Military Lawyers

Article 87 of the Uniform Code of Military Justice covers missing movement, the offense of failing to be present when a ship, aircraft, or unit moves out as scheduled. The article recognizes two different mental states a service member can have when this happens. One is design, meaning the member intended to miss the movement. The other is neglect. The phrase “through neglect” is what separates a careless service member from one who deliberately stayed behind, and that distinction shapes both whether the offense is proved and how severely it is punished.

Where “Through Neglect” Fits in the Offense

Before reaching the mental state, the government must establish the basic structure of the offense. It 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; and that the accused actually missed that movement. Only after those facts are in place does the question of design or neglect come into play. Knowledge of the movement is a separate requirement. Neglect describes the failure to be there once the member already knew the movement was coming.

A Definition of “Through Neglect”

Neglect, in this context, means a failure to take the measures that were reasonable under the circumstances to ensure the member would be present for the required movement. Put differently, it is a failure to exercise due care. The member did not set out to miss the movement, but did not act with the attention a reasonable service member would have used to make sure of being there.

Neglect can also take the form of acting without adequate regard for the likely consequences. A classic example is a member who travels so far from the departure point, or cuts the timing so close, that returning on schedule becomes unlikely. The member may have genuinely intended to make it back. But choosing a course of action that a reasonable person would recognize as risking the movement is exactly the kind of careless conduct the neglect theory captures.

Neglect Compared to Design

The contrast with design is the heart of Article 87’s two-tier structure. Design means a purposeful, intentional avoidance of the movement. The member wanted to miss it and acted to bring that result about. Neglect requires no such intent. It rests instead on carelessness, a failure to exercise due care that resulted in …

Few events in a court-martial are more alarming to the defense than learning that protected material, such as attorney-client communications or defense work product, has reached the government’s prosecutors. An inadvertent disclosure can occur through a misdirected email, a discovery production that was not properly screened, a shared electronic folder, or a confiscated device that was not filtered before review. The good news is that mistaken disclosure does not automatically forfeit the protection, and military courts have a range of remedies to address the harm. The right remedy depends on what was disclosed, how it happened, how promptly it was addressed, and how much the exposure threatens the fairness of the proceeding.

The privileges at stake

Two distinct protections are usually involved. The attorney-client privilege shields confidential communications between the accused and defense counsel made for the purpose of obtaining legal advice. The work-product doctrine protects materials prepared by counsel in anticipation of litigation, including legal theories, mental impressions, and trial strategy. In the military, these protections are recognized through the Military Rules of Evidence and the broader body of privilege law, with Military Rule of Evidence 502 addressing the lawyer-client privilege. Exposure of strategy and impressions is especially dangerous because, unlike a discrete fact, a roadmap of the defense cannot be unlearned by the prosecutors who saw it.

Inadvertent disclosure does not automatically waive privilege

A foundational principle is that an accidental disclosure does not necessarily waive the privilege. Drawing on the standard reflected in Federal Rule of Evidence 502 and parallel military practice, an inadvertent disclosure generally is not a waiver where the holder of the privilege took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error once it was discovered. This means the defense should act immediately upon learning of the disclosure: notify opposing counsel, assert the privilege in writing, and demand return or sequestration of the material. Equally important, the law rejects automatic subject-matter waiver for inadvertent disclosures, so a single mistaken document ordinarily does not open the door to all related communications. Subject-matter waiver is generally reserved for situations where a party intentionally and unfairly uses privileged material as a sword.

Returning, sequestering, and the claw-back process

The first practical remedy is recovery of the material. Upon notice of an inadvertent disclosure, the receiving party is typically obligated to return, sequester, or destroy the material and any copies, and to …

Closing argument is the moment a prosecutor draws the evidence together and asks the panel to convict. To make a point land, trial counsel sometimes reaches outside the courtroom for a comparison: a reference to a famous criminal case, a well-known public figure, an everyday civilian situation, or a familiar story meant to illustrate how the panel should view the accused. These civilian analogies are not categorically forbidden, but they sit close to several lines that military appellate courts have drawn firmly. Understanding where those lines fall is essential for both the prosecutor who wants a clean record and the defense counsel deciding whether to object.

The basic rule: argue the evidence, not outside material

The governing principle is straightforward. Trial counsel is entitled to argue the evidence of record and all reasonable inferences fairly derived from that evidence. What trial counsel may not do is inject irrelevant matters into argument, including personal opinions and facts not in evidence. A civilian analogy becomes a problem precisely when it smuggles in something that is not in the record or that diverts the panel from the evidence to an emotional or extraneous comparison.

