Military Lawyers

The military depends on a chain of command that functions even under stress, and that chain depends on subordinates treating their superiors with a minimum level of respect. Article 89 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 889, enforces that expectation by making it an offense to behave with disrespect toward a superior commissioned officer. The article is narrow in one sense, since it protects only commissioned officers who stand in a superior relationship to the accused, but it is broad in another, because disrespect can be shown through words, conduct, or the deliberate withholding of customary courtesies.

What Article 89 covers

Article 89 punishes a person subject to the Code who behaves with disrespect toward that person’s superior commissioned officer. The conduct can take many forms. It may be spoken, such as abusive, contemptuous, or denunciatory language. It may be physical conduct, such as an insolent gesture, a sneer, or a marked display of disdain. It may also be an omission, such as deliberately failing to render the customary salute or courtesy that the situation calls for. The article reaches behavior whether it refers to the officer in an official capacity or treats the officer as a private individual, because the dignity the article protects attaches to the office and the person who holds it.

It is worth separating Article 89 from its neighbors. Article 89 addresses disrespect. The willful disobedience of a lawful command from a superior commissioned officer falls under Article 90. Physical assault on a superior officer is charged under the assault provisions of the Code rather than as mere disrespect. Article 89 occupies the space below those more serious offenses, covering contemptuous or insolent treatment that does not rise to disobedience or violence.

The elements

To convict, the government must prove four elements beyond a reasonable doubt. First, that the accused did or omitted certain acts, or used certain language, to or concerning a certain commissioned officer. Second, that this conduct or language was directed toward that officer. Third, that the officer was the superior commissioned officer of the accused. Fourth, that the accused then knew the officer was the accused’s superior commissioned officer, and that under the circumstances the behavior or language was disrespectful.

Each element repays attention. The conduct must be directed at the officer, although it need not be made to the officer’s face. Disrespectful words …

The United States and the Socialist Republic of Vietnam both maintain separate legal systems for their armed forces, but they grow out of very different constitutional traditions. American military law rests on a single federal code enacted by Congress and applied by courts that are increasingly independent of the chain of command. Vietnamese military law operates within a one-party socialist state where the armed forces, the courts, and the prosecuting authorities are all integrated into a unified structure under the leadership of the Communist Party. This article compares the two systems across their legal foundations, court structures, prosecution and defense roles, the treatment of common offenses such as desertion, and the way service obligations are created.

The legal foundation in each country

In the United States, military discipline is governed by the Uniform Code of Military Justice (UCMJ), a federal statute that Congress enacted in 1950 and has amended many times since. The UCMJ is found in Title 10 of the United States Code. It defines the punitive offenses, sets out the rights of an accused, and authorizes the President to issue the Manual for Courts-Martial, which contains the procedural rules and the Military Rules of Evidence. A major modernization, the Military Justice Act of 2016, took effect in 2019 and reshaped sentencing, panel composition, and the role of the military judge. The UCMJ applies uniformly to the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.

Vietnam does not consolidate military criminal law into a single self-contained code the way the United States does. Instead, the framework is built from several layers. The Constitution of Vietnam designates the Vietnam People’s Army as the armed forces of the state. The Law on National Defense establishes the organization of the military, and the Penal Code of Vietnam supplies the criminal offenses, including a dedicated set of crimes against the order of military service that apply to soldiers. Day-to-day discipline is further shaped by decrees and regulations issued by the Government and the Ministry of National Defense. A service member accused of a crime is therefore prosecuted under the same national Penal Code that applies to civilians, with a distinct chapter of military offenses layered on top, rather than under a standalone military code.

Court structure and judicial independence

The American court-martial system recognizes three tiers of trial forum. A summary court-martial handles minor misconduct through a streamlined procedure. A …

Article 87 of the Uniform Code of Military Justice makes it an offense to miss the movement of a ship, aircraft, or unit that a service member is required to move with in the course of duty. It is codified at 10 U.S.C. 887. The questions and answers below explain the statute, the two ways it can be violated, and how it differs from absence without leave.

Understanding the Statute

What does Article 87 prohibit?

It prohibits a service member, through neglect or design, from missing the movement of a ship, aircraft, or unit with which the member is required in the course of duty to move. A person who does so shall be punished as a court-martial may direct.

Where is the offense codified?

It appears at 10 U.S.C. 887. The elements, definitions, and sample specifications are set out in Part IV of the Manual for Courts-Martial.

Does the current version also address jumping from a vessel?

Yes. The current statute is titled to cover both missing movement and jumping from a vessel into the water. Most prosecutions, however, involve the classic missing-movement theory, which is the focus here.

Why does the military treat missing movement seriously?

Movements of ships, aircraft, and units are tied to operational readiness and mission timing. A single member who fails to move can degrade a deployment, leave a billet unfilled, or force last-minute reassignment, so the code treats the failure as a distinct offense.

