pass are forms of authorized absence granted for short periods, distinct from chargeable leave. When a commander authorizes weekend liberty until a set hour, that hour is the boundary of the authorization. Crossing it without permission converts an authorized absence into an unauthorized one.

The elements the government must prove

For the typical “failure to return” case, trial counsel must establish three things beyond a reasonable doubt. First, that the accused absented himself or remained absent from his unit, organization, or place of duty. Second, that the absence was without authority from anyone competent to grant leave. Third, that the absence continued until a certain time and date, which fixes the duration and helps determine the maximum punishment.

Duration matters a great deal. A member who is a few hours late occupies a very different position from one who is gone for days. The length of the unauthorized absence drives the maximum punishment and often the practical decision about how, or whether, to dispose of the matter at all.

Knowledge and intent

A point that frequently arises in late-return cases is knowledge. Although a short unauthorized absence is not a specific-intent offense in the way desertion is, the …

Yes. An Article 32 preliminary hearing officer can recommend that charges be dismissed even when probable cause is present. Probable cause and disposition are two different questions, and the officer is required to address both. Understanding why these inquiries are separate helps a service member and counsel make better use of the hearing.

What the Reforms Changed

The function once known as the Article 32 “investigation” became a “preliminary hearing” after Congress amended Article 32 of the Uniform Code of Military Justice. The changes were enacted in the National Defense Authorization Acts for Fiscal Years 2014 and 2015, implemented through revisions to Rule for Courts-Martial 405, and applied to preliminary hearings conducted on or after December 26, 2014. The earlier model, which functioned partly as a broad discovery tool, was narrowed. The hearing now centers on a limited set of statutory questions rather than a free-ranging look at the entire case.

The officer who runs the hearing is called the preliminary hearing officer. Whenever practicable, this is a judge advocate, and for a general court-martial the rules favor an officer who is a judge advocate certified under Article 27(b).

The Two Separate Questions

Article 32, as amended, directs the preliminary hearing officer to determine several things. First, whether there is probable cause to believe that an offense has been committed and that the accused committed it. Second, whether the convening authority has court-martial jurisdiction over the accused and the offense. Third, whether each specification is properly drafted. Fourth, a recommendation about how the case should be disposed of.

Probable cause is a low threshold. It asks only whether there is a reasonable belief that the offense occurred and that the accused was involved. It is far below the trial standard of proof beyond a reasonable doubt. Because the bar is low, the government can frequently clear it.

Disposition is a different inquiry altogether. Even where the evidence reaches probable cause, the officer may conclude that referral to a general court-martial is not the right outcome. The recommendation may favor dismissal, resolution at a lower forum such as a special court-martial, nonjudicial punishment, or administrative action. Nothing in the rule forces the officer to recommend trial simply because the probable cause box can be checked.

Why a Dismissal Recommendation Can Coexist With Probable Cause

The preliminary hearing officer weighs the strength and reliability of the evidence, not just its bare sufficiency. …

When a service member who is absent without leave decides on their own to come back and report in, a natural question follows. Does that voluntary return reduce their guilt? The honest answer separates two ideas that are easy to blur. Voluntary return does not erase the fact that the absence occurred, so it does not eliminate culpability for the completed offense. It can, however, shape how the absence ends, and the manner of termination directly affects the maximum punishment the law allows. Understanding that distinction is the key to understanding why voluntary return matters.

What Article 86 punishes

Article 86 of the Uniform Code of Military Justice covers absence without leave, commonly called AWOL. It reaches a member who, without proper authority, fails to go to an appointed place of duty, leaves that place, or absents themselves from their unit, organization, or place of duty. The offense is fundamentally about being away without authorization for a period of time.

A useful feature of Article 86 is that the length of the absence is the essential element that drives the punishment. Unauthorized absence is not treated as a continuing offense in the sense that would keep expanding the crime indefinitely. Instead, the duration of the absence is what the government measures, and that duration sets the framework for the available penalty. The longer the absence, the more serious the exposure.

Termination of the absence

An absence under Article 86 must end at some point, and the law recognizes different ways that can happen. One way is by apprehension, meaning the member is taken into custody by authorities. Another way is by surrender, which the law describes as presenting oneself to a military authority, whether or not that authority belongs to the same armed force, notifying that authority of the unauthorized absence status, and submitting or showing a willingness to submit to military control. A surrender of that kind terminates the unauthorized absence.

