Military Lawyers

When a U.S. service member is accused of an offense on a base overseas, the question of who may prosecute is rarely simple. More than one sovereign can have a legitimate claim. The United States can assert authority over its own forces under the Uniform Code of Military Justice. The host nation can assert authority because the conduct occurred on its territory. The framework that sorts out these competing claims is the Status of Forces Agreement, or SOFA, that the United States has negotiated with the host country. Understanding how a SOFA allocates jurisdiction is the starting point for any analysis of an offense committed on a foreign installation where the host nation is involved.

Two Sovereigns, One Event

The core tension is that an act on a U.S. base abroad can violate both U.S. military law and the criminal law of the host nation at the same time. The base may be operated by U.S. forces, but the land remains the sovereign territory of the host country. This creates concurrent jurisdiction, where both nations technically have the power to prosecute. SOFAs exist to manage that overlap by deciding which government gets the first, or primary, right to exercise jurisdiction in a given category of case, while leaving the other government with a secondary right.

The NATO SOFA Model of Concurrent Jurisdiction

The most widely studied example is the NATO SOFA, which governs U.S. forces in many allied countries and serves as a template for understanding the broader pattern. Under that agreement, the fundamental concept is concurrent or shared jurisdiction. The sending state, meaning the United States for U.S. personnel, holds the primary right to exercise jurisdiction over offenses that arise out of the performance of official duty and over offenses committed by one member of the force against another member of the same force or its property. The receiving state, the host nation, holds the primary right over most other offenses committed within its territory.

This division produces a practical rule of thumb. Offenses tied to the member’s official duties, and offenses where both the accused and the victim are part of the U.S. force, tend to fall to the United States. Offenses that spill into the host nation’s community, that involve local victims, or that are unrelated to official duty tend to fall to the host nation’s primary jurisdiction. The location of the act on the installation matters, …

When a service member faces administrative separation for misconduct, the central question is often whether the conduct was intentional. A member may wish to introduce past mental health treatment records to show that a condition, rather than a deliberate choice, explains the behavior. Whether those records can be used this way during separation review depends on who holds the relevant privilege, how administrative boards handle evidence, and how the records actually bear on intent. In general, a respondent can use his or her own mental health records in support of a defense, but doing so involves trade offs and the records must be relevant to the question of intent rather than offered as a vague excuse.

Administrative boards apply relaxed evidence rules

An administrative separation board, including an officer board of inquiry, is an administrative proceeding, not a criminal trial. The strict rules of evidence that govern courts-martial do not apply in the same way. Relevant information that would help the board reach a fair result is generally admissible, and the board can consider documentary evidence, including records, that a court-martial might treat more restrictively. This relaxed posture works in the respondent’s favor when offering mental health records as mitigating or explanatory evidence, because the respondent does not face the same evidentiary hurdles that would apply at a court-martial.

There is an important exception, however. Even administrative boards respect recognized privileges. So the question of whether mental health records can be used turns less on technical evidence rules and more on privilege and relevance.

The respondent holds the privilege and can waive it

Communications between a patient and a psychotherapist are protected by a recognized privilege. In the military justice context, Military Rule of Evidence 513 establishes a psychotherapist patient privilege that allows a patient to refuse to disclose, and to prevent others from disclosing, confidential communications made for the purpose of diagnosis or treatment of a mental or emotional condition. The privilege belongs to the patient.

Because the member is the holder of the privilege, the member can choose to waive it and disclose his or her own records. When a respondent wants to use past treatment records to rebut a claim of intentional misconduct, the respondent is generally free to do so, since the respondent is voluntarily revealing his or her own protected information. This is different from a situation where one party tries to compel disclosure of …

Article 88 of the UCMJ punishes contemptuous words by a commissioned officer against certain high officials. Officers sometimes assume that because a statement was made while off duty, out of uniform, away from the installation, or in a private setting, it falls outside the reach of military law. That assumption misreads the article. This piece explains why the location and duty status of the speaker usually do not save the statement, and where the genuine limits of Article 88 actually lie.

What Article 88 Covers

Article 88 provides that any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present shall be punished as a court-martial may direct. Two features stand out immediately. The article applies only to commissioned officers, so enlisted members cannot be charged under it. And it protects a closed list of officials and institutions, not government generally and not individual members of Congress or a state legislature, who are not covered as individuals.

To obtain a conviction, the government must prove that the accused was a commissioned officer, that the accused used certain words against an official or legislature named in the article, that by some act of the accused the words came to the knowledge of a person other than the accused, and that the words were contemptuous either in themselves or by virtue of the circumstances in which they were used.