The Elements

What must the government prove?

The government must prove that the accused was required in the course of duty to move with a ship, aircraft, or unit; that the accused knew of the prospective movement; that the accused actually missed the movement; and that the member missed it through neglect or design.

Does the member have to know about the movement?

Yes. Actual knowledge of the prospective movement is an element. A member who genuinely did not know of the scheduled movement cannot be convicted, though knowledge may be proven by circumstantial evidence.

What counts as a “movement” under the statute?

A movement is a substantial transfer or deployment, such as a ship getting underway, an aircraft departing on a mission, or a unit deploying. A minor, routine local relocation generally does not rise to the level of a covered movement.

Must the member be required to move “in the course of duty”?

Yes. The duty to …

In civilian life, adultery is generally treated as a private matter, relevant perhaps to a divorce but rarely a crime that can be prosecuted. The military takes a different view. Under the Uniform Code of Military Justice, what is commonly called adultery, now formally titled extramarital sexual conduct, can be a punishable offense under Article 134, the general article, codified at 10 U.S.C. 934. Understanding why the military criminalizes conduct that civilian society leaves alone requires looking at the distinctive purposes military law serves and at the specific limits the law places on when this conduct is actually a crime.

A Different Purpose for Military Law

Military law exists to maintain good order, discipline, and the fighting effectiveness of the armed forces. It is not simply a parallel criminal code; it is a tool for preserving the cohesion and readiness of units whose members live, work, and deploy in close quarters and who must trust one another completely. From the earliest versions of American military law, provisions addressing personal conduct, including extramarital relationships, were included because such conduct was seen not only as a moral failing but as a potential threat to the order and effectiveness of the armed forces. The criminalization of adultery flows from that institutional purpose rather than from any general authority to police private morality.

Good Order and Discipline

The central rationale is the protection of good order and discipline. Extramarital relationships within a unit can erode trust, create jealousy and resentment, and distract members from their duties. The harm is magnified in the military context because of the intense interdependence among service members. Consider the corrosive effect if a commanding officer were involved with the spouse of a subordinate, or if a deployed member were preoccupied by worry about relationships back home. These scenarios illustrate how extramarital conduct can reduce a unit’s morale and undermine the confidence members must have in one another and in their leaders. When that trust breaks down, the unit’s discipline and ability to function suffer.

Bringing Discredit Upon the Armed Forces

The second rationale is the avoidance of conduct that brings discredit upon the armed forces. The military depends on public confidence and on the reputation of its members as people of integrity. Conduct that becomes known and reflects poorly on the service can damage that reputation. Article 134 accordingly reaches extramarital conduct that, under the circumstances, is of a …

Two service members can engage in similar extramarital conduct and face very different outcomes. One difference that consistently drives this divergence is the rank and status of the people involved. In a court-martial for adultery, now titled “Extramarital sexual conduct” under Article 134 of the Uniform Code of Military Justice, rank and status are not background details. They feed directly into whether the conduct is criminal at all, how serious it is treated, and what punishment may follow. This article explains how the relative positions of the parties shape such a case.

Why Status Matters Under the General Article

Extramarital sexual conduct is listed at Part IV, paragraph 99 of the current Manual for Courts-Martial and is charged under Article 134, codified at 10 U.S.C. section 934, the general article. Article 134 only reaches conduct that is prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The conduct is not automatically criminal; the government must prove a genuine military nexus. Rank and status matter because they directly affect whether that nexus exists and how strong it is.

Rank and Status Are Built Into the Factors

The Manual provides a list of factors at paragraph 99.c that fact finders weigh in deciding whether extramarital conduct crossed the line into a punishable offense. Several of these factors turn squarely on rank and status. They include the marital status, military rank, grade, or position of the participants; whether the parties are in the same organization, unit, or chain of command; whether the conduct had an adverse effect on the ability of any participant to perform military duties; and whether the conduct involved an ongoing relationship that affected unit cohesion or the authority of leadership. Because these considerations are written into the analysis, the positions of the two people are not incidental. They are among the central questions a court considers.

Disparities in Rank: The Officer and the Subordinate

The clearest example is a relationship that crosses a significant rank divide, especially between a senior member and a subordinate. Such a relationship raises immediate concerns about the abuse of position, coercion, favoritism, and the erosion of good order and discipline. A superior who engages in extramarital conduct with a junior member can be seen as exploiting authority, which strikes at the trust on which the chain of command depends. These dynamics make the conduct more likely …

A criminal record does not automatically end the conversation about military service, but it does change how that conversation goes. The honest answer is that it depends on what the record contains, how serious the offense was, how long ago it happened, and which branch the applicant approaches. Many people with arrests, dismissed charges, or minor convictions go on to enlist successfully. Others are barred outright. The system that sorts these cases is the moral character screening that every applicant passes through, and understanding how it works is the key to understanding the answer.