An analogy used purely to explain a legal concept is on safer ground than one used to characterize the accused. Telling a panel that circumstantial evidence works the way it does when you wake to find snow on the ground and infer it snowed overnight is a classic illustration of inference, and courts have long tolerated that kind of common-experience comparison because it clarifies reasoning rather than supplying new facts. The danger zone is the analogy that compares the accused, the case, or the witnesses to outside people and events in a way calculated to inflame or to borrow credibility the record does not support.

Comparisons to notorious figures and other cases

The clearest restriction comes from the line of authority addressing comparisons between the accused and well-known public personalities or unrelated criminal matters. The Court of Appeals for the Armed Forces has condemned a findings argument in which trial counsel offered her personal views, disparaged the accused and his counsel, and drew parallels between the accused’s case and the legal problems of various entertainers and public religious figures. Those comments were held to constitute prosecutorial misconduct that prejudiced the accused.

The reasoning is instructive. Comparing an accused to a celebrity who was widely believed to have committed a …

When a service member is suspected of shading the truth about official duties during a security clearance investigation, the government rarely charges the lie itself as the whole case. The charge that usually follows is a false official statement under Article 107 of the Uniform Code of Military Justice. Understanding the prosecution’s burden begins with recognizing that Article 107 is not a strict-liability offense. The government must prove a culpable state of mind, and that mental element is where many clearance-related cases are won or lost.

The statutory mental element under Article 107

Article 107 punishes any person subject to the UCMJ who, with intent to deceive, signs a false record or makes any other false official statement knowing it to be false. To convict, the prosecution must prove four elements beyond a reasonable doubt: that the accused signed an official document or made an official statement, that the document or statement was false in whole or in part, that the accused knew it was false when made, and that it was made with the intent to deceive.

Two of those four elements are mental. Knowledge of falsity is one. Intent to deceive is the other. In a clearance setting, the document is often a Standard Form 86 questionnaire, a written response to an investigator, or a sworn interview with a background investigator or security officer. The form being official, or the interview being part of an official investigation, satisfies the first element. The real fight is over what the accused was thinking.

What intent to deceive actually requires

Intent to deceive means a purpose to mislead, to cause another to believe something untrue, or to cheat or trick a government function. It is more than carelessness and more than being wrong. A service member who genuinely forgets a long-ago incident, who misreads an ambiguous question on a questionnaire, or who gives an incomplete answer because of an honest misunderstanding of what was being asked does not act with intent to deceive. The government cannot satisfy its burden by showing only that the answer turned out to be inaccurate.

This is why the difference between an innocent omission and a deliberate concealment matters so much in clearance cases. Forgetting to list a financial obligation is not the same as actively hiding it. Misunderstanding whether a sealed or expunged matter must be reported is not the same as lying about its …

A promotion board reviews each eligible officer’s record as a complete file. When a service member has previously submitted a rebuttal, a memorandum to the board president, or other matters intended to explain or contest adverse information, those documents are meant to travel with the file. If a rebuttal narrative is omitted, the board may act on an incomplete and one-sided record. Military attorneys treat this as a correctable error and pursue specific administrative remedies. This article explains how counsel responds and why the sequence of steps matters.

Why an omitted rebuttal narrative is a serious problem

Promotion boards see what is in the file. If an adverse document, such as a relief-for-cause evaluation, a referred report, or a reprimand, is present but the officer’s authorized rebuttal is missing, the board considers the negative material without the context the officer was entitled to provide. The result can be a non-selection that rests on a materially incomplete record. The harm is not merely that the officer was passed over; it is that the board never saw the full picture the regulations contemplate.

Counsel’s first task is therefore to characterize the problem accurately. There is a meaningful difference between a rebuttal that was submitted late, and one that was timely submitted but never uploaded or filed in the board file. That distinction drives which remedy is available.

Step one: identify and document the omission

A military attorney begins by establishing exactly what was missing and proving that the officer had properly submitted it. This means gathering the original rebuttal, the transmittal or filing receipts, dates of submission, and any acknowledgments. The goal is to show that the document existed, was timely, and should have been in the file the board reviewed. Counsel will also confirm whether the document belonged in the performance file, the board file, or both, because filing rules differ by document type and service.

