Military Lawyers

The short answer is that physical assistance is not required. Article 78 of the UCMJ, which defines the offense of accessory after the fact, can be satisfied by verbal acts of concealment as well as by physical help. The statute reaches any conduct that receives, comforts, or assists an offender for the purpose of hindering apprehension, trial, or punishment, and that conduct does not have to be a physical act such as hiding a person or moving evidence. Lying to investigators, giving a false alibi, warning an offender, or otherwise using words to shield someone can supply the assistance element. Understanding why that is so requires looking carefully at what Article 78 actually requires.

What Article 78 is

Article 78, codified at 10 U.S.C. 878, makes it an offense to be an accessory after the fact. Unlike a principal, who commits or aids the underlying crime, an accessory after the fact becomes involved only after the offense is complete. The wrongdoing lies in helping the offender escape the consequences of a crime the accessory knows has already been committed.

The four elements

A conviction under Article 78 requires the government to prove four elements beyond a reasonable doubt.

First, that an offense punishable by the UCMJ was committed by a certain person. The principal offense must actually have occurred, although the principal need not have been charged or convicted for the accessory to be guilty.

Second, that the accused knew that the person had committed that offense. This is a knowledge requirement, and it is significant.

Third, that thereafter the accused received, comforted, or assisted the offender. This is the conduct element at the center of the present question.

Fourth, that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. This is the specific intent that gives the offense its character.

Why verbal concealment satisfies the assistance element

The third element uses the words “received, comforted, or assisted.” None of those words is limited to physical action. Assistance under Article 78 is not confined to acts designed to effect the escape or concealment of the principal. It also includes acts intended to conceal the offense itself. Spoken or written conduct can do exactly that.

Consider the common scenarios. A service member who, knowing a fellow member committed an assault, tells investigators that the offender was somewhere else at the time …

When a misconduct finding that blocked a promotion is later overturned, the service member is often left with a record that no longer reflects the truth: the adverse action is gone, but the missed promotion remains. The law provides several avenues to fix this, but the service member usually has to pursue them affirmatively. The central tools are administrative correction of the record, reconsideration of the promotion by a special board, and, if those fail, review in federal court. This article walks through how each works and how they fit together.

First, clear the underlying record

A promotion challenge built on an overturned misconduct finding starts with making sure the record actually reflects that the finding is gone. If a court-martial conviction was reversed, a nonjudicial punishment was set aside, an adverse evaluation was based on the misconduct, or a reprimand was filed because of it, those documents may still be sitting in the official file and may have been before the promotion board. The remedy is to have the tainted material removed or corrected so that the record no longer carries the discredited finding.

The principal mechanism for this is the relevant service Board for Correction of Military Records, the Army, Navy, Air Force, and Coast Guard boards that have broad authority to correct any military record to remove an error or injustice. These boards can order the removal of adverse documents, the correction of evaluations, and related changes that restore the record to what it should have been absent the overturned misconduct.

Seek promotion reconsideration through a special selection board

Correcting the record is often only half the battle, because the missed promotion still has to be revisited. The dedicated tool for that is the special selection board, governed by federal statute at 10 U.S.C. 628 for officers. A special selection board reconsiders an officer for promotion as though the original board had seen a proper record.

The statute allows a special selection board when the original promotion board acted contrary to law in a material way, made a material error of fact or material administrative error, or did not have before it material information. An overturned misconduct finding fits these grounds well. If the original board passed over the officer because of adverse material that has since been invalidated, the board either acted on a material error or lacked the correct information about the officer. The special …

Not every urine sample a commander can lawfully order can later be used to convict at a court-martial. The military draws a careful distinction between the authority to compel a service member to provide urine and the separate question of whether the resulting evidence may be introduced to prove a criminal charge. Several restrictions, grounded in the Military Rules of Evidence and in service limited-use policies, govern when a compelled urinalysis may support prosecution. Understanding these limits is essential, because a positive result is not always admissible evidence of guilt.

The Different Reasons a Sample Is Collected

The admissibility of a compelled urinalysis turns first on why it was collected. The armed forces obtain urine through several mechanisms, and they are not treated alike. A unit inspection, a probable-cause search, a consent collection, a medical examination, and a command-directed test each carry different legal consequences for later use at trial. The label matters, because the basis for the collection determines whether the result is freely usable, usable only in limited ways, or barred from a criminal prosecution altogether.

