Military Lawyers

Forfeitures of pay and allowances at a court-martial are calculated according to a set of rules that depend on the type of court-martial, whether the forfeiture is adjudged by the sentencing authority or imposed automatically by statute, and whether the member is in confinement. The numbers are not pulled from the air. They follow the Rules for Courts-Martial and the statutory provisions of the Uniform Code of Military Justice. To understand the calculation, it helps to separate the two distinct kinds of forfeiture that can apply to the same member.

Two kinds of forfeiture

A court-martial sentence can involve two separate forfeitures. The first is an adjudged forfeiture, which is part of the sentence the sentencing authority actually imposes under Rule for Courts-Martial 1003(b)(2). The second is a mandatory, or automatic, forfeiture under Article 58b of the UCMJ. These operate independently. An adjudged forfeiture is a discretionary punishment chosen by the court-martial. An automatic forfeiture is imposed by operation of law when certain sentence thresholds are met, regardless of whether the court-martial mentions forfeitures at all. A single case can involve one, the other, or both, and the calculation accounts for each.

Adjudged forfeitures and the two-thirds rule

An adjudged forfeiture can be stated as a forfeiture of all pay and allowances or as a forfeiture of a specific amount per month for a specific number of months. A central limit governs the calculation: forfeitures of more than two-thirds pay per month may be imposed only during periods of confinement. In other words, total forfeiture of all pay and allowances, or any forfeiture exceeding two-thirds of monthly pay, is permissible while the member is confined, but it cannot lawfully run during a period when the member is not confined. If the sentencing authority wants forfeitures to continue after confinement ends, those post-confinement forfeitures are capped at two-thirds pay per month, and the sentence must specify their duration and amount.

This shapes how a sentence is written. Where a sentence to forfeiture of all pay and allowances is adjudged, it runs until the member is discharged or returns to a duty status, whichever comes first, unless the sentencing authority expressly provides for reduced partial forfeitures after confinement and specifies how long they last and how much they take. The calculation therefore is sensitive to the member’s status over time.

The distinction between pay and allowances

The calculation also depends on whether …

It can, though the law does not treat media exposure as an automatic threat to a fair trial. When an alleged victim gives pretrial interviews, the concern is that the resulting publicity may reach prospective panel members, shape public and command opinion, or introduce sympathetic narratives that the rules of evidence would never allow at trial. Military courts take these concerns seriously, but they also recognize that publicity is common and that several tools exist to protect the accused without silencing anyone. The realistic answer is that such interviews can affect fairness, but whether they do, and what should be done about it, depends on the specific facts.

Why pretrial publicity raises fairness concerns

A court-martial, like any criminal trial, depends on an impartial factfinder who decides the case on the evidence presented in court. Pretrial interviews can complicate that in several ways. They may expose potential panel members to one-sided accounts before they ever enter the courtroom. They may circulate emotionally powerful details, such as personal anecdotes or characterizations of the accused, that would be inadmissible or tightly limited under the evidence rules. And in the military, where panel members are selected by a convening authority and serve within a command structure, widespread publicity can interact with the unique pressures of military life. The danger is not the publicity itself but the possibility that it reaches the people who will judge the case and influences them.

The accused’s right to an impartial panel

The right to an impartial panel is fundamental in a court-martial. The governing standard, drawn from civilian and military case law alike, is not whether panel members have heard anything about the case, but whether they can set aside any preexisting impressions and decide the case solely on the evidence. The Supreme Court’s decision in Sheppard v. Maxwell remains the touchstone for the principle that pervasive, prejudicial publicity can deprive a defendant of due process. Military courts apply the same core idea. Mere exposure to news coverage does not disqualify a panel member, but exposure that produces a fixed opinion the member cannot set aside does.

The tools that protect fairness

Military procedure provides several remedies, and the choice among them depends on the severity of the problem. The most important is voir dire, the questioning of prospective panel members. Through voir dire, counsel can probe what members have read or heard, whether they have formed …

After a court-martial returns findings of guilt, the proceeding moves to a separate sentencing phase governed by Rule for Courts-Martial (RCM) 1001. During that phase the government may offer evidence in aggravation, and a recurring question is whether a panel may consider misconduct that was never charged, and whether the accused is entitled to advance notice before such evidence comes in. The answer has two parts. Uncharged misconduct is admissible at sentencing only within narrow limits, and even when it is admissible, the rules and basic fairness contemplate that the accused will know what aggravation evidence the government intends to use.

