Military Lawyers

Article 31 of the Uniform Code of Military Justice gives service members a right against compelled self-incrimination that is in some respects broader than the civilian Miranda protection. Article 31(b) requires that before questioning a person suspected of an offense, the questioner inform the suspect of the nature of the accusation, advise that the person does not have to make a statement, and warn that any statement may be used against them. When a service member invokes the right to remain silent or asks for a lawyer, that invocation is supposed to stop the questioning. The important issue is what legally follows if questioning continues anyway.

Invocation must be clear, and then questioning must stop

To trigger the protections, the invocation generally must be clear and unambiguous. A suspect who plainly says they want to remain silent, or that they want a lawyer, has invoked. Once that happens, the Military Rules of Evidence, particularly Mil. R. Evid. 305, require that interrogation cease. If the suspect requested counsel, questioning may not resume on the basis of the investigator simply re-reading rights and getting a response. The protection mirrors the Supreme Court’s rule in Edwards v. Arizona, which held that after a suspect invokes the right to counsel, interrogation must stop and may not resume unless counsel is made available or the suspect personally reinitiates the conversation.

The primary consequence is suppression of the statement

If questioning continues after a proper invocation and the suspect then makes a statement, the central legal consequence is that the statement is subject to suppression. Article 31(d) operates as an exclusionary rule: a statement obtained in violation of the warning and rights requirements is generally inadmissible against the accused at a court-martial. In practice, defense counsel files a motion to suppress, and the military judge decides whether the invocation was clear, whether questioning improperly continued, and whether any later statement was the product of that violation. If the judge agrees, the prosecution cannot use the tainted statement in its case.

Reinitiation and waiver after invocation

Continued questioning is not automatically a violation in every situation, which is why the facts matter. If the suspect, after invoking, personally reinitiates communication with investigators, a later statement may be admissible if the government can show a knowing, intelligent, and voluntary waiver under the totality of the circumstances. The burden is on the government, and merely responding to renewed questioning …

Article 90 of the Uniform Code of Military Justice addresses the willful disobedience of a superior commissioned officer. It is among the most serious insubordination offenses because it targets the direct defiance of an officer’s personal command. A practical question arises when an order does not come straight from the officer’s own mouth but is passed along by someone else, such as a noncommissioned officer or another service member. How orders relayed through intermediaries are treated under Article 90 depends on whose order it is and on the nature of the directive, and the answer determines whether the conduct fits Article 90 at all or belongs under a different article.

What Article 90 Requires

To convict under Article 90 for willful disobedience, the government must prove that the accused received a lawful command from a superior commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew the officer was a superior commissioned officer, and that the accused willfully disobeyed the lawful command. The offense is built around the personal authority of a particular superior commissioned officer. It punishes defiance of that officer’s command, not the general violation of a rule or routine instruction. This personal character of the order is what distinguishes Article 90 from related offenses.

The Personal Order Concept

Article 90 is generally understood to involve a personal order from the superior commissioned officer to the subordinate. The order reflects the officer’s exercise of personal authority over the accused. When the question of intermediaries arises, the central issue is whether the directive remained the personal command of the superior commissioned officer or whether it became a general order or regulation by the time it reached the accused. An order that retains its character as the officer’s personal command can still support Article 90 even if it was communicated by someone else, because the form and method of transmittal are immaterial so long as the order is understandable and properly conveyed.

When Transmittal Method Does Not Matter

Military law recognizes that an order need not be delivered face to face to be valid. If an order is in proper form and is understandable, the method by which it is transmitted does not, by itself, defeat the order. A superior commissioned officer can have an order carried to a subordinate, and the subordinate’s willful disobedience of that order can fall under Article 90, provided the …

A soldier who reports misconduct and then finds himself or herself suddenly reassigned naturally wonders whether the move is punishment for speaking up. The Uniform Code of Military Justice (UCMJ) addresses this concern directly. Article 132, codified at 10 U.S.C. section 932, makes retaliation a punishable offense and reaches exactly this situation: an adverse personnel action, such as a reassignment, taken because a person reported wrongdoing. But a reassignment that follows a report is not automatically retaliation. The offense turns on a specific intent that the government must prove. This article explains what does and does not constitute retaliation under Article 132 when a soldier is reassigned after filing a misconduct report.

The offense in brief

Article 132 prohibits, among other things, wrongfully taking or threatening to take an adverse personnel action against any person, or withholding or threatening to withhold a favorable personnel action, with the intent to retaliate for that person’s reporting or planning to report a criminal offense, or for making or planning to make a protected communication. The same article also reaches conduct intended to discourage a person from making such a report or communication. The retaliation can be aimed at the reporter or at any person, which means a soldier can be a victim of retaliation even if someone else made the report.