Inspection Urinalysis Under MRE 313

The most common collection method is the unit inspection. Military Rule of Evidence 313 permits an examination of all or part of a unit, conducted as an incident of command, whose primary purpose is to ensure the security, military fitness, or good order and discipline of the unit. An order to produce body fluids such as urine is permissible as part of such an inspection. If the government establishes by clear and convincing evidence that the collection was a genuine inspection, the resulting evidence is admissible without satisfying the warrant-like requirements that govern other searches.

The rule also contains safeguards against abuse. When an examination is conducted immediately after a report of an offense, has not been previously scheduled, or singles out specific members, the rule treats it with suspicion and raises the government’s burden, because such circumstances suggest the true purpose was to gather evidence against particular individuals rather than to assure unit fitness. A collection that is really a subterfuge for a criminal search loses the protection of the inspection rule.

Probable-Cause and Consent Collections

A urinalysis ordered on probable cause, with proper authorization, stands on the same footing as any lawful search and its results are generally admissible at a court-martial. A sample provided through valid, voluntary consent is likewise usable, provided the consent …

Yes. Sarcasm and a mocking tone can lead to prosecution under Article 89 of the UCMJ, the article that punishes disrespect toward a superior commissioned officer. This surprises many service members, who assume that disrespect requires profanity, a direct insult, or a refusal to obey. Article 89 reaches more than that. It targets contempt and disrespect conveyed through language, deportment, or otherwise, and the manner in which something is said can carry the disrespect even when the literal words seem harmless. Tone, in other words, is squarely within the article’s reach.

What Article 89 covers

Article 89, codified at 10 U.S.C. 889, makes it an offense to behave with disrespect toward a superior commissioned officer. The statute applies to officers and enlisted members alike. To obtain a conviction for the disrespect form of the offense, the government must prove several elements: that the accused did or omitted certain acts, or used certain language, toward a commissioned officer; that the officer was the superior commissioned officer of the accused; that the accused knew the officer was the accused’s superior commissioned officer; and that, under the circumstances, the behavior or language was disrespectful to that officer.

Two of these elements deserve emphasis for the present question. The conduct can take the form of acts, omissions, or words, which means non-verbal behavior and tone count. And the disrespect is judged under the circumstances, which means context is everything.

Disrespect by manner, not just by words

The Manual for Courts-Martial describes disrespect in a way that plainly includes tone and demeanor. Disrespect by words may be shown by abusive epithets or other contemptuous or denunciatory language. Disrespect by acts includes neglecting the customary salute and showing marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness toward the superior officer.

Sarcasm and a mocking tone fit naturally within “marked disdain,” “insolence,” “impertinence,” and “other rudeness.” A response that is technically polite on paper can be delivered in a way that drips contempt. A mock-deferential “yes, sir, whatever you say, sir,” an exaggerated salute performed to ridicule, a sneering repetition of an order, or a sarcastic remark that belittles the officer in front of others can each constitute disrespect by manner. The article does not require obscenity or a direct insult. It requires that the behavior, taken in context, communicate contempt or disrespect.

A statement can be both truthful and disrespectful

A common defense instinct …

Article 90 of the UCMJ addresses one of the most serious forms of insubordination in the armed forces: willfully disobeying a superior commissioned officer. Because the charge strikes at the chain of command, it carries heavy potential consequences, and the prosecution must prove every element beyond a reasonable doubt. It is also important to understand what Article 90 covers today. The 2019 reforms under the Military Justice Act renumbered and reorganized several punitive articles, and the assault-on-a-superior-officer conduct that older summaries associate with Article 90 was moved out of this article. As currently codified at 10 U.S.C. 890, Article 90 addresses willful disobedience of a lawful command of one’s superior commissioned officer.

The current scope of Article 90

The present version of the statute provides that any person subject to the UCMJ who willfully disobeys a lawful command of that person’s superior commissioned officer shall be punished as a court-martial may direct, with a more severe maximum available in time of war. The reorganization matters because a member or family member researching the article may find older descriptions that lump together assaulting and disobeying a superior officer. Under the current structure, the assault conduct is handled separately, and Article 90 itself is focused on the willful disobedience offense. Getting this right affects how the elements are framed and what the government must establish.

Element one: a lawful command from a superior commissioned officer

The prosecution must first prove that the accused received a lawful command issued by a superior commissioned officer. Several pieces are packed into this element. There must be an actual command, meaning a specific, personal order directed to the accused, as opposed to a general regulation or a previously established standing duty. The command must come from a commissioned officer, and that officer must be superior to the accused. And the command must be lawful. A command is generally presumed lawful, but it can be challenged. To be lawful, an order must relate to a legitimate military duty and fall within the officer’s authority; an order to commit an unlawful act, or one that has no valid military purpose, is not a lawful command and cannot support an Article 90 conviction.