Step two: pursue a special selection board where the error qualifies

The principal remedy for a material error in the record considered by a promotion board is a special selection board, sometimes called an SSB or, in some contexts, a special selection review board. A special selection board reconsiders the officer as though the corrected record had been before the original board. It is the mechanism designed precisely for situations where the board acted on a record that contained a material error or omission, or …

Corrective training is one of the most routine tools a unit leader uses, and it usually happens informally, without paperwork and without a lawyer anywhere in sight. That is by design. Corrective training is meant to be a leadership measure, not a legal action, so the involvement of judge advocates is the exception rather than the rule. But the absence of formal documentation does not make corrective training a no-law zone. There are real limits on what corrective training can be, and when leaders push past those limits, the question of legal advice becomes important.

What corrective training is and what it is not

Corrective training is instruction or training given to a service member to fix a specific performance or conduct deficiency. Under the governing personnel policy, the training must be directly related to the deficiency it is meant to correct and must be oriented toward improving the member’s performance in the problem area. If a soldier is consistently late to formation, additional instruction on time management or accountability is reasonably related. Ordering that same soldier to clean the orderly room after hours is not, because cleaning has nothing to do with correcting lateness, and that kind of mismatched tasking is exactly what the rules treat as improper.

Crucially, corrective training is not punishment. It should not be confused with extra duty imposed as nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). The policy specifically cautions that training and instruction may not be used in an oppressive manner or to evade the procedural safeguards that apply to nonjudicial punishment. In other words, a leader cannot dress up punishment as training to avoid the rights and process that Article 15 would require. Once corrective training stops being genuine instruction tied to a deficiency and becomes a way to impose a penalty, it has crossed into territory the rules forbid.

Why lawyers are usually not consulted for routine corrective training

Because corrective training is a normal leadership function, commanders and noncommissioned officers are expected to administer it on their own judgment. There is no requirement that a judge advocate review or approve corrective training, and especially not when it is handled informally without any record. The system relies on leaders knowing and following the basic rules: keep the training related to the deficiency, keep it non-oppressive, and do not use it as a substitute for punishment. …

Article 31 of the Uniform Code of Military Justice (UCMJ) gives service members protection against self-incrimination that is in some respects broader than the civilian Miranda warning. A frequent and important question is whether those protections still apply when the person doing the questioning is a civilian rather than a uniformed investigator. The answer is that Article 31 can apply to civilian questioners, but not always. Whether the warning requirement attaches depends on the civilian’s relationship to the military investigation and the capacity in which the questioning occurs.

What Article 31 protects

Article 31(b) requires that before questioning a person suspected of an offense, the questioner must inform the person of the nature of the accusation, advise that the person does not have to make any statement, and warn that any statement may be used against the person at trial. Article 31 also prohibits compelling a person to incriminate themselves and bars coercion or unlawful inducement of statements. The remedy for a violation is generally that the statement may be suppressed and kept out of evidence.

Unlike the civilian rule, which is tied to custodial interrogation by law enforcement, Article 31(b) on its face applies broadly to questioning by persons subject to the Code. But courts have not read it to require a warning every time anyone asks a service member a question. Instead, military appellate courts have built a framework to identify when the protection is actually triggered.

The general rule for who must warn

The warning requirement applies when the questioner is acting in an official law enforcement or disciplinary capacity, or could reasonably be perceived by the suspect to be doing so. This grew out of the recognition that Article 31 was meant to counter the pressure a service member feels when questioned by someone whose military position carries authority. Casual questioning that lacks that official, authority-laden character does not trigger the warning, even when the questioner is in the military.

The analysis looks at all the facts and circumstances at the time of the interview to determine whether the questioner was acting, or could reasonably be considered to be acting, in an official law enforcement or disciplinary capacity, with the suspect’s reasonable perception judged from the standpoint of a reasonable person in the suspect’s position.

When a civilian investigator triggers Article 31

A civilian is not automatically outside Article 31. Military courts have applied the warning …

Solicitation in the military justice system is the offense of advising, encouraging, or requesting another person to commit an offense. A natural question is whether solicitation can attach to conduct that sits at the intersection of two different bodies of rules: the administrative ethics standards that govern federal and military personnel, and the criminal prohibitions of the Uniform Code of Military Justice. In other words, if a service member urges someone to do something that would both breach the ethics rules and amount to a crime, can that urging itself be charged as solicitation. The answer requires separating two distinct solicitation theories under military law, because they reach very different conduct.

Two Distinct Solicitation Theories

Military law contains a specific solicitation statute, Article 82, which is divided into two subsections that operate differently. The difference is central to this question.