Voluntary return is the surrender path. A member who walks back onto the installation, reports to a command authority, and makes clear they are turning themselves in has terminated the absence by surrender rather than by apprehension. Courts have recognized this even in informal settings, such as a member who returned and presented himself at his unit and was treated as having surrendered voluntarily rather than been apprehended.

How return affects punishment rather than guilt

Here is where …

When an enlisted service member is suspected of falsely claiming a military decoration and is questioned about it, the right to remain silent is preserved chiefly by Article 31(b) of the Uniform Code of Military Justice. This protection attaches early, often before any formal charge, and it applies with full force in stolen valor investigations.

How Stolen Valor Reaches the Military Justice System

The phrase “stolen valor” refers to falsely claiming military awards or decorations. For civilians, the governing federal statute is the Stolen Valor Act of 2013, codified at 18 U.S.C. 704, which makes it a crime to fraudulently hold oneself out as a recipient of certain decorations with intent to obtain money, property, or another tangible benefit. That statute followed United States v. Alvarez, in which the Supreme Court struck down the broader 2005 version on First Amendment grounds because it punished false speech without requiring an intent to gain a tangible benefit.

For a service member, the same conduct is typically addressed within the military system, including under Article 134 of the Uniform Code of Military Justice for wearing unauthorized insignia or decorations or otherwise falsely representing entitlement to them. Because the conduct is treated as a possible offense, questioning about it triggers military self-incrimination protections.

Article 31(b) and Why It Is Broader Than Miranda

Article 31(b) requires that before a person subject to the code questions a suspect or an accused, the questioner must inform the member of the nature of the accusation, advise the member of the right to remain silent, and warn that any statement may be used as evidence against the member at trial by court-martial.

This protection is broader than the civilian Miranda rule in a critical way. Miranda warnings are required only during custodial interrogation. Article 31(b) is not limited to custody. It applies whenever someone subject to the code, acting in an official or law-enforcement capacity, questions a member who is suspected of an offense. Congress created this rule because the pressure of military rank and the habit of obedience can make a junior member feel compelled to answer a superior even when no one is physically in custody. For an enlisted member being asked about awards by a noncommissioned officer, an officer, or an investigator, that dynamic is exactly what Article 31(b) is meant to counter.

When the Warning Must Be Given in a Stolen Valor Inquiry

The trigger …

Two offenses live inside the same statute, share nearly all of their elements, and look almost identical on paper. Larceny and wrongful appropriation are both defined in Article 121 of the Uniform Code of Military Justice, and the conduct that triggers each can be the same physical act of taking someone else’s property. The military distinguishes them by a single element: the kind of deprivation the accused intended. That one difference separates a serious theft offense from a lesser one, and it is often the entire battleground at a court-martial.

The shared elements

Article 121 covers a wrongful taking, obtaining, or withholding of property from the possession of an owner or any other person. For both larceny and wrongful appropriation, the government must prove the same foundational facts. The accused wrongfully took, obtained, or withheld certain property from the possession of the owner or another person. The property belonged to a particular person. And the property had some value.

Up to that point, the two offenses are interchangeable. The act of taking, the ownership of the property, and the existence of value are common to both. If the analysis stopped there, every wrongful taking would be the same offense. It does not stop there, because Article 121 attaches a distinct mental state to each version.

The dividing element: intent to deprive

The difference is the nature of the intended deprivation. Larceny requires that the taking, obtaining, or withholding was done with the intent to permanently deprive or defraud the owner of the use and benefit of the property, or to permanently appropriate it for the use of the accused or someone other than the owner. Wrongful appropriation requires the same act but with the intent only to temporarily deprive the owner or to temporarily appropriate the property.

Permanent versus temporary is the whole distinction. In every other respect the offenses are identical. A member who takes a vehicle intending to keep it, sell it, or never return it commits larceny. A member who takes the same vehicle intending to use it briefly and then return it commits wrongful appropriation. Same car, same act of taking, different crime, because the intent at the time of the taking was different.

Why intent is so hard to prove

Intent lives in the mind, and the government rarely has direct evidence of what the accused was thinking at the moment of the taking. As …