Element two: the officer was the accused’s superior commissioned officer

The second element requires proof that the officer giving the command was in fact the superior commissioned officer of the accused. Superiority can arise from the …

Many civilians work on military installations under contracts to support operations, maintenance, food service, construction, technology, and a long list of other functions. Access to the installation is a precondition of that work, and that access is not a contractual entitlement. It is a privilege controlled by the installation commander. So when a command recommends revoking a contractor employee’s base access, the worker can lose the ability to perform a job, and sometimes the job itself, often quickly. The question of what procedural rights attach in that moment is real, but the honest answer is that those rights are narrower than the rights that protect a criminal defendant or even a federal employee facing discipline. They flow mainly from the source of the commander’s authority, from regulation and installation policy, and from limited avenues of review rather than from a full adversarial hearing.

The source of the commander’s authority

Authority to control who enters a military installation rests with the installation commander. The commander’s power to exclude is backed by federal law. Under 18 U.S.C. 1382, a person who reenters a military installation after having been ordered not to do so by the commanding officer can be prosecuted for unlawful entry. This statute gives teeth to a barment or debarment order and explains why a contractor cannot simply ignore a revocation of access.

Because the commander’s control over installation access is treated as an inherent aspect of command, courts and boards have been reluctant to second-guess it. The commander is responsible for the security and good order of the installation, and decisions about who may be present are tied directly to that responsibility. That framing shapes everything about the procedural rights that follow, because it locates the decision in the realm of command discretion rather than in the realm of formal individual entitlements.

What procedural protections typically apply

Even though base access is a privilege, the action is not supposed to be arbitrary, and several practical protections commonly attach. The most basic is written notice. A barment or revocation is ordinarily communicated in a written letter that identifies the person, states that access is being revoked or barred, and explains the basis for the action and its duration. Notice matters because it tells the contractor employee what conduct or concern prompted the action and creates the record needed to respond or appeal.

A second protection is an opportunity to respond. …

Article 88 of the Uniform Code of Military Justice makes it an offense for a commissioned officer to use contemptuous words against certain officials. As more officers maintain personal blogs, email newsletters, and social media accounts, a recurring question arises: does writing on these personal platforms count as the kind of expression that can be charged under Article 88, even when the officer thinks of it as a private outlet? The short answer is that the platform’s label matters far less than whether the words reached someone other than the speaker and whether they were truly contemptuous.

What Article 88 actually prohibits

Article 88 applies only to commissioned officers. Enlisted members cannot be convicted under it, although their similar speech may be addressed under other articles. The statute makes punishable the use of 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.

To obtain a conviction, the prosecution 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 an act of the accused those words came to the knowledge of a person other than the accused, and that the words were contemptuous, either in themselves or by the circumstances in which they were used. The third element, that the words reached someone else, is the one that makes the blog-and-newsletter question turn out the way it does.

Public and private capacity are not the dividing line

A common misconception is that Article 88 reaches only formal, public statements and exempts anything an officer labels personal. The article does not draw that line. It is immaterial whether the words were used in an official or a private capacity. What the statute requires is that the words be contemptuous and that, through some act of the accused, they become known to another person. An officer cannot insulate contemptuous words simply by calling the platform personal.

That said, the practical treatment of purely private communication differs from the treatment of disseminated communication. Opinions expressed in a genuinely private conversation are rarely charged, and the authorities recognize that such purely private remarks ordinarily should not be charged. The reason is not that private …

Article 87 of the Uniform Code of Military Justice, codified at 10 U.S.C. 887, punishes a service member who, through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required in the course of duty to move. Because the offense requires a culpable mental state, an absence caused by genuine illness can be a defense. The strength of that defense, however, depends on the facts. Illness that truly made it impossible to move, and that the member could not have anticipated or mitigated, undermines the charge. Illness that the member could have managed, reported, or worked around may not.

The mental state Article 87 requires

The defense begins with the elements of the offense. 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, and that the accused missed it through design or neglect. Design means the member intentionally missed the movement, acting with a purpose to do so. Neglect means the member failed to take measures that were reasonable under the circumstances to be present, or acted without adequate attention to the likely consequences. Both theories require fault. A member who misses a movement through no culpable act or omission has not satisfied either mental state, and that gap is where an illness defense operates.