Article 82 has a broad reach and an enhanced subset. Subsection (a) criminalizes soliciting or advising another person to commit any offense under the Code, other than the offenses singled out in subsection (b). Subsection (b) addresses the gravest offenses, soliciting or advising desertion, mutiny, misbehavior before the enemy, or sedition, and carries enhanced punishment. To convict under Article 82, the government must prove that the accused solicited or advised another to commit an offense and did so with the intent that the offense be committed. Under subsection (b), if the solicited offense is actually attempted or committed, the solicitor can be punished as if guilty of the underlying offense. What Article 82 does not reach is a request to violate an ethics rule that has no criminal counterpart, because the thing solicited must itself be an offense under the Code.

This structure means solicitation can attach to a wide range of military offenses. Under subsection (a), a service member who urges another to commit a chargeable military offense can be prosecuted for the solicitation even though the conduct solicited is not one of the four gravest offenses singled out in subsection (b). The general article remains available in some circumstances, but Article 82(a) itself supplies the principal basis for charging solicitation of offenses such as wrongful appropriation or dereliction.

The Key Requirement: The Solicited Act Must Be a Criminal Offense

Whether solicitation applies to conduct that also violates ethics rules turns on whether the conduct solicited is itself a punishable offense, not merely an administrative infraction. Solicitation is derivative; …

Unlawful command influence (UCI) is often called the mortal enemy of military justice because it strikes at the fairness the system depends on. Most discussion of UCI focuses on its effect at trial, on court members, or on witnesses. But the problem can begin much earlier, during the initial fact-finding that precedes any formal charge. Understanding what counts as UCI at that early stage helps commanders avoid it and helps an accused recognize when the foundation of a case may already be tainted.

The statutory basis

The prohibition comes from Article 37 of the Uniform Code of Military Justice (UCMJ). In its current form, after amendments enacted in the National Defense Authorization Act for Fiscal Year 2020, Article 37 bars any person subject to the Code from attempting to coerce or, by unauthorized means, influence the action of a court-martial or the exercise of professional judgment by trial counsel or defense counsel, among other protections. Congress also added a punitive article, Article 131c, which makes UCI a chargeable offense in appropriate cases. Together these provisions reflect that improper command pressure can corrupt the process at multiple points.

Why the early stage matters

Initial investigative fact-finding includes the period when a command first looks into a possible offense, gathers statements, and decides whether and how to proceed. Even though no court-martial exists yet, decisions made here shape everything that follows. If a commander pressures investigators to reach a particular conclusion, leans on potential witnesses to slant their accounts, or signals that a favored outcome is expected, the resulting record is distorted before the formal machinery ever starts. UCI at this stage is dangerous precisely because it is hard to see later, when the tainted statements and slanted findings have hardened into the case file.

Conduct that can constitute UCI in fact-finding

Several categories of conduct can amount to unlawful influence during early fact-finding. Pressuring an investigating officer or fact-finder to reach a predetermined result, rather than to investigate thoroughly and impartially, undermines the neutrality the process requires. Discouraging members from cooperating with the defense, or suggesting that those who give favorable statements about a suspect will face disapproval, interferes with access to evidence. Telling potential witnesses what they should say, or implying that a particular version of events is expected, contaminates testimony at its source. Public statements by a senior leader announcing how cases like this should come out can create …

Article 86 of the Uniform Code of Military Justice covers unauthorized absence, commonly described as absence without leave. 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 remains absent from a unit, organization, or place of duty where the member is required to be. Because the article is built around exact times, when a duty starts, when an absence begins, and when it ends, questions about how to measure time naturally arise. One such question is whether time zone differences are taken into account when determining whether an absence occurred and how long it lasted. The answer is yes in a practical sense: the times that matter are tied to the location and the schedule the member was actually required to meet, and a difference in time zones is simply part of correctly identifying those times.

Why Time Is the Core of Article 86

Unauthorized absence is fundamentally a question of clock and place. To prove a failure to go to an appointed place of duty, the government must show that a competent authority appointed a specific time and place of duty, that the accused knew of the requirement, and that the accused, without authority, failed to be there at the appointed time. For a longer absence, the government must establish when the unauthorized absence began and when it ended. The duration is not a mere detail. The length of an unauthorized absence is the essential factor that determines the permissible punishment, because longer absences expose the member to more serious consequences. Getting the start and end times right, and therefore getting any time zone questions right, directly affects both guilt and sentencing.

The Reference Point Is the Required Duty, Not the Clock on the Member’s Wrist

The appointed time of duty is fixed by the authority that set it and by the location where the duty must be performed. If a member is ordered to report at a unit in a particular place at a particular hour, the relevant moment is that hour in that location’s time. A member who is traveling, who crossed time zones, or who misread a schedule does not get to substitute the time at some other location. The obligation is to be present where required, when required, measured in the time governing that duty point. This is …