Why Off Duty and Off Base Does Not Create Immunity

The element most relevant to the off-duty, off-base question is the capacity in which the words were spoken. Under the governing explanation of the offense, it is immaterial whether the contemptuous words were used in an official or a private capacity. That single principle answers much of the question. The article does not contain an exception for private speech, off-duty speech, or speech that occurs away from a military installation. An officer remains subject to the UCMJ at all times, and contemptuous words against a covered official can be charged regardless of where or when they were uttered.

There is one geographic qualifier built into the statute, but it applies narrowly. For words against a Governor or a state legislature, the officer must have been …

Article 99 of the Uniform Code of Military Justice, codified at 10 U.S.C. 899, is titled misbehavior before the enemy. It is one of the most serious offenses in military law because it can carry the death penalty. The article does not contain a single broad prohibition. Instead it lists several distinct forms of misconduct that occur when a service member is before or in the presence of the enemy. A refusal to engage in offensive action during an active operation does not fit neatly under one label, so the proper analysis is to identify which specific clause of Article 99 the conduct actually matches.

The clause that most directly addresses refusal to engage

The clause most relevant to a refusal to engage offensive action is the prohibition on willfully failing to do one’s utmost. Article 99 punishes a person who, before or in the presence of the enemy, willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing that it is the member’s duty to encounter, engage, capture, or destroy. The key words are willfully and utmost. The government must prove the member acted intentionally, not merely that the operation fell short or that the member made a tactical judgment that turned out poorly. A genuine failure of nerve, a reasonable tactical decision, or an inability caused by circumstances outside the member’s control is different from a willful refusal to apply one’s best effort against the enemy.

This is the clause a command would most plausibly use when an individual declines to press an offensive action while the unit is engaged or about to engage the enemy. The offense is framed around the member’s duty in that moment and the willful character of the failure to perform it.

Other clauses that can overlap

Depending on the facts, a refusal during an active operation can also implicate other parts of Article 99. The article separately punishes running away, which means an unauthorized departure from the place of duty to avoid combat. It punishes shamefully abandoning or surrendering a command, unit, place, or military property that it was the member’s duty to defend. It punishes cowardly conduct, which is misconduct or failure to act that is caused by fear. And it punishes endangering the safety of a command, unit, or other element through disobedience, neglect, or intentional misconduct.

These …

A summary court-martial is the lowest tier of court-martial under the Uniform Code of Military Justice (UCMJ), authorized by Article 20, codified at 10 U.S.C. section 820, and governed in detail by Rule for Courts-Martial (RCM) 1301. It is unusual among courts-martial because a single officer, the summary court-martial officer, plays the combined roles of judge, fact-finder, and sentencing authority. A common question is whether a field grade officer presiding in that role can lawfully impose restriction and forfeiture of pay. The answer is yes, both punishments are within a summary court-martial’s authority, but the lawfulness depends on the limits RCM 1301 places on the sentence and on the accused’s grade, not on the rank of the officer presiding. This article unpacks that distinction.

Who presides and where rank fits in

A summary court-martial is conducted by one commissioned officer detailed to the case. Service practice generally calls for an officer of suitable maturity and grade, and a field grade officer, meaning a major or lieutenant colonel in the Army, Air Force, Marine Corps, and Space Force, or a lieutenant commander or commander in the Navy and Coast Guard, is well within the contemplated profile. But it is important to be precise about what the officer’s rank does and does not determine. The summary court-martial officer’s punishment authority comes from the statute and RCM 1301, which fix the ceiling on punishment for this type of court. The officer’s field grade status does not expand that ceiling, and a lower-grade detailed officer would have the same sentencing limits. So the real question is not whether a field grade officer in particular may impose restriction and forfeiture, but whether restriction and forfeiture are among the punishments a summary court-martial may adjudge at all, and within what limits.

The punishments a summary court-martial may impose

RCM 1301 sets the maximum punishment a summary court-martial may adjudge, and the limits turn in part on the accused’s pay grade. The available punishments include reduction in grade, forfeiture of pay, and a confinement-type punishment that may take the form of confinement, hard labor without confinement, or restriction in lieu of those. For an accused above the fourth enlisted pay grade, the summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next inferior pay grade. For an accused in the fourth enlisted pay grade or below, the fuller range applies, including …

Article 89 of the Uniform Code of Military Justice addresses disrespect toward a superior commissioned officer. Most people assume disrespect means saying something insulting, but the offense is broader than spoken words. A recurring question is whether conduct without any speech, a gesture, a facial expression, or a refusal to render a customary courtesy, can support a charge under Article 89. The answer is yes. The offense expressly reaches acts and demeanor, so a nonverbal gesture, standing alone, can constitute disrespect when the surrounding circumstances make its disrespectful meaning clear.