The framework for aggravation evidence

The presentencing rules do not turn sentencing into a free-ranging inquiry into everything an accused has ever done wrong. Under RCM 1001(b)(4), trial counsel may present evidence of aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. The operative phrase is directly relating to or resulting from. This is a deliberately demanding standard, higher than the ordinary test of mere relevance that governs evidence on the merits.

The military appellate courts have repeatedly enforced that limit. The leading decisions establish two principal constraints on aggravation evidence under RCM 1001(b)(4). First, the evidence must be directly connected to a crime of which the accused was convicted; the rule does not open the door to evidence of bad character or uncharged misconduct in general. Second, even evidence that qualifies must still satisfy the balancing test of Military Rule of Evidence 403, under which a military judge may exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time.

When uncharged misconduct can qualify as aggravation

Against that backdrop, uncharged misconduct is not categorically barred, but it is admissible only when it is genuinely part of the circumstances of the convicted offense rather than separate bad acts. The classic example is a continuous course of conduct. Where the uncharged acts are closely connected in time, place, and type to the offense of conviction, and especially where they involve the same victim or the same scheme, they may be understood as directly relating to or resulting from that offense. In that situation the uncharged conduct is not being used to show that the accused is a bad person, but to show the full nature and impact of the very misconduct …

A civilian criminal diversion program lets a defendant avoid a conviction by completing conditions such as probation, counseling, community service, or restitution. When the program ends successfully, the charge is often dismissed and no conviction appears on the record. Service members frequently assume that resolving a civilian matter this way also resolves any military fallout. That assumption is wrong. Diversion controls what happens in the civilian courthouse. It does not control what a commander decides to do administratively.

Diversion Resolves the Civilian Case, Not the Military One

The military separation system runs on a different track from the criminal justice system, and the two are not bound together. Under Department of Defense Instruction 1332.14, which governs enlisted administrative separations, an acquittal or not-guilty finding, a conviction and punishment by a civilian or military court, or nonjudicial punishment does not preclude an administrative separation action based on the same conduct. The parallel instruction for officers, DoDI 1332.30, contains the same principle. In other words, the disposition of the criminal case, whatever it is, does not by itself stop the command from acting.

A diversion outcome falls outside even those listed dispositions. It is not an acquittal and not a conviction. It is a negotiated path that avoids adjudication of guilt. Because the regulation does not treat any criminal outcome as a bar to separation, a dismissal through diversion gives a service member even less protection than an acquittal would, and an acquittal is already not a shield against administrative action.

How a Diversion Can Still Trigger Separation Processing

A service member can be processed for separation for several reasons, including a pattern of misconduct, the commission of a serious offense, or a civilian conviction. When the basis is civilian conviction, completing diversion that ends in dismissal may remove that specific ground, because there is no conviction to point to. But commands rarely stop there. The same underlying conduct can support a separate basis such as commission of a serious offense or a pattern of misconduct, and those bases do not require a conviction at all.

This matters because of the standard of proof. An administrative separation board does not apply the criminal standard of proof beyond a reasonable doubt. Board members decide by majority vote whether the government has shown by a preponderance of the evidence, meaning more likely than not, that the respondent committed the misconduct. Evidence that was never …

When a Statement of Reasons contains factual errors, the response is not to ignore them or to assume the adjudicator will catch the mistake. The applicant must affirmatively respond, deny or correct the inaccurate allegations, and present evidence that establishes the true facts. The Statement of Reasons is the document that tells an applicant why eligibility for a clearance is being questioned, and it triggers a structured process with deadlines and rights. Factual inaccuracies are a legitimate and often strong basis for challenge, but only if the applicant acts within the process and meets the burden the rules impose.

What the Statement of Reasons is and why accuracy matters

A Statement of Reasons, commonly called an SOR, is the written notice that a clearance is in jeopardy. It lists specific allegations, each tied to one or more of the adjudicative guidelines that govern clearance eligibility under Security Executive Agent Directive 4, which sets out the thirteen guidelines covering concerns such as financial considerations, personal conduct, criminal conduct, and others. Each allegation is supposed to reflect accurate facts. When an allegation misstates a date, mischaracterizes an event, attributes conduct to the wrong person, relies on a debt already resolved, or otherwise gets the facts wrong, that error matters because the entire adjudication is built on those allegations. An inaccurate foundation can produce an unjust denial.

Respond within the deadline and address each allegation

The first and most important action is to respond in writing within the time allowed. For Department of Defense industrial cases handled through the Defense Office of Hearings and Appeals, an applicant generally has twenty days from receipt of the SOR to submit a written answer, admitting or denying each allegation paragraph by paragraph, and to indicate whether the applicant wants a hearing before an administrative judge or a decision on the written record. Missing the deadline can forfeit important rights. In the answer, the applicant should specifically deny each inaccurate allegation, explain precisely what the correct facts are, and reference the supporting documentation. A blanket denial is weaker than a targeted correction that shows exactly where the government went wrong.