Illness that negates design

When the government charges missing movement by design, it must prove that the member intentionally missed the movement. Genuine incapacitating illness is inconsistent with that intent. A member hospitalized with a serious condition, rendered unable to travel by a sudden medical emergency, or otherwise physically unable to reach the point of departure did not choose to miss the movement. The illness rebuts the claim of purposeful absence. In a design case, evidence of an authentic medical incapacity striking at or near the time of movement is a direct answer to the central allegation that the member meant to be absent.

Illness and the neglect theory

The harder question arises when the government charges missing movement by neglect, because neglect turns on whether the member acted reasonably under the circumstances. Here illness is a defense only to the extent the member behaved reasonably in light of it. If a sudden, unforeseeable, and genuinely disabling illness prevented the member from moving despite the member …

Military Rule of Evidence 412, often called the military rape shield rule, controls when a party may introduce evidence about an alleged victim’s prior sexual behavior or sexual predisposition in a sexual offense case tried by court-martial. The rule starts from a position of broad exclusion. Its limitations are the heart of how it works, because the default answer to any offered piece of sexual history evidence is that it stays out unless a specific, narrow door opens and a judge agrees to open it.

The general prohibition

The rule bars two categories of proof when offered against an alleged victim in a case involving an alleged sexual offense. The first is evidence offered to prove that the alleged victim engaged in other sexual behavior. The second is evidence offered to prove the alleged victim’s sexual predisposition. This covers far more than testimony about prior sexual partners. It reaches reputation evidence, opinion evidence, and any commentary that invites the panel to draw conclusions about an alleged victim’s lifestyle, dress, or attitudes. The purpose is to keep trials focused on the charged conduct rather than on the character of the person reporting it, and to remove a disincentive that historically discouraged people from coming forward.

The three exceptions

The rule recognizes only three pathways to admission, and each is constrained.

The first exception allows specific instances of sexual behavior offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. This is a tightly bounded scientific-style exception, not an invitation to explore an alleged victim’s history generally.

The second exception allows specific instances of sexual behavior between the alleged victim and the accused. It can be offered by the prosecution for any purpose, and by the defense when offered to prove consent. The exception is limited to behavior with the accused, not with third parties.

The third exception is the constitutional exception. It permits evidence whose exclusion would violate the constitutional rights of the accused, including the rights to confrontation and to present a defense. Courts treat this as the most important and most litigated avenue, because it is where genuine fair-trial concerns are weighed. Even here, the evidence must be relevant, material, and favorable to the defense, and the analysis is case specific rather than automatic.

The probative value standard

Falling within an exception is necessary but not sufficient. For evidence …

Before a serious charge can be referred to a general court-martial, the military justice system requires a preliminary hearing under Article 32 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 832. Witnesses testify, the accused may make statements or present evidence, and a hearing officer evaluates probable cause. A natural question follows: if a witness or the accused speaks during that hearing, can what they said be used later at the court-martial itself? The answer is that it sometimes can, but only within the limits set by the Military Rules of Evidence (MRE) and the Sixth Amendment’s Confrontation Clause. This article explains when prior hearing statements come into the trial and when they stay out.

The preliminary hearing is not a mini-trial

The Article 32 preliminary hearing exists to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to consider the form of the charges, and to recommend a disposition. Under Rule for Courts-Martial (RCM) 405, the hearing officer may consider evidence that would not necessarily be admissible at trial, so long as it is relevant. That relaxed standard at the hearing does not mean that everything said there is automatically usable later. Admissibility at the court-martial is governed by the trial rules, not the hearing rules.

Prior testimony of an unavailable witness

The most common way a witness’s hearing statement reaches the trial is through the former testimony exception to the hearsay rule, MRE 804(b)(1). That rule allows admission of testimony given at an earlier proceeding if the witness is unavailable at trial and the party against whom the testimony is now offered had an opportunity and similar motive to develop it by direct, cross, or redirect examination at the earlier hearing.

This is where the procedural posture of the Article 32 hearing matters. The defense ordinarily has the right to be present and to cross-examine witnesses at the preliminary hearing. When that opportunity existed and the motive to cross-examine was similar to the motive at trial, an unavailable witness’s recorded preliminary hearing testimony may be admitted as substantive evidence. The Confrontation Clause is satisfied in that circumstance because the accused had a prior opportunity to confront the witness. If the witness is available at trial, however, the live testimony is expected, and the prior statement is not admitted as a substitute simply because it …