What Article 89 Covers

Article 89 makes it an offense to behave with disrespect toward a superior commissioned officer. The prosecution must prove that the accused did or omitted certain acts, or used certain language, toward or about a certain commissioned officer; that the officer was the superior commissioned officer of the accused; that the accused then knew that the officer was the accused’s superior commissioned officer; and that, under the circumstances, the behavior or language was disrespectful to that officer.

The structure of these elements is the key to the question. The offense is framed in terms of acts or omissions as well as language. Disrespect is not confined to what a service member says. It includes how a service member behaves. That is why nonverbal conduct falls within the statute’s reach.

Disrespect by Acts and Demeanor

Disrespectful behavior is conduct that detracts from the respect due to the authority and the person of a superior commissioned officer. The Manual for Courts-Martial explains that disrespect may be shown by acts or by language, however expressed. Recognized examples of disrespect by acts include neglecting the customary salute and showing a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness toward the superior officer.

Demeanor matters too. A service member’s tone, gestures, or general bearing in the presence of a superior can be disrespectful even if no words are spoken. A contemptuous facial expression, a dismissive or insolent gesture, turning one’s back in a deliberately disdainful manner, or pointedly refusing to acknowledge a superior can all communicate disrespect. Because the offense focuses on conduct that detracts from the respect due the officer, the absence of words is not a defense when the conduct itself conveys the disrespect.

The Importance of Context

A nonverbal gesture alone can constitute the offense, but the surrounding circumstances are decisive. The elements require that, under …

A military judge controls the docket of a court-martial, and one of the most consequential docket decisions is whether to grant a continuance when a party asks for more time. When that request is denied and the trial proceeds to conviction, the accused may want to attack the result on appeal. The short answer is that a denial of a continuance can support reversal, but rarely does so by itself. The denial must amount to an abuse of discretion, and the error must have prejudiced the accused. This article explains how military appellate courts evaluate that claim and why a continuance denial standing alone is a steep hill to climb.

The governing standard: abuse of discretion

A military judge’s ruling on a continuance request is reviewed for abuse of discretion, not reviewed fresh by the appellate court. This deferential standard reflects the trial judge’s superior position to manage the case, assess witness availability, and weigh competing demands on the court’s calendar.

A military judge abuses discretion in one of three ways. First, when the findings of fact that support the ruling are not supported by the record. Second, when the judge applies an incorrect legal principle. Third, when the application of the correct legal principle to the facts is clearly unreasonable. Put differently, the ruling must be arbitrary, clearly untenable, or one that denies the moving party a substantial right. A reasonable scheduling decision that an appellate judge might have decided differently is not enough.

The Miller factors

When an accused argues that a denial was unreasonable, the Court of Appeals for the Armed Forces (CAAF) often turns to the multi-factor framework drawn from United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). The Miller factors are a non-exclusive checklist that guide the inquiry into whether the denial was arbitrary. They include surprise, the nature of the evidence or testimony at issue, the timeliness of the request, the availability of the witness or evidence, the possibility of substitute testimony or evidence, the length of the requested continuance, prejudice to the opposing party, whether the moving party had already received prior continuances, the good faith and reasonable diligence of the moving party, prior notice, and the possible impact on the verdict.

No single factor controls. A judge who weighs these considerations and reaches a defensible conclusion has acted within discretion even if the request had genuine merit. A judge who ignores …

Unlawful detention is a distinctly military offense. It punishes a service member who has been entrusted with the power to apprehend, arrest, or confine another person and who misuses that power. Because the offense involves the abuse of authority over another person’s liberty, the question of how much punishment a court-martial may impose, and how that ceiling is set, is important both to the accused and to anyone studying how military justice draws its sentencing limits. The maximum authorized punishment for this offense is a dishonorable discharge, total forfeiture of all pay and allowances, and confinement for three years. How that figure comes to exist is a story about the structure of the Uniform Code of Military Justice and the President’s role in fixing maximum punishments.

The offense itself

Unlawful detention is charged under Article 97 of the UCMJ. The article reaches any person subject to the code who, except as provided by law, apprehends, arrests, or confines another person. The elements a court-martial must find are that the accused apprehended, arrested, or confined a certain person, and that the accused unlawfully exercised authority to do so.