Document the truth

Correcting factual inaccuracies is an evidence exercise. The applicant should gather and submit records that prove the accurate version of events. Depending on the allegation, this might include court records showing a charge was dismissed or expunged, account statements showing a debt was paid …

A board of inquiry, often called a BOI, is the administrative hearing that determines whether a commissioned officer should be involuntarily separated for cause, including for alleged sexual misconduct. Unlike a court-martial, a BOI is an administrative proceeding with limited tools to compel testimony. When a witness who is central to a sexual misconduct allegation refuses to appear, the board cannot simply force attendance, and it must decide how to proceed and what weight to give to evidence offered in place of live testimony. The way the board handles that refusal can significantly affect both the fairness of the hearing and the strength of the case against the officer.

A BOI cannot subpoena witnesses

The defining feature of this situation is that a board of inquiry has no subpoena power. It cannot compel a civilian witness to appear, and even military witnesses are not always made available. Military members may be ordered to attend by their command, but the board itself does not issue enforceable process, and a witness who declines to participate generally cannot be punished by the board for that refusal. This stands in sharp contrast to a court-martial, where compulsory process exists. The absence of subpoena power means that when a central witness refuses to appear, the board has to work with whatever other evidence the parties present.

Relaxed evidence rules let the case proceed without the witness

A board of inquiry is not bound by the strict rules of evidence that govern courts-martial. Hearsay is admissible, and the board may consider documentary evidence such as reports of investigation, sworn and unsworn statements, and summaries of what an absent witness said. As a result, the government can attempt to prove a sexual misconduct allegation through the investigative file and the witness’s prior statements even when the witness will not testify in person. This is a real risk for the respondent, because the board may end up relying heavily on one sided paper rather than on testimony that the respondent can confront and challenge in front of the board.

The cost of a refusal to the side that needs the witness

While the relaxed rules permit the board to receive substitute evidence, a witness’s refusal to appear is not cost free for the party relying on that witness. The respondent has the right to be present, to be represented, and to present a case, including the right to …

A service member who lies to an investigator can face a separate criminal charge even if the underlying matter never goes anywhere. The rank of the investigator does not change that. Whether the person asking the questions is a commissioned officer, a noncommissioned officer, or an enlisted agent of a military law-enforcement organization, a knowing false statement made in an official context can violate the Uniform Code of Military Justice (UCMJ). The treatment turns on the nature of the statement, the intent behind it, and whether the questioning followed the rules that govern military interrogation.

The governing offense

False official statements are addressed by Article 107 of the UCMJ. The offense reaches a person subject to the UCMJ who, with intent to deceive, signs a false official document knowing it to be false, or makes any other false official statement knowing it to be false. The statement does not have to be written. Verbal statements made during an investigation can qualify, and statements made to a military member carrying out a military duty fall within the article’s scope.

This is why the investigator’s status as enlisted does not insulate the speaker. What matters is that the statement was official, that it was false, and that the person making it knew it was false and intended to deceive. An enlisted investigator conducting an authorized inquiry is performing an official function, so a knowing lie told to that investigator can be just as chargeable as a lie told to an officer.

What makes a statement “official”

The word “official” is doing important work in Article 107. Courts treat a statement as official when it is made in the line of duty, when it bears a clear relationship to the speaker’s official responsibilities, or when it is made to a person, military or civilian, who is performing a military function such as an investigation. A statement to an enlisted investigator collecting facts about suspected misconduct generally fits because the investigator is performing an official duty and the statement relates to a matter of official concern.

By contrast, a casual remark with no official character is less likely to qualify. The analysis is fact-specific, but the central inquiry is whether the statement was connected to the official business of the military and made to someone acting in an official capacity.

Intent and knowledge are required

Article 107 is not a trap for honest mistakes …

When a service member fails to report as required, a unit cannot jump straight to a formal absence report. Unauthorized absence under Article 86 of the Uniform Code of Military Justice (UCMJ) is a status that must be properly established, and the early administrative steps a unit takes are what give later action a sound footing. Doing this correctly protects the member from an inaccurate record and protects the command from acting on a misunderstanding. This article walks through the procedural groundwork that ordinarily precedes a formal absence report.