How recruiters and MEPS evaluate moral character

Enlistment is not a single decision made at a recruiting office. Applicants are processed through a Military Entrance Processing Station, commonly called MEPS, where the military evaluates aptitude through testing, physical fitness through a medical examination, and what the services call moral character. The moral character review includes a background investigation and a detailed interview about an applicant’s history with law enforcement.

The screening is designed to assess whether a person can be trusted with weapons, responsibility, and access to sensitive information. A single minor incident in someone’s past is treated very differently from a pattern of serious offenses. The military looks at the nature of the conduct, how the case was resolved, the applicant’s age at the time, and what the applicant has done since.

You must disclose everything, even sealed or expunged records

One of the most important and most misunderstood points is the duty of full disclosure. When the military asks about an applicant’s criminal history, the expectation is complete honesty about convictions, juvenile adjudications, arrests, and charges, even those that were later dismissed, sealed, or expunged. A civilian court order sealing a record does not relieve an applicant of the obligation to disclose it to the military when asked.

This matters because concealment is itself a serious problem. An applicant who hides past conduct and is later discovered can face separation and, in some cases, prosecution for fraudulent enlistment. The safer path is always full and accurate disclosure, even when an applicant believes a record was wiped clean.

The waiver process

Most criminal history that is not a permanent bar is handled through a waiver. A waiver is a formal request asking the military to accept an applicant despite conduct that would ordinarily disqualify enlistment. Waivers are not granted automatically and are evaluated case by …

For a service member facing charges under Article 120 of the Uniform Code of Military Justice, the provision at 10 U.S.C. 920 addressing rape, sexual assault, aggravated sexual contact, and abusive sexual contact, the possibility of a negotiated resolution is an important question. A plea deal, known in the military as a pretrial agreement, can in many cases reduce the penalties an accused faces, though how much and under what conditions depends on the facts and on the negotiation. This article explains how pretrial agreements work in the military system, what they can and cannot do, and the considerations that surround them in Article 120 cases.

What a pretrial agreement is in the military

In the military justice system, a plea deal takes the form of a pretrial agreement governed by Rule for Courts-Martial 705. In a pretrial agreement, the accused agrees to plead guilty to one or more offenses in exchange for concessions from the government. These concessions commonly include a limit on the sentence the accused will actually serve, the dismissal or withdrawal of certain charges or specifications, or an agreement to a charge that is less serious than the one originally preferred. The agreement is a contract between the accused and the convening authority, entered into voluntarily and with the advice of counsel.

How a pretrial agreement can reduce penalties

There are several ways a pretrial agreement can reduce the penalties an accused faces under Article 120. First, the parties can agree to a sentence limitation, so that even if a higher sentence is adjudged, the accused serves no more than the agreed amount, with the lower of the two controlling the confinement actually served. Second, the government may agree to dismiss more serious specifications in exchange for a plea to a lesser one. Because the Article 120 offenses carry sharply different maximums, with rape punishable by up to life confinement, sexual assault by up to 30 years, aggravated sexual contact by up to 20 years, and abusive sexual contact by up to 7 years, a plea to a less serious offense can dramatically lower the maximum exposure. Third, the agreement can address related charges from other articles, consolidating the resolution of the entire case.

The guilty plea inquiry and its requirements

A pretrial agreement requires the accused to plead guilty, and a guilty plea in the military is not accepted automatically. The military judge conducts a …

The United States and the Republic of Korea are close military allies, and Korean and American forces have trained and served alongside one another for decades. Yet the two countries discipline their own service members under quite different legal systems. The American system is the Uniform Code of Military Justice, a single congressional statute enforced through commander-convened courts-martial with a self-contained appellate structure. The Korean system is grounded in a constitutional provision authorizing military courts, a Military Court Act, and a substantive Military Criminal Act, and it has recently undergone a significant reform that moved appellate authority out of the military entirely. Comparing them shows two democracies adjusting the balance between military discipline and civilian judicial oversight in different directions and at different speeds.

The American framework: the UCMJ and courts-martial

In the United States, military law is consolidated in the Uniform Code of Military Justice, or UCMJ, enacted by Congress and codified in Title 10 of the United States Code. The UCMJ governs members of all the armed forces and contains both purely military offenses, such as desertion, absence without leave, and disrespect to a superior, and ordinary crimes, such as theft, assault, and murder, that can be tried under military jurisdiction.

The UCMJ is implemented through the Manual for Courts-Martial, a presidential document that supplies the Rules for Courts-Martial and the Military Rules of Evidence. Article 16 establishes three tiers of court-martial, summary, special, and general, escalating in the punishment they can impose. A general court-martial consists of a military judge and a panel of members, and the accused may elect trial by judge alone. The 2016 Military Justice Act, reflected in the 2019 edition of the Manual, fixed statutory panel sizes and modernized voting and sentencing procedures.