To convict, the government must prove two core things beyond a reasonable doubt. First, that the accused wrongfully took or threatened an adverse personnel action, or wrongfully withheld or threatened to withhold a favorable one. Second, that the accused did so with the intent to retaliate for a report of a criminal offense or for a protected communication, or to discourage such reporting.

A reassignment is a personnel action

The first element is readily satisfied when a soldier is reassigned. Personnel action is understood broadly and includes a wide range of decisions affecting a service member’s status: promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions about pay, benefits, awards, or training; relief and removal; separation; and referral for mental health evaluation, among others. A reassignment is squarely within this list. So the question in a reassignment case is rarely whether a personnel action occurred. It almost always is. The contested question is why the action was taken.

The decisive element: intent to retaliate

What separates lawful reassignment from criminal retaliation is the actor’s purpose. Article 132 requires a …

When the Defense Office of Hearings and Appeals (DOHA) issues an unfavorable decision in an industrial security clearance case, the affected individual is not necessarily at the end of the road. DOHA provides an internal appellate mechanism, the DOHA Appeal Board, and the rules that govern it are specific about timing, the scope of review, and what the Board may and may not do. Understanding that process is important because the difference between a successful appeal and a forfeited one often comes down to meeting deadlines and framing the argument correctly. This article describes how the appeal works after an unfavorable DOHA ruling in the context of contractor and other industrial security clearances.

Where an unfavorable ruling comes from

DOHA adjudicates clearance eligibility for contractor personnel under the Department of Defense industrial security program. An applicant who receives a Statement of Reasons explaining why a clearance may be denied or revoked can respond in writing for a decision on the written record, or can request a hearing before a DOHA administrative judge. Either path can produce an unfavorable decision: the judge or the written-record adjudicator concludes that granting or continuing eligibility is not clearly consistent with the national interest. That adverse decision is what triggers the right to appeal.

The deadline to appeal

The single most important feature of the process is the deadline. The losing party may appeal an administrative judge’s decision to the DOHA Appeal Board, but the notice of appeal must be received by the Board within fifteen calendar days of the date appearing on the judge’s decision. This is a short window, and because it runs from the date on the decision rather than from receipt, it can be unforgiving. Missing the notice deadline ordinarily forfeits the appeal, so an individual who wants to contest an unfavorable ruling should calendar the fifteen-day period immediately and file the notice without waiting to perfect the substance of the argument.

Filing the appeal brief

The notice of appeal preserves the right to be heard; the appeal brief makes the case. After the notice is filed, the Board notifies the appealing party when the appeal brief is due. The brief is where the appellant must articulate precisely what the administrative judge did wrong and why that error changes the outcome. A persuasive brief identifies specific findings or conclusions, ties them to the standard of review described below, and explains how …

They can be. Article 89 of the Uniform Code of Military Justice does not carve out humor, and a joke told in front of a group can satisfy the elements of disrespect toward a superior commissioned officer if it crosses from informal banter into conduct that detracts from the respect owed to that officer. Whether a particular remark is actually chargeable, however, depends on context, the relationship between the speaker and the officer, and what the words or gestures conveyed. This is a fact-driven inquiry, not an automatic result.

What Article 89 prohibits

Article 89, codified at 10 U.S.C. 889, provides that any person subject to the Code who behaves with disrespect toward that person’s superior commissioned officer shall be punished as a court-martial may direct. The recognized elements are that the accused was subject to the UCMJ; that the officer was the accused’s superior commissioned officer; that the accused knew of that superior status; and that the accused did or said something that was disrespectful toward that officer.

Disrespect, for these purposes, means behavior that detracts from the respect due to the authority and person of the superior commissioned officer. It can be verbal, such as contemptuous, abusive, or denouncing language, or it can be non-verbal, such as a deliberately neglected salute, an insolent gesture, or a display of marked disdain in the officer’s presence. The conduct need not be a direct insult to the officer’s face in every case, but it must be directed at or concerning that officer.

Why the group setting matters

A joke shared in a group has features that can make it more, not less, likely to draw scrutiny. First, an audience can supply the very element of public contempt that distinguishes a chargeable remark from a private grumble. Mocking an officer in front of subordinates can undermine that officer’s authority in a way a quiet aside would not. Second, witnesses in a group can later describe what was said, the tone used, and how the remark was received, which is exactly the kind of evidence a prosecutor needs.