Confirm that an unauthorized absence actually exists

The first step is verifying that the member is in fact absent without authority, not merely late or accounted for elsewhere. Article 86 requires that the member had a duty to be at a certain place at a certain time, knew of that duty, and was absent without authorization. So the unit must confirm there was a fixed report time or place, that the member was aware of it, and that no leave, pass, temporary duty, hospitalization, or other authorization explains the absence. A member who is on approved leave, in a medical facility, or otherwise lawfully elsewhere is not absent without authority, and treating that member as AWOL would be an error.

Establishing the inception of the absence is part of this step. The unit should pin down the exact date and time the member was first required to be present and failed to appear, because that moment marks the beginning of any unauthorized absence and drives much of what follows.

Make reasonable efforts to locate and account for the member

Before formalizing anything, the unit should attempt to contact the member and determine the reason for the absence. This typically includes trying known phone numbers and addresses, checking with the member’s supervisor and coworkers, and reviewing recent leave and duty records. The command should also rule out the possibility that the member is hospitalized, in civilian custody, or otherwise unable to report through no fault of their own. These inquiries serve two purposes. They may resolve the matter quickly if the member is found and accounted for, and they create a documented record showing the unit acted responsibly if the absence turns out to be genuine.

Document the absence contemporaneously

Accurate, timely documentation is the backbone of any later action. The unit records when the member was due, when the absence was …

In a drug prosecution under Article 112a of the UCMJ, the government often wants to place the accused at a particular location: a stash house, a known dealer’s residence, a shipping point, or a spot inconsistent with the accused’s account. GPS tracking data, whether pulled from a phone, a vehicle device, or an installed tracker, is a powerful way to do that. But the data is not admissible simply because it exists. Trial counsel must lay an evidentiary foundation that satisfies authentication before a military judge will let the members consider it. This article explains what that foundation requires.

The Governing Standard: Military Rule of Evidence 901

Authentication of GPS data is governed by Military Rule of Evidence 901, which mirrors Federal Rule of Evidence 901. The rule sets a deliberately modest threshold. The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This is a prima facie showing, not proof beyond a reasonable doubt and not even a preponderance determination by the judge. The judge decides only whether a reasonable member could find the data genuine; the ultimate weight is for the members.

Authentication is treated as a component of relevancy. If the data is not what the government says it is, it is not relevant, so the foundation question and the relevance question are intertwined. For GPS evidence, the proponent typically proceeds under two related provisions of Rule 901. One allows authentication through the distinctive characteristics of the item taken together with all the circumstances. The other, often the more important for machine-generated location records, allows authentication by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

Building the Foundation for the Device and the System

Because GPS data is generated by a system, the government must show that the system works and that it produced an accurate result. In practice that means establishing several things through testimony or documentation.

First, the source device must be identified and tied to the accused or to the relevant location. If the data comes from a smartphone, counsel must connect the phone to the accused. If it comes from a vehicle tracker, counsel must establish where and when the tracker was installed and on which vehicle. The link between the data and the person is what makes the …

Under Article 78 of the Uniform Code of Military Justice, the accessory after the fact offense, the government must prove that the accused knew a specific offense had been committed, and it must prove that knowledge, like every element, beyond a reasonable doubt. This knowledge element is often the most contested part of an Article 78 case, because assisting another person is rarely a crime unless the assister knew that person had committed an offense. This article explains the burden, what the knowledge element requires, and how the government tries to meet it.

The Elements of Article 78

Article 78 punishes one who, knowing that an offense punishable by the UCMJ has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. The elements are: that an offense punishable by the code was committed by a certain person; that the accused knew that person had committed the offense; that thereafter the accused received, comforted, or assisted the offender; and that the accused did so for the purpose of hindering or preventing apprehension, trial, or punishment.

The knowledge element sits at the center of the offense. Without it, helping another person is simply assistance, not a crime.

The Governing Burden: Beyond a Reasonable Doubt

In a court-martial the government bears the burden of proving every element beyond a reasonable doubt. That is the highest standard in American law, and it applies to the knowledge element of Article 78 just as it applies to the underlying offense and the assistance. The accused has no burden to prove a lack of knowledge. The government must affirmatively establish that the accused actually knew an offense had been committed, and it must do so to the satisfaction of the fact finder beyond a reasonable doubt.

This is a critical point of contrast with administrative proceedings, which use a preponderance standard. In a criminal Article 78 prosecution, mere probability that the accused knew is not enough. The knowledge must be proven to the same demanding degree as guilt itself.

What “Knew” Requires

The knowledge element demands actual knowledge that an offense was committed. General suspicion, rumor, or a vague sense that something might be wrong does not satisfy the element. The accused must have known that a person had in fact committed an offense punishable under the code.

At the same time, the law does not …