Two features of the offense shape its seriousness. First, it is an offense of misused authority. Article 97 applies to those empowered to restrain others, such as members performing law enforcement, guard, or command functions, who then exercise that power without legal justification. Second, the restraint must be against the will of the person restrained, though the government does not have to prove that physical force was used. The wrong is the unlawful deprivation of another person’s liberty by someone cloaked with military authority, and the analysis turns on whether the accused had a reasonable basis to believe the restraint was lawful.

The maximum punishment

For unlawful detention under Article 97, the maximum punishment a general court-martial may adjudge is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years. A dishonorable discharge is the most severe form of separation, reserved for serious misconduct and carrying lasting consequences for benefits and reputation. Total forfeiture strips the member of pay and allowances. The three-year confinement ceiling places the offense in the middle range of military crimes, more serious than minor disciplinary infractions but well below offenses such as the most serious assaults or sexual offenses.

It is important to read that ceiling correctly. It is a maximum, not a mandatory …

A guilty plea in a court-martial is not locked in the moment an accused enters it. The Rules for Courts-Martial allow withdrawal, but the rules that govern when and how depend heavily on timing. The procedure for pulling back a plea before the military judge has accepted it is very different from the procedure after acceptance, and different again after sentence is announced. When the withdrawal happens in the middle of trial, the controlling question is which of those stages the proceeding has reached.

The plea inquiry that precedes any plea

Before a guilty plea ever takes effect, the military judge conducts a providence inquiry under Rule for Courts-Martial 910. The judge may not accept a plea of guilty without an inquiry that satisfies the judge there is a factual basis for the plea. This is a personal dialogue between the judge and the accused. The judge explains the elements of each offense, questions the accused about the conduct, and confirms that the accused understands the rights being given up and genuinely wishes to plead guilty. A discussion between counsel and the judge about legal theory is no substitute for the required exchange with the accused. The plea is provident only when the accused’s own answers establish that the conduct was criminal and the plea is knowing and voluntary. This inquiry matters to withdrawal because it defines the moment of acceptance, which is the pivot point for the procedures that follow.

Withdrawal before acceptance: a matter of right

If the accused seeks to withdraw a guilty plea before the military judge has accepted it, the withdrawal is available as a matter of right. At that early point the plea has not yet become the basis for findings, so an accused who changes course may simply withdraw it, and the case proceeds as a contested matter. This is the most forgiving stage, and it commonly arises when the providence inquiry itself reveals a problem. If during the colloquy the accused says something inconsistent with guilt, raises a defense, or otherwise casts doubt on the factual basis, the judge cannot accept the plea, and the matter resolves into either a clarified plea or a not guilty plea without any showing of cause from the accused.

Withdrawal after acceptance but before sentence: good cause

Once the military judge has accepted the plea, the standard tightens. After acceptance, but before the sentence is announced, …

Unauthorized absence is one of the most common military offenses, and many cases involve not a single long absence but a string of brief ones: a service member who fails to report a few times, returns on their own, and accumulates several minor incidents. A recurring question is whether those short absences, individually minor, can be combined to support a finding that the member has engaged in a pattern of misconduct. The answer is yes. While each absence is charged and proven on its own, the accumulation of repeated absences is precisely what commanders and adjudicators rely on to characterize a member as a pattern-of-misconduct problem, with significant consequences for both disciplinary and administrative action.

The underlying offense: Article 86

Unauthorized absence is prohibited by Article 86 of the Uniform Code of Military Justice (UCMJ), which covers failure to go to an appointed place of duty, going from that place, and absence from a unit, organization, or place of duty without authority. The Army and Air Force commonly use the term absence without leave (AWOL), while the Navy and Marine Corps use unauthorized absence (UA). The offense does not require any minimum length; an absence of a few hours can violate Article 86. Each separate absence is a separate offense, proven by showing that the member was absent, that the absence was without authority, and the inception and termination of the absence.

Because each incident stands on its own, multiple short absences are typically charged as multiple specifications rather than as a single combined offense. The “pattern” does not change the elements of any one offense. Instead, the repetition becomes legally meaningful in how the conduct is characterized and addressed.

Where “pattern of misconduct” actually matters

The phrase “pattern of misconduct” is most precisely a basis for administrative separation, not a freestanding criminal charge. Under Department of Defense and service separation regulations, a pattern of misconduct is a recognized ground for involuntary administrative separation, and it generally requires a record of discreditable involvement, often shown by repeated minor offenses or a record of disciplinary infractions. A series of short unauthorized absences fits this basis well precisely because it shows recurring failure to conform to the most basic military duty of being present for duty.

This is a critical distinction. A commander does not need a court-martial conviction to initiate administrative separation for a pattern of misconduct. Substantiated misconduct, including documented …