At the same time, the group context can cut in the accused’s favor. Ordinary unit humor, including self-deprecating jokes or good-natured ribbing that everyone present understood as friendly, often lacks the contemptuous quality the offense requires. A remark that the officer was present for, participated in, or plainly took as a joke may not detract …

The Article 32 preliminary hearing is the gateway to a general court-martial under the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 832. For an alleged crime victim, particularly in sexual assault cases, that hearing can feel like the first hard test of the military justice process. A common and important question is whether the victim’s own attorney, the Special Victims’ Counsel (SVC) in the Air Force and Coast Guard or its equivalent in the other services such as the Army and Navy Victims’ Legal Counsel, may take part in the proceeding. The answer is yes. Victims have enforceable rights at Article 32 hearings, and their counsel are permitted to participate in defined ways to protect those rights. This article explains the scope and the limits of that participation.

How the modern Article 32 hearing came to be

The role of victims’ counsel at Article 32 cannot be understood without the reforms that reshaped the hearing itself. Through the Fiscal Year 2014 and Fiscal Year 2015 National Defense Authorization Acts, Congress rewrote Article 32 from the ground up. The proceeding was renamed a preliminary hearing rather than an investigation, its purpose was narrowed to determining whether probable cause exists to believe an offense was committed and whether the accused committed it, and the hearing officer’s broad investigative and discovery role was curtailed. A central aim of these changes was to stop the hearing from being used to subject alleged victims, especially in sexual assault cases, to wide-ranging cross-examination and to function as a discovery tool for the defense. The same reform era expanded the role of counsel dedicated to representing victims, so the participation of SVC at Article 32 is part of this larger redesign of the hearing.

The victim’s underlying rights

Victims’ counsel participate because the victim holds substantive rights that need protecting. Under Article 6b of the UCMJ, a victim of an offense has, among other things, the right to be reasonably heard, the right to be treated with fairness and respect, and the right not to be excluded from public proceedings. A victim has the right not to be excluded from any portion of the Article 32 hearing related to the alleged offense, and the hearing officer may exclude the victim only on a finding by clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony. These rights …

Improper urinalysis collection procedures are used as a defense primarily by attacking the reliability of the government’s case rather than by seeking automatic suppression. In a court-martial for wrongful use of a controlled substance, a positive urinalysis is rarely the whole story; it depends on a chain of human steps from the moment the sample is provided to the laboratory’s confirmation of a result. When the defense can show that those steps were botched, it undermines both the integrity of the sample and the inference the government needs the members to draw, and that can be enough to create reasonable doubt.

What the government must prove and the inference it relies on

A charge of wrongful use under Article 112a requires the government to prove that the accused used a controlled substance and that the use was wrongful, which includes that it was knowing. When the only evidence of use is a urinalysis, the prosecution typically relies on a permissive inference: that the presence of a drug or its metabolite in the accused’s system, as explained by an expert, permits the members to infer knowing and wrongful use. The Court of Appeals for the Armed Forces has emphasized that this inference is permissive, not mandatory, and that the burden of proving wrongfulness beyond a reasonable doubt always remains on the government and never shifts to the accused. See United States v. Green, 55 M.J. 76 (C.A.A.F. 2001), and United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005).

Crucially, that inference depends on the court being convinced that the specimen tested was actually the accused’s. This is exactly where collection procedure defenses do their work. If the defense can raise a genuine doubt about whether the sample came from the accused, was contaminated, or was switched, the foundation for the inference weakens.

The collection and custody rules that govern military urinalysis

The DoD urinalysis program is governed by detailed procedural requirements, including those in the governing DoD instruction on drug testing. Collection is supposed to occur under direct observation, with an observer of the same sex watching the specimen leave the body and enter the bottle to prevent substitution or tampering. Custody is documented on the Specimen Custody Document (DD Form 2624), and the program requires uninterrupted custody and complete paperwork from collection through receipt at the laboratory, with each person who handles the sample signing the chain-of-custody record. The program …

Article 78 of the Uniform Code of Military Justice defines the offense of accessory after the fact. It addresses a service member who helps someone who has already committed a crime avoid the consequences. A recurring question is whether simply hearing another person confess to an offense, and then doing nothing about it, can make the listener an accessory after the fact. The structure of Article 78 provides a clear answer. Mere silence, without more, does not establish liability under the article, because the offense requires an affirmative act of assistance done with a specific purpose.

The Elements of Accessory After the Fact

To convict a service member under Article 78, the government must prove four elements. First, that an offense punishable under the Code was committed by a certain person. Second, that the accused knew that person had committed the offense. Third, that the accused thereafter received, comforted, or assisted the offender. Fourth, that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. Each element must be proven beyond a reasonable doubt, and the third and fourth elements are where the question of silence is resolved.