The American system is administered by the military, applies jurisdiction based on military status across a wide range of offenses, and provides appellate review through the service Courts of Criminal Appeals to the Court of Appeals for the Armed Forces, a civilian court, with possible Supreme Court review.

The Korean framework: constitutional military courts and a recent reform

South Korea’s military justice is rooted in its Constitution. Article 110 provides for the establishment of military courts as special courts to exercise jurisdiction over military trials, and it specifies that the Supreme Court of Korea has final appellate jurisdiction over military court decisions, with a narrow exception for certain wartime situations. …

An Article 120 conviction almost always ends a military career, and the way it ends is through a punitive discharge imposed by the court-martial. The specific characterization depends on whether the convicted member is enlisted or an officer and on which Article 120 offense the court-martial found. For the most serious offenses, the type of separation is fixed by law. For lesser offenses, a punitive discharge is common even though it is not strictly required.

Punitive discharges come from the court-martial

Unlike an administrative separation, which a command initiates through a board, a punitive discharge is part of the sentence adjudged by a court-martial after a conviction. The three punitive separations are the dishonorable discharge and the bad-conduct discharge, which apply to enlisted members, and dismissal, which is the officer equivalent. Each carries serious lifelong consequences, including the likely loss of pay, allowances, and most veterans benefits. Because Article 120 sexual act offenses must be tried at a general court-martial, the court has the authority to impose these punishments.

Mandatory separation for rape and sexual assault

For the core Article 120 offenses of rape and sexual assault, the type of separation is not left to discretion. A conviction at a general court-martial for these offenses carries a mandatory minimum punishment that includes a dishonorable discharge for an enlisted member or a dismissal for an officer. This means the military judge cannot waive the separation and a sentencing panel cannot decline to impose it. When someone is convicted of rape or sexual assault under Article 120, the punitive separation is therefore the most severe form available for that status: a dishonorable discharge or a dismissal.

Lesser Article 120 offenses

Article 120 also covers aggravated sexual contact and abusive sexual contact, which involve sexual contact rather than a sexual act. These offenses do not carry the same mandatory minimum discharge that attaches to rape and sexual assault. A court-martial that convicts a member of one of these contact offenses is not required to impose a dishonorable discharge or dismissal. In practice, however, punitive discharges remain common for these convictions. A panel may still adjudge a dishonorable or bad-conduct discharge for an enlisted member, and a dismissal for an officer, depending on the facts and the seriousness the court assigns to the conduct.

What each characterization means going forward

A dishonorable discharge is the most severe characterization for an enlisted member and reflects …

When a service member is convicted of an offense under Article 120 of the Uniform Code of Military Justice, the statute at 10 U.S.C. 920 covering rape, sexual assault, aggravated sexual contact, and abusive sexual contact, the sentencing phase becomes critical. Recent reforms have changed who imposes the sentence and how, and a clear understanding of the factors a military judge weighs is important for anyone facing this stage. This article describes the current sentencing framework and the considerations that guide a judge’s decision.

Who imposes the sentence under the current rules

The sentencing framework changed significantly with reforms tied to the Fiscal Year 2022 National Defense Authorization Act. For offenses committed after December 27, 2023, a military judge alone determines the sentence in most cases, rather than the panel of members. This shift to judge-alone sentencing was designed to promote consistency and fairness across cases. As a result, the factors discussed here are increasingly applied by a military judge exercising structured discretion rather than by a panel.

Segmented sentencing and the statutory maximums

Under the current approach, a military judge applies segmented sentencing, sometimes called offense-based sentencing, in which a separate term of confinement is adjudged for each specification of which the accused was convicted. This contrasts with the older practice of a single unitary sentence for the entire case. Each Article 120 offense carries its own statutory maximum: rape is punishable by up to life confinement, sexual assault by up to 30 years, aggravated sexual contact by up to 20 years, and abusive sexual contact by up to 7 years, along with a dishonorable discharge or dismissal and forfeiture of pay and allowances. The judge sentences within these limits for each specification.

Sentencing parameters and the structured framework

The reforms also introduced sentencing parameters, which are ranges that guide a military judge’s determination for covered offenses. These parameters were created to bring greater uniformity to military sentencing and to reduce the wide disparities that could occur when different panels handled similar cases. The judge works within this structured framework, and the parameters inform where within the broad statutory range a sentence for a given offense should fall. This system gives the judge guidance while preserving the ability to tailor a sentence to the facts.

Aggravating factors

In setting a sentence, a military judge considers evidence in aggravation, which is information that tends to make the offense more serious …