The Requirement of an Affirmative Act

The third element is the heart of the offense. It requires that the accused received, comforted, or assisted the offender. These are affirmative acts. They describe doing something to aid the person who committed the crime, such as hiding the offender, helping the offender flee, destroying or concealing evidence, or providing shelter or support to keep the offender from being caught. Knowing about a crime is not the same as acting to shield the person who committed it. Because the element is framed in terms of receiving, comforting, or assisting, a service member who does nothing has not satisfied it. Silence is the absence of an act, and the article punishes an act, not inaction.

Knowledge Alone Is Not Enough

A confession heard by the accused may go a long way toward proving the knowledge element, the second element of the offense. If a person confesses and the listener understands the essential facts of the criminal conduct, the listener may well know that an offense was committed. But knowledge is only one element. Establishing that the accused knew of the offense does not establish that the accused did anything to help the offender. The government must still …

A civilian expungement does not erase a record for federal security clearance purposes. The Standard Form 86 (SF-86), the Questionnaire for National Security Positions, requires applicants to disclose qualifying police and criminal history even when a state court has sealed, expunged, dismissed, or otherwise stricken the matter. Treating an expunged event as if it never happened is one of the most common and most damaging mistakes applicants make, because the danger usually lies less in the old arrest than in the failure to report it.

Why a state expungement does not control a federal questionnaire

Expungement is a creature of state law. A state court can order that a record be sealed or destroyed within that state’s system so that, for most state and private purposes, it is treated as if it did not occur. The federal government, which adjudicates national security eligibility, is not bound by those state orders. Federal investigators frequently retain access to records through federal databases and historical files even after a state has sealed them, so a sealed matter can resurface during a background investigation.

The SF-86 itself resolves any ambiguity. The police record section instructs applicants to report responsive information regardless of whether the record was sealed, expunged, or otherwise stricken from the court record, or whether the charge was dismissed. In other words, the form anticipates expungements and asks for them anyway within the scope of the question being answered.

Reading the question carefully: scope still applies

Disclosure is required, but applicants must still answer the specific question asked. Some entries on the police record section reach back only a limited number of years, while others, particularly those involving firearms, explosives, certain serious offenses, or domestic-violence-related matters, are not limited by time. The fact that a record was expunged does not extend or shorten the reporting window; it simply means expungement is not a reason to omit an otherwise reportable event. Applicants should read each subpart, identify what time frame and offense categories it covers, and report every responsive incident within that scope even if it was later expunged.

The narrow federal exceptions

There is a limited exception worth knowing. Certain federal first-offender drug dispositions that were expunged under federal law, specifically those meeting the criteria of 18 U.S.C. 3607 or the simple-possession provision at 21 U.S.C. 844, may not need to be reported. This exception is narrow and tied to specific federal …

Article 133 of the Uniform Code of Military Justice (UCMJ) punishes conduct unbecoming an officer. The FY2022 National Defense Authorization Act removed the former words “and a gentleman” from the offense. Because the charge turns on what an officer actually did and on the surrounding circumstances, visual evidence such as drone footage can be powerful proof. But the footage does not speak for itself. Before a panel ever sees it, the government must lay an evidentiary foundation under the Military Rules of Evidence (MRE). That foundation has several layers, and each is a place where the defense can test the recording. The charge itself sets the stakes, so it is worth starting there.

What Article 133 requires and why footage matters

To convict under Article 133, the government must prove that the accused officer did or failed to do a certain act and that, under the circumstances, the conduct was unbecoming an officer. “Unbecoming” conduct is conduct showing things like dishonesty, indecency, indecorum, or other behavior that seriously compromises the officer’s standing. Because context is central, a drone recording that purports to show the officer’s behavior must be shown to accurately depict the right person, the right place, and the right time. The foundation requirements flow directly from that need for accuracy.

Relevance comes first

Under MRE 401 and 402, the footage must be relevant, meaning it must tend to make a fact of consequence more or less probable. For an Article 133 charge, that usually means the footage must depict the conduct alleged in the specification, or circumstances bearing on it. Even relevant footage can be excluded under MRE 403 if its probative value is substantially outweighed by unfair prejudice, confusion, or misleading the panel, an argument that has force where aerial imagery is dramatic but ambiguous.

Authentication under MRE 901

The core requirement is authentication. MRE 901 requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it is. For drone footage, that means showing the recording truly depicts the scene it purports to depict. There are two common routes.

The first is testimony of a witness with knowledge. A person who observed the scene, or the operator who flew the system and watched the feed, can testify that the footage fairly and accurately represents what it shows. This “fair and accurate depiction” foundation is the traditional path and …